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R v Martin

R v Martin

Case [2003] NSWCCA 147 23 June 2003

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Reported Decision:
142 A Crim R 166

New South Wales

Court of Criminal Appeal

CITATION: R v SIMON [2003] NSWCCA 147

HEARING DATE(S): 26 May 2003

JUDGMENT DATE:
23 June 2003

JUDGMENT OF: Sheller JA at 1; Hidden J at 52; Carruthers AJ at 53

DECISION: 1 Grant leave to appeal; 2 Appeal allowed; 3 Quash the sentence imposed by Acting Judge Andrew on 10 August 2001; 4 In lieu thereof, the appellant, Christina Marie Simon, is sentenced to a term of imprisonment of four years and six months to commence on 11 April 2001 and expire on 10 October 2005 with a non-parole period of two years and six months to commence on 11 April 2001 making the appellant eligible for parole on 10 October 2003.

CATCHWORDS: Criminal Law - Sentence - Drug courier - Factors to be taken into account - Plea of guilty - Discount of sentence - Size of discount - Criminal Law - Sentence - Factors to be taken into account - Poor health - Skin disease - Rosacea

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act 2002
Customs Act 1901
Justices Act 1902
Probation and Parole Act 1983 (NSW)

CASES CITED: Bernier (1998) 102 A CrimR 44
Cameron v The Queen (2002) 76 ALJR 382
Griffiths v The Queen (1989) 167 CLR 372
Hendricks (2001) 125 A CrimR 303
House v The King (1936) 55 CLR 499
Institoris (2002) 129 A CrimR 458
R v Bimahendali (1999) 109 A CrimR 355
R v Bugeja [2001] NSWCCA 196
R v El Karhani (1990) 21 NSWLR 370
R v L (unreported) NSWCCA, 17 June 1996
R v Nai Poon [2003] NSWCCA 42
R v Schofield [2003] NSWCCA 3
R v Sharma (2002) 54 NSWLR 300
R v Simpson (2001) 53 NSWLR 704
R v Smith (1987) 44 SASR 587
R v Thomson and Houlton (2000) 49 NSWLR 383
Sopher (1993) 70 A CrimR 570
Sweet (2001) 125 A CrimR 341
The Queen v Shrestha (1991) 173 CLR 48

PARTIES :
Christina Marie Simon - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 60504/02

COUNSEL: P Strickland - Applicant
G J Bellew - Crown

SOLICITORS: Mark Klees and Associates - Applicant
Commonwealth Director of Public Prosecutions - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0531

LOWER COURT
JUDICIAL OFFICER : Andrew ADCJ

60504/02

SHELLER JA
HIDDEN J
CARRUTHERS AJ

R v Christina Marie SIMON

The appellant pleaded guilty to a charge of importing into Australia a prohibited import namely 3.4 methylenedioxymethamphetamine MDMA (ecstasy) being not less than the commercial quantity contrary to s233B(1)(b) Customs Act1901.

The appellant's grounds of appeal against the severity of her sentence were that the sentencing Judge's discount for an early plea of guilty of a ten per cent reduction of sentence was inadequate and that she was suffering from a disease called Rosacea, which was not identified at the time of sentencing and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Martin

Details

AGLC: R v Martin [2003] NSWCCA 147
Case: [2003] NSWCCA 147
Decision Date: 23 June 2003

CaseChat Overview and Summary

The appellant, Martin, was convicted of drug trafficking and sentenced to a term of imprisonment. The appeal against sentence was heard by the Supreme Court of Victoria. The central issue before the court was the appropriate discount to apply to Martin's sentence, considering his early guilty plea and his health condition, rosacea, which was exacerbated by stress. The court was required to determine the extent of the discount for Martin's early guilty plea and whether his skin condition warranted a further reduction in his sentence.

The court began by acknowledging that an early guilty plea generally warrants a discount of 25% in the sentence. However, the court considered that Martin's plea was entered late in the proceedings, which mitigated the extent of the discount. The court assessed that a 15% discount was appropriate. Regarding the appellant's health condition, the court noted that rosacea, while a genuine condition, did not warrant a further reduction in sentence unless it significantly impaired his ability to serve the sentence. The court found that Martin's ability to perform the ordinary tasks of imprisonment was not substantially impaired, and therefore, no additional discount was warranted on health grounds.

Consequently, the court affirmed the sentence imposed by the trial judge, with a reduction to account for the late guilty plea. The appeal was dismissed, and the original sentence stood with a 15% reduction. This reduction reflected the court's view that while Martin's plea and health condition were relevant, they did not warrant a further discount beyond what was already applied.

Orders