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Martin v R

Martin v R

Case [2022] NZCA 285 1 July 2022

Admissibility of Evidence

Appeal

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA182/2021
[2022] NZCA 285

BETWEEN	GREGORY JASON MARTIN Appellant
AND	THE QUEEN Respondent

Hearing:	15 February 2022
Court:	Goddard, Katz and Edwards JJ
Counsel:	C G Tuck and T D A Harré for Appellant J A Eng and T R Simpson for Respondent
Judgment:	1 July 2022 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
B The appeal against sentence is allowed.
CThe sentence of five years and six months’ imprisonment is quashed and substituted with a sentence of two years’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Table of contents

Para No

Introduction

Background

Pre-trial application to admit expert evidence

The trial

The Crown case
Mr Martin’s evidence
Question trail

Verdict

Sentencing

Psychiatric report
Other reports
Sentencing decision

Conviction appeal

Appellant’s submissions

Discussion

Sentence appeal

Appellant’s submissions
Crown submissions

Discussion

Result

Appendix: Question Trail

Introduction

Mr Martin, an unusually naive and gullible man, fell for a criminal scam. He was persuaded to travel to Thailand to sign some papers which, he was told, would result in payment of USD 10.5 million into his bank account. The “officials” he was dealing with advised him (after he arrived in Thailand) that he would also need to bring back to New Zealand a suitcase of “gifts” to be delivered to a “payment officer” in New Zealand. Shortly before he was due to leave Thailand, Mr Martin was given a suitcase containing the supposed gifts. He was concerned about the possibility that the case contained hidden drugs. He exchanged texts about his concerns with his sister, and also with the scammers. But he did not find anything untoward when he searched the suitcase, and the scammers reassured him everything was above board. He went to the airport and checked in his bags, including the suitcase, for his return flight to New Zealand. On his arrival at Auckland he declared that he was carrying luggage for another person. The suitcase was searched, and approximately 1.4 kg of methamphetamine was discovered.
Mr Martin was charged with importing methamphetamine. He pleaded not guilty. Following a trial before Judge Moala and a jury in the District Court, he was convicted. Judge Moala sentenced him to five years and six months’ imprisonment.[1]
[1]R v Martin [2021] NZDC 4099 [Sentencing notes].
Mr Martin appeals to this Court against both his conviction and sentence.

Background

We begin by setting out the background in a little more detail.
In January 2019 Mr Martin received an email, purportedly from officials of the “Nigeria Payment Review Unit”, advising him that he was a “beneficiary” and entitled to payment of USD 10.5 million. To obtain payment of that sum, he would need to pay a documentation fee of USD 650.
The email could hardly have been a more obvious scam. It was full of nonsensical and absurd statements, ungrammatical and strangely expressed. But Mr Martin appears to have taken it…

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 Martin v R

Details

AGLC: Martin v R [2022] NZCA 285
Case: [2022] NZCA 285
Decision Date: 1 July 2022 at 11.00 am

CaseChat Overview and Summary

Mr Martin appealed both his conviction and sentence. The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The sentence of five years and six months’ imprisonment was quashed and substituted with a sentence of two years’ imprisonment. Mr Martin was easily led and fell for a criminal scam. He was persuaded to travel to Thailand to sign some papers which, he was told, would result in payment of USD 10.5 million into his bank account. He was advised that he would also need to bring back to New Zealand a suitcase of “gifts” to be delivered to a “payment officer” in New Zealand. Shortly before he was due to leave Thailand, Mr Martin was given a suitcase containing the supposed gifts. He was concerned about the possibility that the case contained hidden drugs. He exchanged texts about his concerns with his sister, and also with the scammers. He searched the suitcase, and did not find anything untoward. He went to the airport and checked in his bags, including the suitcase, for his return flight to New Zealand. On his arrival at Auckland he declared that he was carrying luggage for another person. The suitcase was searched, and approximately 1.4 kg of methamphetamine was discovered. Mr Martin was charged with importing methamphetamine. He pleaded not guilty. Following a trial before Judge Moala and a jury in the District Court, he was convicted. Judge Moala sentenced him to five years and six months’ imprisonment. Mr Martin appealed both his conviction and sentence. The Court of Appeal dismissed the appeal against conviction. The appeal against sentence was allowed. The sentence of five years and six months’ imprisonment was quashed and substituted with a sentence of two years’ imprisonment. The Court of Appeal noted that the default approach in sentencing required significant adjustment to reflect the circumstances of the offending and Mr Martin’s personal circumstances. It noted that Mr Martin did not know he was carrying drugs. He did not want to carry drugs. He did not agree to do so. He did not seek to obtain any illicit gain. He did hope to receive a large (and fanciful) windfall from the scammers. But the offer of that windfall was not linked to any form of wrongdoing on his part. Once Mr Martin was told he was required to carry a bag back to New Zealand he recognised the risk it might contain illicit substances of some kind. But he made it clear he was not willing to be involved in any such enterprise. And he took three steps to reduce the risk of importing anything illicit. The Court of Appeal noted that Mr Martin took some blame for his conduct in the few hours he was an unwitting participant in the criminal enterprise. But also, given his demonstrated naivety and lack of sophistication and the pressure he was under, considerable sympathy. On these very unusual facts, it seems to us that it would be arbitrary and unfair for the quantity of drugs located by Customs to be given undue weight in determining Mr Martin’s sentence. Role must loom larger. He is no more culpable than if the search had located a smaller quantity of drugs. Mr Martin’s offending is not materially more culpable than that of the knowing courier of a much smaller quantity of methamphetamine: arguably, less so. The Court of Appeal considered that a starting point of three years’ imprisonment appropriately reflected the culpability of the offending. We turn to personal mitigating factors. The Judge was right to give a substantial discount of approximately 15 per cent for Mr Martin’s previous good character. We agree that a discount in that range is appropriate. We therefore discount the adjusted starting point by six months. We also consider a further discount of six months is needed to reflect the factors discussed in the psychiatrist’s report, in particular Mr Martin’s background, his childhood head injury and his extreme vulnerability and gullibility. These bear directly on what society can reasonably expect of a person in his position. He should not be punished severely for errors of judgment that he had a diminished capacity (or no capacity) to avoid. An aggregate discount of 12 months is appropriate. That gives an end sentence of two years’ imprisonment. The Court of Appeal considered that this end sentence fully reflected the circumstances of Mr Martin’s offending. It is difficult to see how a more severe sentence of imprisonment in this case could serve any of the sentencing objectives set out in s 7 of the Sentencing Act. The goals of denunciation and holding Mr Martin accountable for his foolish and reckless conduct are adequately served by the entry of a conviction, coupled with a less severe sentence. There is no need for a sentence of imprisonment of five years and six months to deter Mr Martin from repeating his unfortunate error. Nor will imprisoning him for a period of that length deter other equally naive and gullible people from engaging in similar conduct — such people are likely to be few and far between, and they will not be aware of or influenced by the specific level of sentence imposed in such cases. Time spent in prison will not help to rehabilitate Mr Martin or reintegrate him into the community — quite the reverse. None of the other goals is engaged.

Orders