R v Martin - [1996] QCA 162

[1996] QCA 162

COURT OF APPEAL

FITZGERALD P
WILLIAMS J
BYRNE J

CA No 53 of 1996

THE QUEEN

CRAIG ANTHONY GERARD MARTIN Applicant

BRISBANE

..DATE 14/05/96

JUDGMENT

THE PRESIDENT: This is an application for leave to appeal against a sentence imposed in the District Court by
Judge Boulton on 2 February 1996. The 33 year old applicant was there found to have been in breach, for a second time, of a community service order and orders with respect to restitution and sentenced to 15 months imprisonment and ordered to pay $2,205 restitution with no provision for default.

The original offences, a series of property offences, occurred between 16 October and 13 November 1992 and included two counts of stealing; one of forgery; one of uttering; one of attempted false pretence; and one of obtaining credit by fraud. To that time his only prior criminal history involved dishonesty offences in 1985 and 1986 for which he was convicted and fined and there is no indication that there has been an offence since 13 November 1992.

So far as the offences are concerned, the applicant, over a relatively brief period, systematically stole cheque leaves and forged and uttered them for a total of $9,410. The complainant husband and wife were close friends of the applicant who had a key to their house and removed cheques relating to a business account. The cheques were then deposited into his own account and he was said to have used the funds for gambling. He accepts that he had a gambling addiction at that time. On 3 May 1994 the complainants confronted the applicant who admitted the dishonesty and repaid $1,000. On 14 October that year he pleaded guilty to the counts brought against him, which I have detailed above.

At that time the Court was told of misfortune which the applicant had suffered. It seems that he had separated from his wife as a result of being caught out and subsequently his wife and child had been killed in a motor vehicle accident. The Court was also told that the applicant attended Gamblers Anonymous; had beaten his gambling addiction; that he had some funds to make restitution which he would supplement with a bank loan. Amongst the matters which he now tells us is that he was unable to proceed with that loan because the bank would not proceed once the matter was before the Courts.

The sentencing Judge, Judge Helman, as His Honour then was, accepted that the applicant genuinely desired to make restitution and accordingly ordered that he perform 240 hours community service with a condition that the balance, $8,410, be paid within two weeks, that is by 28 October 1994. On that day another District Court Judge, Judge Hoath, amended the original order by allowing a further two weeks to pay, that is to 11 November 1994.

On 19 May 1995 the applicant was dealt with for breach of the orders as he had repaid nothing and had only performed…

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 [1996] QCA 162
Case: [1996] QCA 162
Decision Date: 14 May 1996

CaseChat Overview and Summary

In the case of R v Martin, the applicant, Craig Anthony Gerard Martin, sought leave to appeal against a sentence imposed by the District Court. Martin was found to have breached a community service order and orders concerning restitution for the second time. The original offences, which took place between October 16 and November 13, 1992, included stealing, forgery, uttering, attempted false pretence, and obtaining credit by fraud. Martin had a history of dishonesty offences from 1985 and 1986 and was sentenced to 15 months imprisonment and ordered to pay $2,205 restitution.

The legal issues the court needed to decide were whether the sentence imposed by the District Court was manifestly excessive and if the applicant's submission for leniency was justified. The court had to assess the applicant's history of non-compliance with court orders and determine if the sentence was appropriate given the circumstances. The applicant argued that he had suffered personal tragedies, including the loss of his wife and child, and that these events contributed to his inability to comply with the court orders. The applicant also claimed that he had a gambling addiction, which he had overcome, and had taken steps to make restitution to the victims.

The court's reasoning and outcome were that the sentence imposed by the District Court was excessive. The court considered the applicant's history of non-compliance with court orders and found that leniency had been extended to him on previous occasions. The court was of the view that an imprisonment sentence was almost inevitable when the applicant came before Judge Bolton. The court decided that the appropriate sentence would have been a suspended sentence of imprisonment for five months, with an order for the applicant to make restitution to the victims within 15 months of his release from prison. The operational period for the suspended sentence was set at two years. The appeal was allowed by a majority, with Justice Byrne dissenting.

Orders