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Court of Criminal Appeal 17 February 2003

R v Martin

[2003] NSWCCA 25

Assault & violenceTheft & property

Citation: R v Martin [2003] NSWCCA 25
Court: New South Wales Court of Criminal Appeal
Date: 17 February 2003
Judge(s): James J; Greg James J

Background

The appellant (referred to in proceedings as both Frank Smith and Frank Martin) pleaded guilty to robbery in company in the District Court following an offence committed on 12 February 2001. The offence involved the appellant and a co-offender approaching a 45-year-old woman on a footpath, grabbing her handbag by force, and pushing her to the ground. Police officers who witnessed the incident gave chase and apprehended the appellant almost immediately; the co-offender escaped but was later tried and convicted separately.

Judge Coleman of the District Court sentenced the appellant to 3 years 4 months imprisonment with a non-parole period of 1 year 10 months, commencing 26 November 2001. The co-offender Ryan, who did not plead guilty and was convicted at trial, received a sentence of 4 years with a non-parole period of 2 years 8 months from a different District Court judge.

The appellant sought leave to appeal against his sentence in the Court of Criminal Appeal, raising concerns about parity with the co-offender's sentence and the failure to account for a period of pre-sentence custody.

  • Whether the sentencing judge correctly applied the parity principle when comparing the appellant's sentence to that imposed on the co-offender Ryan
  • Whether a period of pre-sentence custody served by the appellant had been properly taken into account
  • Whether fresh evidence of a paranoid schizophrenia diagnosis, obtained after sentencing, warranted a different sentencing outcome on re-sentence

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. A central issue was that the sentencing judge did not account for a period of pre-sentence custody served by the appellant before the commencement date of the sentence as imposed. The Court found this constituted an error warranting intervention.

The Court accepted fresh evidence from forensic psychologist Dr Lennings, who had conducted a further assessment of the appellant in November 2002 and formed the view that the appellant was suffering from paranoid schizophrenia. This diagnosis, which was not available to the sentencing judge, was a relevant subjective circumstance that the Court could take into account on re-sentence.

The sentencing judge had found the two offenders' criminality to be broadly equivalent, subject to the appellant's guilty plea, and applied an approximate 15 per cent discount for that plea. The Court's re-sentencing reflected the objective seriousness of the offence while giving weight to the appellant's difficult background, mild intellectual disability, polysubstance abuse history, the conditions of his imprisonment (including that he was held on protection), the guilty plea, and the updated psychiatric evidence.

As the non-parole period under the re-sentence had already expired by the time the appeal was decided, the Court also recommended that the Parole Board give expedited consideration to the question of the appellant's release on parole.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence imposed by Judge Coleman on 11 April 2002 quashed
  • Fresh sentence imposed: total term of 3 years 1 month, backdated to commence 5 April 2001
  • Non-parole period of 1 year 9 months (21 months) commencing 5 April 2001, expiring 4 January 2003
  • Court recommended and requested that the Parole Board give expedited consideration to the question of the appellant's release on parole

Key Takeaways

  • A sentencing error arising from failure to account for pre-sentence custody provided sufficient ground for the Court of Criminal Appeal to intervene and re-sentence the offender.
  • Fresh psychiatric evidence, not available at the time of the original sentencing, can be admitted and considered by an appellate court when it proceeds to re-sentence.
  • Where two co-offenders are sentenced by different judges, the parity principle requires that any material difference in sentence be explicable by reference to differences in their respective criminality or circumstances; a guilty plea is a recognised basis for appropriate disparity.
  • A discount of approximately 15 per cent for a guilty plea entered on the day of trial (rather than at the earliest opportunity) reflects the limited, though still real, utilitarian value of a late plea in facilitating the administration of justice.
  • Mild intellectual disability does not automatically reduce the weight given to general deterrence in sentencing; the sentencing court must assess the degree of the disability and its relationship to the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company; maximum penalty 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (general sentencing provisions)

Cases:
- No specific cases are identified by name in the portions of the judgment provided, though the sentencing judge referred to Court of Criminal Appeal decisions on sentencing of persons with intellectual disability. Specific citations were not reproduced in the available text.