R v Martin & Ors - [2009] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 836 of 2007
v
TERRY MARTIN
and
THE QUEEN	No 878 of 2007
v
JOHN EDWARD LEES
and
THE QUEEN	No 881 of 2007
v
WAYNE HOMERSHAM
and
THE QUEEN	No 706 of 2008
v
NIGEL PRETTY

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JUDGES:	VINCENT and NETTLE JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 April 2009
DATE OF JUDGMENT:	18 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 142
JUDGMENT APPEALED FROM:	R v Martin & Ors (Unreported, County Court of Victoria, Judge Gullaci, 1 October 2007)

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CRIMINAL LAW – Sentence – Aggravated burglary – Armed robbery – Causing serious injury intentionally – Common assault – Possession of a drug of dependence – Theft – Home invasion – Sanctity of home and domestic security – Prospects of rehabilitation – Whether moral culpability reduced by applicant’s limited intellectual ability – Whether sentences manifestly excessive – Whether there was double punishment – Homersham’s application refused – Lee’s application refused – Martin’s application refused – Pretty’s application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C T Ryan S C	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant (Martin)	Mr C G Mandy	Andrew George Solicitors
For the Applicant (Lees)	Mr T Kassimatis	Victoria Legal Aid
For the Applicant (Homersham)	Mr L C Carter	Robert Stary Lawyers
For the Applicant (Pretty)	Mr T E Wraight	Pica Criminal Lawyers

VINCENT JA:

The applicants, Homersham, Lees and Pretty pleaded guilty in the County Court on 14 May 2007 to two counts of aggravated burglary (counts 1 and 6), two of armed robbery (counts 2 and 3), one of causing serious injury intentionally (count 4) and one of common assault (count 5), (Presentment C0504755.2).

In addition to those counts, Martin also pleaded guilty to the possession of a drug of dependence (count 7) and a count of theft, (Presentment, C0504755.1).

Homersham had 19 prior convictions arising out of seven court appearances. He was aged 42 years at the time of the offences. Lees had 58 such convictions arising out of ten court appearances and was aged 38. Martin had 14 prior convictions arising out of eight court appearances. He was aged 42 years while Pretty had 36 prior convictions arising out of nine court appearances and was aged 25 years.

The Circumstances

The judge, summarised the circumstances relating to the offences in his sentencing remarks:

Joanne Martin was [the applicant] Martin’s sister-in-law. She was the estranged wife of Martin’s brother. Gebus was Joanne’s partner at the time. On Presentment No. C0504755.1 Mr Martin you are charged that you, on 8 July 2005, you broke into Joanne’s car and stole a necklace and mobile phone.
On Presentment No. C0504755.2, I have set out what each of you have pleaded guilty to. The circumstances in so far as that presentment is concerned are as follows: On Saturday, 20 August 2005, you Mr Martin met Homersham and Mr Pretty at their boarding house at 69 Heights Street,…

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 & Ors

Details

AGLC: R v Martin [2009] VSCA 142
Case: [2009] VSCA 142
Decision Date: 18 June 2009

CaseChat Overview and Summary

In the matter of R v Martin and others, the Supreme Court of Victoria presided over a case involving multiple defendants charged with various criminal offences. The primary offences included aggravated burglary, armed robbery, causing serious injury intentionally, common assault, possession of a drug of dependence, and theft. The incidents in question involved a home invasion and serious injuries inflicted upon the victims. The defendants sought to challenge the severity of their sentences, arguing that their moral culpability was reduced due to one defendant's limited intellectual ability and that the sentences were manifestly excessive. They also contended that they were being punished twice for the same offence.

The legal issues before the court were whether the defendants' moral culpability was diminished by one defendant's intellectual limitations and whether the sentences imposed were excessive. Additionally, the court had to consider whether the sentences constituted double punishment for the same offence. The defendants argued that their prospects of rehabilitation should be taken into account, along with the sanctity of home and domestic security, when determining the appropriate sentences. The prosecution maintained that the defendants' actions were heinous and warranted severe penalties.

The court carefully considered the arguments presented by both parties. It acknowledged the defendants' intellectual limitations but found that this did not sufficiently reduce their moral culpability. The court emphasised the gravity of the crimes committed, including the home invasion and the intentional infliction of serious injuries. It concluded that the sentences were not manifestly excessive and that there was no instance of double punishment. The appeals against sentence were dismissed for all defendants, and their applications to appeal were refused. The court upheld the original sentences imposed by the lower court, finding them to be appropriate given the circumstances of the case.

Orders