Martinez v R [2015] NSWCCA 5

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martinez v R [2015] NSWCCA 5 Hearing dates: 5 February 2015 Date of orders: 05 February 2015 Decision date: 05 February 2015 Before: Gleeson JA at [1]; R A Hulme J at [2]; Campbell J at [44] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – whether pre-sentence custody served properly taken into account – where applicant bail refused in respect of other offences – extent to which sentence should be backdated – error by judge in taking into account offence committed in breach of conditional liberty - power of appellate court to re-sentence where error established – no lesser sentence warranted Legislation Cited: Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Kentwell v The Queen [2014] HCA 37 R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361 Wiggins v R [2010] NSWCCA 30 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Shawn Luis Martinez (Applicant) Regina (Respondent) Representation: Counsel: Ms N Carroll (Applicant) Mr N J Adams (Crown)

Solicitors: Jones Rolfe Rudd Solicitor for Public Prosecutions File Number(s): 2011/137576 Decision under appeal Court or tribunal: District Court Date of Decision: 06 March 2014 Before: Blackmore SC DCJ File Number(s): 2011/137576