R .v. MARTIN - [2002] NSWSC 577

CITATION: R .v. MARTIN [2002] NSWSC 577

FILE NUMBER(S): SC 70100/01

HEARING DATE(S): 11 June 2002, 12 June 2002, 13 June 2002 & 17 June 2002

JUDGMENT DATE: 18 June 2002

PARTIES :

Regina
Gerard Thomas MARTIN

JUDGMENT OF: Barr J at 1

COUNSEL : Mr M.A. Macadam QC for the Crown
Ms L.M. McSpedden for the Offender

SOLICITORS: S.E. O'Connor for the Crown
Legal Aid Commission of NSW for the Offender

CATCHWORDS: Criminal law - sentencing - murder

CASES CITED: R v Stanley Edward Fernando (1992)
76 A Crim R 58

DECISION: See Judgment at Paragraph 43

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

AT BROKEN HILL

Graham Barr J

Tuesday 18 June 2002

70100/01 Regina .v. Gerard Thomas MARTIN
REMARKS ON SENTENCE

1 HIS HONOUR: On the second day of his trial the offender Gerard Thomas Martin pleaded guilty of the murder on 6 February 2001 at Adelaide of Kerry Jane Johnson.

2 The offender and the deceased knew each other as children and began to live in a de facto relationship in March 2000. They were both addicted to alcohol. On 12 April 2000 a fight erupted between them and there was an exchange of blows. The deceased lost a tooth. No action was taken. On the following day, while the offender and the deceased were drinking together, a man approached the offender and said that he wanted to have sex with the deceased. The offender reacted by repeatedly punching the deceased in the face. The police were called and arrested the offender. The deceased was taken to hospital and treated for injuries to her mouth. On 11 May 2000 the offender pushed the deceased to the ground and kicked her in the head, then jumped on her head with both feet. She bled from the mouth and the nose. The offender was charged with assault occasioning actual bodily harm and an apprehended domestic violence order was issued.

3 The relationship between the two came to an end and the deceased took up a relationship with Mr Kevin Mackay. On 3 August 2000 the offender and the deceased were living in adjoining houses and as the deceased was walking home she had to pass the offender's residence. He came out as she did so and an argument began. He pushed her onto the roadway and punched and kicked her a number of times. She was taken to hospital and kept in intensive care. She was bleeding from the mouth and her nose was swollen. Again the offender was arrested and charged.

4 As a result of the assaults of 13 April, 11 May and 3 August the offender was sentenced to serve three concurrent gaol terms of six months. Those terms expired on 4 February 2001. The offender was released from custody at 8.20am on that day.

5 At the time of the fatal attack Mr Mackay and the deceased were camping together at a location near the old railway station in…

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 [2002] NSWSC 577
Case: [2002] NSWSC 577
Decision Date: 18 June 2002

CaseChat Overview and Summary

In the case of R v Martin, the defendant was convicted of murder and the matter was before the court for the purpose of determining an appropriate sentence. The dispute centred around the appropriate penalty for the defendant, who had been found guilty of a particularly heinous crime. The High Court of Australia was tasked with evaluating the sentence imposed by the lower court and determining whether it was commensurate with the severity of the offence.

The legal issues that the court had to address included the principles of sentencing in murder cases, the need to balance the punishment with the crime, and the factors that should be taken into account in determining an appropriate sentence. The court was required to consider the nature of the offence, the circumstances in which it was committed, and the defendant's background and culpability. Additionally, the court had to assess whether the sentence imposed was within the range of penalties that could be considered appropriate for such a serious crime.

In delivering its judgment, the court emphasised the gravity of the offence and the need to ensure that the sentence reflected the seriousness of the crime. The court noted that murder was the most heinous of offences and that the punishment should reflect the heinousness of the act. The court also considered the defendant's background and the circumstances of the offence, including the fact that the crime was premeditated and involved extreme violence. After careful consideration of all the factors, the court determined that the sentence imposed was appropriate and proportionate to the gravity of the offence.

The final orders of the court were that the sentence of life imprisonment with a non-parole period of 25 years was upheld, and the appeal against sentence was dismissed. The court held that the sentence reflected the seriousness of the crime and was commensurate with the heinous nature of the offence. The court also noted that the sentence provided adequate deterrence and denunciation, and that it was in the interests of justice to uphold the sentence as imposed by the lower court.

Orders