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 a reparation order, pursuant to s 21B of the Crimes Act, in that amount.

Subjective case

5 The applicant was fifty eight years old at the time of sentence and is now fifty nine. He has no prior convictions. He was married and the union produced six children, but he separated from his wife in the 1970’s. He formed a new relationship in 1979 but, tragically, his partner drowned in 1993. Thereafter he remained unattached.

6 He has had a long-standing problem of alcohol abuse, has been a heavy smoker, and suffers from a number of illnesses. Before his Honour were several medical reports, including a report from his general practitioner which disclosed the following:

I certify that I have known Ronald Martinsen as a patient of my practice since 1997. Over that period of time his chronic diseases have deteriorated. He suffers chronic airways limitations and chronic bronchitis, exacerbated by smoking, causing shortness of breath. He has been a very heavy alcohol drinker which is causing peripheral neuropathy and cerebral and cerebellar degeneration. This is affecting Mr Martinsen’s balance and causing glove and stocking alteration in sensation in his limbs. Mr Martinsen also suffers chronic back pain with evidence of compressed fracture of L1 and loss of bone density of his lumbar vertebrae on x-ray, indicating osteoporosis. This makes him more susceptible to fractures from simple falls. He complains of back pain which could be due to his degenerative disease of his lumbar spine, also shown on x-ray.

7 From a separate report of that general practitioner it appears that the applicant also suffers from “poor vision due to cataracts and glaucoma.” This was confirmed in the report of an ophthalmologist .

The application

8 In this Court the applicant was represented by Ms Francis of counsel, who had not appeared in the District Court. She did not challenge the head sentence of two years. Her only submission was that, in determining the custodial period of sixteen months before the applicant’s release on recognizance, his Honour failed to give adequate weight to the evidence of his age and state of health. What his Honour had to say in his remarks on that subject was this:

He is now at an age where people do have some health problems and there is evidence of health problems not untypical with age. I note here he suffers chronic airways limitations, bronchitis exacerbated by smoking, shortness of breath. He suffers chronic back pain with evidence of compressed fracture and loss of bone density of his lumbar vertebra indicating osteoporosis.

9 His Honour went on to consider the need for a deterrent sentence, noting that this was not a case where there were “special circumstances” arising from “special illness” or “special deprivation …”. He then continued:

I cannot find any special circumstances as I have noted his age and the fact at that age he has these health problems which are not untypical.

10 Ms Francis’ complaint is that his Honour made no reference to the applicant’s problem with his eyesight and that, generally, those remarks understate the seriousness and significance of his poor state of health. At the hearing of the appeal we received further evidence, comprising an affidavit of the applicant and an affidavit of his solicitor to which is annexed material from the Corrections Health Service and some of the applicant’s custodial records. Without objection, this evidence was received on the merit of the application upon the basis that it tended to show the true significance of the applicant’s illness, evidence of which was before the sentencing judge: cf R v Smith (1987) 44 SASR 587; R v Bailey (1988) 35 A Crim R 458.

11 That new evidence discloses a deterioration of the applicant’s condition since he has been in custody. In particular, he suffers considerable pain because of his back problem, he cannot see properly with his right eye, and he experiences increasing blurriness of vision from his left eye. His poor eyesight makes it difficult for him to watch television and he can read only for short periods of time. His general physical condition is such that he cannot participate in many of the activities available within the prison, and he feels particularly vulnerable to any physical threat.

12 In his affidavit he also said that he had not been given any physiotherapy for his back condition and had not undergone eye surgery, although surgery had been recommended by the ophthalmologist whose report was before his Honour. However, there is no evidence before us about the immediacy of the applicant’s need for physiotherapy or eye surgery, or about whether treatment of that kind is available within the prison system. That being so, Ms Francis did not rely upon those parts of the affidavit.

13 The authorities on the relevance to sentencing of an offender’s illness were reviewed in Reg v L (CCA, unreported, 17.6.96) at pp 6-8. The effect of illness on the determination of sentence depends upon the facts of each case, but it is well recognised as a mitigating factor where it renders the offender’s experience of prison more burdensome. That this is such a case emerges from the evidence before us which was not before his Honour. Generally, it must be said that the whole of the evidence demonstrates that the applicant’s state of health is more serious than his Honour’s observations would appear to recognise.

14 That said, the question remains whether this Court should now intervene. The offence of defrauding the Commonwealth and the related offences on the schedule disclose serious criminality, involving systematic fraud over an extended period of time. The sentence of two years imprisonment is a moderate one and, as I have said, it is not challenged. The period of sixteen months which his Honour required the applicant to serve before release on recognizance is two-thirds of the sentence, and is consistent with the norm for non-parole periods for Commonwealth offences: R v Bernier (1998) 102 A Crim R 44 at 49. Making all due allowance for the applicant’s illnesses, a custodial period of that length remains an appropriate reflection of his criminality. The effect of his Honour’s order is that he will be released on recognizance on 24 October this year, less than five months hence.

15 The application has merit but, in all the circumstances, I am not persuaded that any lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act. I would grant leave to appeal but would dismiss the appeal.

16 CARRUTHERS AJ: I agree with Hidden J.

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Last Modified: 06/04/2003