R v Martinsen - [2003] NSWCCA 144

CITATION: Regina v Martinsen [2003] NSWCCA 144

HEARING DATE(S): 26/05/03

JUDGMENT DATE:
30 May 2003

JUDGMENT OF: Sheller JA at 1; Hidden J at 2; Carruthers AJ at 16

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - defrauding the Commonwealth - illness of applicant - whether any lesser sentence warranted.

LEGISLATION CITED: Crimes Act 1914 (C'th)
Criminal Appeal Act, 1912
Financial Transaction Reports Act, 1988 (C'th)

CASES CITED: R v Bailey (1988) 35 A Crim R 458
R v Bernier (1998) 102 A Crim R 44 at 49
R v L (CCA, unreported, 17.6.96) at pp 6-8
R v Smith (1987) 44 SASR 587

PARTIES :
Commonwealth Crown
Ronald Allan Martinsen

FILE NUMBER(S): CCA 60043/03

COUNSEL: M Allnutt - Commonwealth Crown
A Francis - Appellant

SOLICITORS: Commonwealth Director of Public Prosecutions
DJ Humphreys - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0018

LOWER COURT
JUDICIAL OFFICER : Woods ADCJ

60043/03

SHELLER JA
HIDDEN J
CARRUTHERS AJ
Friday, 30 May, 2003

REGINA v Ronald Allan MARTINSEN

Judgment

1 SHELLER JA: I agree with Hidden J.

2 HIDDEN J: The applicant, Ronald Allan Martinsen, pleaded guilty in the District Court to defrauding the Commonwealth, an offence under s 29 of the Crimes Act 1914 (C’th), carrying a maximum sentence of imprisonment for ten years. He also asked his Honour to take into account, on a schedule under s 16BA of the Crimes Act, offences of opening and operating a bank account without proper disclosure: s 24 of the Financial Transaction Reports Act 1988 (C’th). On the charge of defrauding the Commonwealth, taking those two further offences into account, his Honour sentenced the applicant to imprisonment for two years, directing his release on recognizance after sixteen months. He seeks leave to appeal against that sentence.

Facts

3 Given the manner in which the application was argued, it is unnecessary to recite the facts in any detail. It is sufficient to say that over a period of ten years the applicant claimed and received Social Security benefits in two names: Martinsen and Bealing, a name by which he was also known. He achieved this by supplying a volume of false documentation, as well opening and operating a bank account in the name of Bealing without disclosing to the bank that he already had an account in the name of Martinsen. It was his conduct in relation to that bank account which gave rise to the two offences on the schedule.

4 He was paid benefits legitimately under the name of Martinsen, but under the name of Bealing he received almost $80,000 to which he was not entitled. On the evidence, his Honour found that he had taken advantage of the fact that he was known by two names and that the offences were not the product of any pressing financial need. At the time of sentence payments to him had been withheld, so that about $78,000 remained outstanding. His Honour made…

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 Martinsen

Details

AGLC: R v Martinsen [2003] NSWCCA 144
Case: [2003] NSWCCA 144
Decision Date: 30 May 2003

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Martinsen, the case before the court was an application for leave to appeal against a sentence imposed by a lower court. Martinsen was found guilty of defrauding the Commonwealth and was sentenced accordingly. The applicant sought leave to appeal on the basis of his severe illness and argued that a lesser sentence would be more appropriate. The court was tasked with determining whether the applicant's illness warranted a reconsideration of the sentence imposed.

The legal issues that the court had to address were whether the severity of Martinsen's illness was such that it warranted a lesser sentence and whether there were any grounds for the appeal that had not been previously considered. The court had to balance the need for appropriate punishment with the applicant's health condition and assess if there were any legal errors in the original sentencing that could warrant an appeal.

The court considered the evidence presented regarding Martinsen's health and concluded that while his illness was severe, it did not warrant a substantial reduction in the sentence. The court found that the original sentencing took into account all relevant factors, including Martinsen's health, and that there were no legal errors that would warrant a reconsideration of the sentence. The court therefore dismissed the application for leave to appeal. The court's decision upheld the original sentence imposed on Martinsen, and no lesser sentence was warranted.

Orders