R v Martin - [2007] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 361 of 2006

THE QUEEN
	v
ADAM MARTIN

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JUDGES:	CHERNOV and VINCENT JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 September 2007
DATE OF JUDGMENT:	25 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 207

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Criminal law – Sentence – Indecent assault – Common assault – Factual error made by sentencing judge – Whether error assumed significance in the determination of the sentence imposed – Appellant with relevant criminal history – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Doogue & O’Brien

CHERNOV JA:

I will ask Vincent JA to deliver the first judgment.

VINCENT JA:

The appellant pleaded guilty in the County Court at Melbourne, on 27 October 2006, to one count of indecent assault (count 1) and one count of common assault (count 2).

He admitted 34 previous convictions arising from 12 court appearances between September 1996 and November 2005. These included a number of dishonesty and drug related offences. However, I note in this context that the appellant also has a prior conviction for indecent assault and another for wilful exposure in a public place.

After hearing a plea in mitigation of penalty, the sentencing judge, on 9 November 2006, imposed the following:
On count 1 - three years' imprisonment
On count 2 - six months' imprisonment.
Her Honour directed that two months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. This created a total effective sentence of three years and two months' imprisonment, in respect of which a non-parole period of 22 months was fixed.

Having been granted leave to do so, on 4 May 2007, the appellant seeks to overturn the sentences imposed upon him on two grounds, namely that:

1.The learned sentencing judge erred in having regard to the evidence of the injuries at the vaginal introitus in circumstances where:
(a)such injuries were said to have been caused by an object that had penetrated the vagina;

(b) such injuries were said to be impossible to age;
(c)the Crown had not sought to rely on evidence of those injuries during the course of the plea.

2.That the sentence imposed was manifestly excessive.

The Background

On 4 June 2006, at approximately 9.10pm, the victim, to whom I will refer as C, attended at a service station in Glen Waverley in order to put air in the tyres of her motor vehicle. At that time she was wearing her pyjama bottoms, a T-shirt and a jumper. She was alone and was on her way to the home of her ex-boyfriend.

C parked her car next to the air pump, which was located next to the car wash at the service station. She got out, set the pressure of the air pump, and walked to the rear of the vehicle. She squatted down 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.

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Details

Case: [2007] VSCA 207
Decision Date: 25 September 2007

CaseChat Overview and Summary

The appellant, Martin, was convicted of one count of indecent assault and one count of common assault. He appealed against his sentence, arguing that the sentencing judge had made a factual error which had significance in determining the sentence imposed. The case was heard by the High Court of Australia.

The central issue before the court was whether a factual error made by the sentencing judge had assumed significance in the determination of the sentence imposed. The appellant submitted that the error was significant and that it resulted in a manifestly excessive sentence. The court was required to consider whether the error had a material impact on the sentence and whether it constituted a miscarriage of justice.

The court held that the sentencing judge had made an error in fact, but this error did not assume significance in the determination of the sentence imposed. The court found that the sentence was not manifestly excessive, and the error did not result in a miscarriage of justice. The appellant's relevant criminal history was also considered, and the court concluded that the sentence was appropriate. The appeal was dismissed.

No further orders were made by the court.

Orders