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Court of Criminal Appeal 5 November 2003

R v Martin

[2003] NSWCCA 325

Theft & property

Citation: R v Martin [2003] NSWCCA 325
Court: NSW Court of Criminal Appeal
Date: 5 November 2003
Judge(s): Studdert J (principal judgment); Barr J and Whealy J (agreeing)

Background

The applicant, a 19-year-old with no prior criminal history, pleaded guilty in the District Court at Taree to three counts of break, enter and steal, one count of entering land with intent to break, enter and steal, and one count of larceny. The most serious offence involved keeping watch while two accomplices broke into the home of an 82-year-old woman and stole a safe containing $151,000. The money came from proceeds of the victim's dairy farm sale and the repayment of a personal loan she had made to family members.

The applicant was one of three offenders, including an older man named Maher who was treated as the primary instigator. The offenders travelled to Queensland and spent part of the proceeds. At the time of sentencing, approximately $93,000 remained unrecovered. The applicant had initially denied the offences but admitted them in a second police interview two weeks after arrest, and by the time of sentencing had returned to employment.

District Court Judge Twigg QC sentenced the applicant to three years imprisonment with a non-parole period of 12 months for the most serious offence, with concurrent fixed terms of 12 months for the remaining break, enter and steal offences and the entry with intent offence, and six months for larceny. The applicant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had made various errors.

  • Whether the sentences imposed were manifestly excessive, given the applicant's youth, prior good record, early guilty pleas, remorse, and partial restitution
  • Whether the sentences were disproportionate compared to those imposed on co-offender Maher, giving rise to a justifiable sense of grievance (the parity principle)
  • Whether the sentencing judge failed to give sufficient weight to the applicant's diminished role and the influence exerted over him by the older co-offender
  • Whether special circumstances justified a longer than usual ratio of parole to non-parole period
  • Whether the sentencing judge gave adequate weight to the applicant's mental health, including diagnosed depressive illness
  • Whether the judge gave insufficient weight to the applicant's efforts to compensate the victims

Decision

The Court of Criminal Appeal unanimously dismissed all seven grounds of appeal, granting leave but declining to interfere with the sentences.

On the question of manifest excess, the Court found that Judge Twigg had correctly identified the most serious offence and applied the guideline judgment in Re Attorney General's Application No. 1 R v Ponfield & Ors (1999) 48 NSWLR 327. The burglary involved planning and reconnaissance, a large sum of money, evidence of vandalism, and the deliberate targeting of an elderly and vulnerable victim. A 25 percent discount for the early guilty plea was appropriate. The subjective factors, including youth, good character, remorse, and restitution, were weighed carefully but could not overcome the objective gravity of the offending.

On parity, the Court noted that co-offender Maher received a head sentence of six years, double that of the applicant. Given that significant difference, the Court found the applicant could not maintain a justifiable sense of grievance. The remaining grounds, covering role, special circumstances, mental health, and restitution, were each rejected. The sentencing judge had addressed the psychiatric evidence from Dr Westmore, recommended ongoing psychological treatment, and imposed parole conditions requiring psychiatric assessment. The Court found no error in any aspect of the sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that objective gravity can outweigh powerful subjective mitigating factors, even where an offender is young, has no prior record, pleaded guilty early, and demonstrated remorse.
  • A head sentence of twice the applicant's was sufficient to address the parity principle where the co-offender was the older, dominant participant; the disparity reflected, rather than ignored, the difference in criminality.
  • Under the guideline judgment in Ponfield, prior reconnaissance, planning, a large amount stolen, and the targeting of an elderly victim are all factors that elevate the seriousness of a break, enter and steal offence.
  • No error was established in the sentencing judge's treatment of psychiatric evidence where the judge had expressly addressed the mental health reports, recommended ongoing treatment, and attached parole conditions requiring psychiatric and psychological assessment.
  • Efforts at restitution, though relevant, carried limited weight where the primary victim remained out of pocket by over $92,000 at the time of sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112, 114, 117 (break, enter and steal; entering land with intent; larceny)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 23

Cases
- Re Attorney General's Application No. 1; R v Ponfield & Ors (1999) 48 NSWLR 327 (guideline judgment for break, enter and steal)
- R v Ellis (1986) 6 NSWLR 603