R v Martin - [2011] VSC 217

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WARRNAMBOOL

CRIMINAL DIVISION

No. 0167 of 2010

THE QUEEN

JUSTIN DENNIS JAMES MARTIN

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JUDGE:	CURTAIN J
WHERE HELD:	Warrnambool
DATE OF HEARING:	9 and 10 May 2011
DATE OF SENTENCE:	20 May 2011
CASE MAY BE CITED AS:	R v Martin
MEDIUM NEUTRAL CITATION:	[2011] VSC 217

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CRIMINAL LAW – Sentence – Defensive homicide – Where R v Verdins (2007) 16 VR 269 and R v Tsiaras [1996] 1 VR 398 applicable – Plea of guilty to defensive homicide accepted by Director where murder originally charged – Whether taking further account of diminished moral culpability would amount to “double counting” – Criminal Procedure Act 2009 (Vic) s 160(2) – Public Prosecutions Act 1994 (Vic) s 24.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kissane	Office of Public Prosecutions
For the Accused	Mr B Stuart	Balmer & Associates

HER HONOUR:

Justin Dennis James Martin, you have pleaded guilty to one count of defensive homicide and have admitted prior convictions.

The deceased, Alan Baker, was 79 years old. He lived on his own in Murtoa and would daily frequent the local hotel to have his midday meal and bet on the TAB. You and he became friendly in the six months or so prior to January 2010.

On Wednesday 27 January 2010, at around 4.00pm in the afternoon, you went to the home of the deceased. According to you, Mr Baker had previously invited you to visit him earlier in that week. Together, you drank some beer and watched tennis on the television. It appears that your father rang you at approximately 5.20pm because you had not been to his home for dinner as was your custom, and you told him that you were at Mr Baker’s. Your father could hear Mr Baker’s voice in the background, saying that you were just playing music and having a beer. At some point in the late afternoon/early evening, you went to the local hotel and tried to cash a cheque to buy some beer, but the licensee refused to do so and you left empty-handed.

Later, during the night, you contend that Mr Baker made sexual advances to you, and it was in these circumstances that you “king hit” Mr Baker and kicked him in the head and stomach and, you told the police, stabbed him twice. After the assault, you sought the assistance of various neighbours. You knocked on the door of the house where Courtney Foreman lived. You spoke with her and told her that you had bashed Alan because he tried to rape you. You told her that you had hit him and that you thought he was dead. You also spoke with Robert Nikkelson, asking him to go with you to Alan Baker’s place, and you also went to the home of Paul Delahunty and told him that you had “punched up Bakes”, as you referred to him, and that you thought you had killed him.…

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 [2011] VSC 217
Case: [2011] VSC 217
Decision Date: 20 May 2011

CaseChat Overview and Summary

The defendant, Martin, faced the County Court of Victoria in a case involving a plea of guilty to the charge of defensive homicide, following an original charge of murder. The defendant had killed an individual in a situation where self-defence was claimed. The court was required to determine the appropriate sentence for the defendant, considering the circumstances and the plea agreement that had been entered into with the Director of Public Prosecutions. This involved examining the principles of sentencing in defensive homicide cases, particularly in light of the previous cases of R v Verdins and R v Tsiaras, and assessing whether the plea agreement and the principle of diminished moral culpability could both be appropriately considered without resulting in double counting of the mitigating factors.

The court examined the legal framework provided by the Criminal Procedure Act 2009 (Vic) and the Public Prosecutions Act 1994 (Vic), focusing on the proper interpretation of sections 160(2) and 24 respectively. The central issue was whether the plea of guilty, which was accepted by the Director of Public Prosecutions, should be given due weight in the sentencing process and if this would result in double counting if the court also considered the diminished moral culpability of the defendant. The court had to balance these considerations to ensure that the sentence was just and proportionate, reflecting both the plea agreement and the defendant's moral responsibility for the offence.

After thorough deliberation, the court determined that the plea agreement and the principle of diminished moral culpability could both be taken into account without resulting in double counting. The court emphasised the importance of the plea agreement in reducing the severity of the sentence and recognised the defendant's diminished moral culpability due to the circumstances of the offence. The court concluded that these factors could be appropriately considered together, ensuring a fair and balanced outcome that aligned with the legal principles and the specific facts of the case. The final sentence imposed by the court reflected these considerations, providing a just resolution to the matter.

The court issued an order that the defendant, Martin, be sentenced to a term of imprisonment with specific conditions and considerations as outlined in the judgment. The sentence was designed to reflect the plea agreement, the nature of the offence, and the diminished culpability of the defendant. The court's decision was based on a comprehensive analysis of the relevant legal principles and the unique circumstances of the case, ensuring that the outcome was both lawful and just.

Orders