R v Martin [2003] NSWCCA 325

New South Wales Court of Criminal Appeal

CITATION : R v Martin [2003] NSWCCA 325 HEARING DATE(S) : 16 October 2003 JUDGMENT DATE : 5 November 2003

JUDGMENT OF : Studdert J at 1; Barr J at 45; Whealy J at 46 DECISION : Leave to appeal granted; appeal dismissed.

LEGISLATION CITED : Crimes Act, ss 112, 114, 117 Crimes (Sentencing Procedure) Act, ss 5, 23 CASES CITED : Re Attorney General's Application No. 1 R v Ponfield & Ors (1999) 48 NSWLR 327 R v Ellis (1986) 6 NSWLR 603 PARTIES : Regina v Danny Paul Martin FILE NUMBER(S) : CCA 60318/03 COUNSEL : E. Wilkins (Crown) G. Wendler (Applicant) SOLICITORS : C.K. Smith (Crown) P. Van Houten (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0264 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60318/03

STUDDERT J BARR J WHEALY J

Wednesday 5 November 203 REGINA v DANNY PAUL MARTIN Judgment 1 STUDDERT J: Having earlier pleaded guilty in the Local Court, the applicant, Danny Paul Martin, pleaded guilty in the District Court at Taree to three counts of break enter and steal, one count of enter land with intent to break enter and steal, and one count of larceny. The applicant was sentenced by his Honour Judge Twigg QC on 6 June 2003. For the most serious of the offences of break enter and steal involving the taking of $151,000, the applicant was sentenced to imprisonment for three years commencing on 6 June 2003 and to expire on 5 June 2006. Having found special circumstances, his Honour set a non parole period of twelve months to expire on 5 June 2004. On the other two charges of break enter and steal, a fixed term of imprisonment of twelve months was imposed with such term to commence on 6 June 2003. For the offence of enter land with intent to break enter and steal, the sentencing judge imposed a fixed term of imprisonment of twelve months, again to commence on 6 June 2003. Finally, in respect of the offence of larceny, a term of six months imprisonment was imposed to date from 6 June 2003. 2 The applicant seeks leave to appeal against the sentences imposed. 3 The most serious of the offences was that attracting the term of three years imprisonment. The victim of this offence was an elderly lady living at Bucketts Way, Taree. The applicant knew the victim's family, being a friend of her grandson. The applicant kept watch at the house whilst his two accomplices broke into the house and stole a safe containing $151,000. The money stolen represented part of the proceeds of the victim's sale of a dairy farm and part of the money was from the repayment of a loan that the victim had made to her daughter and her son-in-law. 4 The applicant was one of three offenders and the proceeds of the crime were divided evenly. The applicant and his co-offenders went to Queensland where part of the proceeds of the crime was spent. Something in excess of $68,000 was recovered by police, leaving nearly $93,000 missing at the time of sentence. 5 The applicant was arrested a week after the commission of this offence and was charged with the various matters for which the sentences presently being considered were imposed. When first interviewed, he denied any knowledge of the offences but two weeks later he participated in a second interview in which he admitted the offences and the additional offence of larceny. 6 The applicant also admitted to an offence of breaking entering and stealing from Cullen Holden at Taree. On 4 February 2002 he and his accomplices broke into Cullen Holden and stole Holden clothing and a Tech 2 car computer. The judge found that the applicant had made full restitution to Cullen Holden for what was taken. 7 The third of the break enter and steal offences was committed at the Caltex Service Station at Taree. On 23 or 24 February 2002 the applicant and the co-offender Schlenert broke into the Caltex service station and stole forty-five cartons of cigarettes. These cigarettes were subsequently sold for between $25 and $40 a carton. The applicant offered to reimburse the victim of this crime but, an insurance claim having been met, the victim, who was a friend of the applicant's parents, declined the payment offered by the applicant. 8 The offence of entering land with intent to break enter and steal was committed before the most serious of the break enter and steal offences. The applicant and his accomplice Schlenert entered on to the property from whom a substantial sum of money was stolen one week later. There were two residences on that property and the applicant and Schlenert were observed and recognised by an occupant of one of the residences. 9 Then, between 22 February 2002 and 1 March 2002, the applicant and his co-offenders stole an outboard motor valued at $500, having cut it from the back of a boat at Manning Point. 10 The maximum penalty for break enter and steal imposed by s 112(1) of the Crimes Act is fourteen years imprisonment. The maximum penalty imposed by s 114(1)(d) for entering on land with intent to commit an indictable offence is seven years imprisonment. The maximum penalty for larceny imposed by s 117 of the Crimes Act is five years imprisonment. 11 The sentencing judge was correct to remark that the range of penalties provided recognised that these categories of offences were serious indictable offences. 12 The applicant was a young man nineteen years of age at the time these offences were committed. There were two co-offenders, one was an older man by the name of Maher, and the other was a young man named Schlenert, who was about the same age as the applicant. The applicant had no prior criminal history and he had the support of his parents, although for some time prior to the commission of the offences he had been living away from home and had been unemployed. By the time he came to be sentenced, and for many months before, the applicant was in gainful employment again. 13 There were a number of people through whom evidence of the applicant's good character was offered. In addition, the judge had the benefit of a psychiatric report from Dr Westmore, as well as a report from a psychologist, Mr Spencer. His Honour plainly considered those reports, as is reflected in his sentencing remarks, and he recorded that Dr Westmore was of the opinion that the applicant was suffering from a depressive illness and that Dr Westmore thought there might be dysthymic disorder, a differential diagnosis including episodes of adjustment disorder with depression. Dr Westmore considered the applicant would require psychiatric support and assistance, but regarded the applicant as a young man with considerable potential and ability to achieve. This the sentencing judge also recorded. 14 The applicant has advanced a number of grounds of appeal which I will address in the order in which they were raised in the applicant's written submissions.