R v Martin - [1994] QCA 343

IN THE COURT OF APPEAL [1994] QCA 343

SUPREME COURT OF QUEENSLAND

C.A. No. 173 of 1994

Brisbane
[R. v. Martin]

BETWEEN:

T H E Q U E E N

RAYMOND PAUL MARTIN Applicant
Fitzgerald P. McPherson JA. Pincus JA.

Judgment delivered 06/09/94

Reasons for judgment of the President and McPherson JA, separate concurring reasons of Pincus JA.

Application for leave to appeal refused.

CATCHWORDS:CRIMINAL LAW - Sentence - calculation of sentence - applicant sentenced at different times for a variety of offences to additional period of imprisonment cumulative with current sentence - extensive criminal history - whether calculation of total sentence manifestly excessive

Counsel:Mr. P. Ridgway, with him Mr. P. Bannister for the Crown
Applicant appeared on his own behalf
Solicitors:Director of Prosecutions for the Crown
Applicant appeared on his own behalf
Hearing Date:26/07/94

REASONS FOR JUDGMENT - FITZGERALD P. and McPHERSON JA.

Judgment delivered 06/09/94

The applicant, Raymond Paul Martin, applied for leave to appeal against two sentences, one imposed on him on 25 March 1994 in the District Court at Brisbane and the other imposed on him on 29 April 1994 in the Magistrates Court at Brisbane. At the hearing, he abandoned the former application, which was then formally refused.

Martin, who was born on 11 July 1963 and is aged 29 years, has an extensive criminal history for a wide variety of offences of dishonesty and other property offences, along with a number of other offences associated with escape from custody and unlawfully being at large. There are in all sixty-three offences extending over a period of twelve years. In that period, he has also failed to appear to answer charges in Queensland and New South Wales more than once. He has been regularly sentenced to terms of imprisonment, including several terms made cumulative on other sentences. When he was sentenced on the two occasions now material, he was already in jail for other offences.

The District Court sentence was imposed in the following

circumstances.

On 9 May 1992, Martin was found in possession of instruments of house-breaking by night. He pleaded guilty and came up for sentence on 5 February, 1993. By that time he was in prison in respect of other offences. Despite his extensive record, the prosecution did not then seek a further custodial sentence, and he was ordered to perform two hundred hours of community service. He was released from prison on 18 June 1993 and should have commenced the community service from 22 June 1993. He failed to do so despite written demands in June and July. He was then taken into custody in relation to other matters in mid-July and was released again in mid-September 1993. He failed thereafter to report for community service as directed, despite written demands.

In October 1993, he was due to appear in the Brisbane Magistrates Court in respect of other offences but failed to do so. A warrant issued, but he had gone interstate.

On 9 February 1994, he was arrested in New…

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 [1994] QCA 343
Case: [1994] QCA 343
Decision Date: 6 September 1994

CaseChat Overview and Summary

In the case of R v Martin, Raymond Paul Martin sought leave to appeal against two sentences imposed on him in the District Court and Magistrates Court of Brisbane. The District Court sentenced Martin to two months imprisonment cumulative with his current sentence for failing to perform community service after being found in possession of instruments of house-breaking by night. The Magistrates Court imposed a sentence of twelve months imprisonment for three offences of unlawful use of a motor vehicle, which were made concurrent with each other but cumulative upon the term of five months then being served. Martin argued that the sentences were manifestly excessive and that the Magistrate had erred in discounting the sentence due to his extensive criminal history. The Court of Appeal examined whether the sentences were manifestly excessive and whether the Magistrate's consideration of Martin's extensive criminal history in discounting the sentence was appropriate.

The Court of Appeal considered the principles of sentencing and the factors to be taken into account in calculating a sentence. The Court noted that the sentences imposed on Martin were not excessive and that the Magistrate had made due allowance for his early pleas of guilty and full admissions, as well as the time he had already spent in custody. The Court also rejected the proposition that a lighter sentence should be given to someone with a bad criminal history on the basis that they are unlikely to be considered for parole. The Court concluded that Martin had been treated extremely leniently and had no legitimate cause for complaint.

The Court of Appeal, comprising Fitzgerald P, McPherson JA, and Pincus JA, unanimously refused Martin's application for leave to appeal. The Court found that the sentences imposed on Martin were not manifestly excessive and that the Magistrate had not erred in discounting the sentence due to his extensive criminal history. The Court emphasised that it is not appropriate to give a lighter sentence to someone with a bad criminal history on the basis that they are unlikely to be considered for parole. The Court also noted that Martin had been treated extremely leniently and had no legitimate cause for complaint.

The final orders of the Court of Appeal were to refuse Martin's application for leave to appeal against the sentences imposed on him by the District Court and Magistrates Court of Brisbane. The Court emphasised that the sentences imposed on Martin were not manifestly excessive and that the Magistrate had not erred in discounting the sentence due to his extensive criminal history. The Court also noted that Martin had been treated extremely leniently and had no legitimate cause for complaint.

Orders