The Queen v Martin - [2009] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND
CA560/2008
[2009] NZCA 8
THE QUEEN
v
DWAYNE RUDY MARTIN
Hearing:9 February 2009

Court:O'Regan, Hugh Williams and Miller JJ
Counsel:M B Ryan for Appellant

A Markham for Crown

Judgment:13 February 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]       The appellant, Dwayne Martin, along with his younger twin brothers, Windsor and Cleveland Martin, and one or two other associates, were involved in a serious violent assault. Charges were laid against the three brothers. The appellant subsequently pleaded guilty in the District Court to causing grievous bodily harm and was sentenced to seven years and eight months’ imprisonment. He now appeals against that sentence.
[2]       The sole ground of appeal is an alleged disparity between the sentence imposed on the appellant and the sentences imposed on his brothers, particularly Windsor Martin.
Background
[3]       On the evening of 2 June 2006, the victim and two associates assaulted Windsor Martin at an address in Palmerston North. Windsor Martin fled on foot to his home, where he told the appellant and other associates about the incident. The appellant, Windsor Martin and another family member then drove back to the address at which the assault occurred.
[4]       When they arrived at this address, they encountered the victim and his associates leaving in another vehicle. As the cars passed, there was an exchange of projectiles. The appellant then drove to another address at which he picked up Cleveland Martin; later, two other male associates joined the group.
[5]       The group, wanting revenge, went in search of the victim’s car. They located it and forced it to stop. Both groups of people, armed with weapons, got out of their cars. A confrontation ensued, during which the victim became isolated from his associates.
[6]       At this point, the victim became the focus of the appellant and his associates. The group commenced a violent and prolonged attack. Various weapons, including claw hammers, were used. The victim attempted to escape but was caught and overwhelmed by kicks and punches. He fell to the ground and the violent assault continued: his head was stomped on and further kicks were administered. When the attack finished, the victim was left unconscious and lying in a pool of his own blood.
[7]       The effects of this assault on the victim and his family have been very significant. He was hospitalised for a number of weeks, suffering a severe traumatic brain injury and a depressed fracture of the skull. Fifteen months later, the victim is still unable to work and is cared for by his sister. He has experienced a decline in cognitive functioning and requires supervision in order to complete ordinary tasks of daily living.
The sentencing
[8]       The appellant and his younger twin brothers were charged with causing grievous bodily harm with intent to cause grievous bodily harm. At the final pre-trial callover, eight days before the trial, the three…

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 The Queen v Martin

Details

AGLC: The Queen v Martin [2009] NZCA 8
Case: [2009] NZCA 8
Decision Date: 13 February 2009

CaseChat Overview and Summary

The case involved Dwayne Rudy Martin, who, along with his brothers Windsor and Cleveland Martin, participated in a violent assault. Martin pleaded guilty to causing grievous bodily harm and was sentenced to seven years and eight months’ imprisonment. He appealed against this sentence, claiming it was disproportionately higher than the sentences given to his brothers. The Crown Law Office represented the Crown in this appeal. The Court of Appeal dismissed Martin’s appeal against his sentence.

The court had to determine whether the disparity in the sentence between Martin and his brothers was justifiable. Martin’s counsel argued that the difference in sentences was unjust given the close relationship between the offenders and the fact that they were sentenced by the same judge. He argued that the age difference between Martin and his brothers was not significant enough to justify the disparity in their sentences.

The Court of Appeal found that the sentence disparity was justifiable. While the court acknowledged that the discount for youth given to Windsor Martin was excessive, it found that Martin’s age was a valid factor in his sentencing. The court considered Martin’s absconding while on bail and his late guilty plea as additional aggravating factors that justified his harsher sentence. The court concluded that Martin’s sentence was not disproportionate to his brothers’ sentences, given the circumstances.

The Court of Appeal dismissed Martin’s appeal against his sentence. The court found that the sentence disparity was justifiable, considering the factors that differentiated Martin from his brothers. The court emphasized that the fact that one offender received a more lenient sentence does not necessarily mean that another offender’s sentence is too harsh.

Orders