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Martin v R

Martin v R

Case [2020] NZCA 318 30 July 2020

Sentencing

Appeal

Causation

Aggravated & Exemplary Damages

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA553/2019
[2020] NZCA 318

BETWEEN	LEX ROSS MARTIN Appellant
AND	THE QUEEN Respondent

Hearing:	19 May 2020
Court:	Cooper, Duffy and Edwards JJ
Counsel:	J J Corby for Appellant Z R Johnston for Respondent
Judgment:	30 July 2020 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of 10 years and four months’ imprisonment is quashed and replaced with a sentence of seven years and 10 months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

On 17 October 2019, Mr Martin was sentenced in the District Court at Auckland to 10 years and four months’ imprisonment for methamphetamine-related charges.[1]
[1]R v Martin [2019] NZDC 20863.
The charges arose out of two sets of offending:
(a)The first set comprised two charges of manufacturing methamphetamine,[2] one charge of possession of precursor materials,[3] one charge of possession of equipment for manufacture of methamphetamine,[4] and one charge of unlawful possession of a pistol.[5]
(b)The second set was for offending committed while on bail for the first set and comprised charges of possession of a pipe,[6] possession of precursor materials,[7] possession of an offensive weapon,[8] giving false information and failing to remain stopped for an enforcement officer.[9]
[2]Misuse of Drugs Act 1975, s 6(1)(b) and 2(a).
[3]Section 12A(2)(a) and (3)(b).
[4]Section 12A(2)(a) and (3)(b).
[5]Arms Act 1983, s 50(1)(a).
[6]Misuse of Drugs Act, s 13(1)(a) and (3).
[7]Section 12A(2)(b) and (3)(b).
[8]Crimes Act 1961, s 202A(4)(a).
[9]Land Transport Act 1998, ss 44 and 52A(1)(a).
The sentencing Judge adopted a starting point of 13 years and six months’ imprisonment for the two lead offences of manufacturing methamphetamine. He did so by reference to band 4 of R v Fatu.[10] The Judge then applied an uplift of 12 months for the balance of the first set of charges and deducted nine months for remorse and 41 months for the guilty pleas. He convicted and discharged Mr Martin on the charges of failing to remain stopped and giving false information and imposed concurrent sentences of six months’ imprisonment for all other charges.
[10]R v Fatu [2006] 2 NZLR 72 (CA).
Mr Martin now appeals on the following grounds:
(a)applying the guidelines in Zhang v R, the starting point of 13 years and six months’ imprisonment was too high;[11] and
(b)further discounts were available for mental health, addiction, duress, rehabilitative prospects and time spent on electronically monitored bail (EM bail).

The offending

[11]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

The first set of charges arose out of a police investigation into the manufacture and supply of methamphetamine in Northland. The operation was terminated on 30 August 2018 with the simultaneous execution of search warrants at two addresses associated with Mr Martin.
At the first address, police located a laboratory with equipment and the three main precursor materials for the manufacture of methamphetamine. Evidence of methamphetamine usage…

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 [2020] NZCA 318
Case: [2020] NZCA 318
Decision Date: 30 July 2020 at 10 am

CaseChat Overview and Summary

Lex Ross Martin appeals against the sentence of 10 years and four months’ imprisonment imposed by the District Court at Auckland for methamphetamine-related charges. The appeal raises two grounds: first, that the starting point of 13 years and six months’ imprisonment was too high; and second, that further discounts were available for mental health, addiction, duress, rehabilitative prospects and time spent on electronically monitored bail. The New Zealand Court of Appeal allowed the appeal and reduced the sentence to seven years and 10 months’ imprisonment.

The appeal turns on the application of guideline judgments in sentencing. The Court held that the appeal should be determined by reference to the judgment in Zhang v R, rather than the prior judgment in R v Fatu, because the appeal was filed the day after the judgment in Zhang was delivered and because applying Zhang results in a significantly lower sentence. The Court also held that the starting point of 12 years’ imprisonment was appropriate, given the commercial and sophisticated nature of the offending over a five-month period, the fact that the second set of charges arose out of offending while Mr Martin was on bail, and the presence of loaded guns. The Court held that a further discount of 10 per cent was available for Mr Martin’s addiction and rehabilitative prospects, in addition to the discounts for remorse and the guilty plea. This resulted in a final sentence of seven years and 10 months’ imprisonment.

Orders