Martin v R [2016] NSWCCA 104

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v R [2016] NSWCCA 104 Hearing dates: 3 March 2016 Decision date: 02 June 2016 Before: Bathurst CJ at [1] Hall J at [6] R A Hulme J at [91] Decision: (1) Leave to appeal granted in respect of the sentences imposed by the District Court.

(2) The sentences imposed by the District Court are quashed.

(3) The applicant is re-sentenced as follows:

(a) In respect of Count 1, the applicant is sentenced to a term of imprisonment comprising a non-parole period of 1 year and 10 months to commence on 30 December 2014 and to expire on 29 October 2016, with a balance of term of 1 year and 2 months to expire on 29 December 2017.

(b) In respect of Count 2 the applicant is sentenced to a term of imprisonment comprising a non-parole period of 2 years and 3 months to commence on 30 June 2015 and to expire on 29 September 2017, with a balance of term of 2 years and 3 months to expire on 29 December 2019.

The applicant will become eligible for release on parole when the non-parole period expires on 29 September 2017. Catchwords: CRIMINAL LAW – sentencing appeal – applicant sentenced in respect of offences of aggravated break, enter and commit larceny and assault with intent to rob armed with offensive weapon – early pleas of guilty – sentence imposed in respect of offence of armed robbery was appropriate notwithstanding sentencing judge's misstatement as to the discount on the basis of a late plea incorporated in the Henry criteria – special circumstances found on the basis of applicant's need for drug rehabilitation – failure to appropriately adjust statutory ratio in relation to total effective sentence – where judge found special circumstances other than on basis of accumulation – limited intervention warranted – no error in determining the head sentences in respect of the offences – the sentences were not manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Alpha v R [2015] NSWCCA 225 Arsiotis v R [2015] NSWCCA 275 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Carroll v R [2015] NSWCCA 219 Daniels v R [2016] NSWCCA 35 Hutchen v R [2015] NSWCCA 101 Jodeh v R [2011] NSWCCA 194 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Marrow v R [2015] NSWCCA 282 MD v R [2015] NSWCCA 37 O'Connell v R [2016] NSWCCA 43 R v Boney [2008] NSWCCA 313 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v SY [2003] NSWCCA 291 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Todorovic [2008] NSWCCA 49 Sabongi v R [2015] NSWCCA 25 Speer v Regina [2004] NSWCCA 118 SS v R [2009] NSWCCA 114 Toole v R [2014] NSWCCA 318 Wakeling v R [2016] NSWCCA 33 Category: Principal judgment Parties: James Thomas Martin (Applicant) Regina (Crown) Representation: Counsel: D Carroll (Applicant) NJ Adams (Crown)