Martin v R

Citation: Martin v R [2008] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 2 October 2008
Judges: Giles JA, Rothman J, McCallum J

Background

The applicant pleaded guilty to malicious wounding in company and aggravated robbery arising from two separate attacks in the early hours of 1 July 2006 near Taylor Square and Hyde Park in Sydney. In the first incident, the applicant and a juvenile co-offender (BD) joined a group that assaulted a man, leaving him with serious head injuries including a broken nose, lacerations requiring stitches, and ongoing psychological effects. In the second incident, approximately two hours later, the applicant held a different victim on the ground while BD kicked and punched him around the head; BD then took the victim's wallet and camera.

The applicant was 23 at the time of the offences. His co-offender, BD, was 16. The applicant was sentenced in the District Court to an aggregate of four years imprisonment with a non-parole period of two years, with the non-parole periods for each offence served consecutively. BD received far more lenient outcomes under the Children (Criminal Proceedings) Act 1987, including a suspended control order and a good behaviour bond.

The applicant sought leave to appeal on three principal grounds: that the structure of the sentence (partial accumulation) was wrong in principle, that there was an unjustifiable disparity between his sentence and that of his co-offender, and that the sentencing judge had failed to give adequate weight to his psychological condition.

Legal Issues

• Whether the partial accumulation of the non-parole periods was erroneous in principle or resulted in a manifestly excessive sentence
• Whether the disparity between the applicant's sentence and the much lighter sentence received by his juvenile co-offender gave rise to a justifiable sense of grievance
• Whether the sentencing judge had adequately taken into account the applicant's psychological condition, including its contribution to the offending and its effect on the weight to be given to specific deterrence

Decision

The Court unanimously dismissed the appeal, granting leave but finding no error in any of the three grounds advanced.

On the structure of the sentence, the Court found that neither individual sentence nor the overall sentence was wrong in principle or manifestly excessive. Rothman J emphasised that sentencing is an exercise of discretion requiring a balance of often competing goals, and that sentencing judges must be afforded flexibility in structuring sentences, provided they comply with the statutory regime and established principles.

On disparity, the Court held that the significant age difference between the applicant (23 at the time of offending) and BD (16 at the time) provided a sound basis for the differential outcome. Rothman J acknowledged that parity principles can apply across different sentencing regimes when co-offenders are of similar age, but distinguished that situation from the present case, where the age gap was substantial and the applicable regimes were fundamentally different. The Court found no justifiable sense of grievance arose.

On the psychological condition ground, McCallum J found the sentencing judge had carefully and correctly weighed the evidence, including expert evidence from a psychologist concluding that the applicant had developed significant psychopathology from severe childhood psychological abuse. The judge had accepted the condition contributed to the offending but concluded it was not so significant as to warrant substantial moderation of general deterrence, and the applicant's condition did not rise to the level of severe mental illness. The Court also rejected the argument that the judge had erred in concluding that specific deterrence was not made more difficult to achieve by the applicant's condition; the fact that a lengthy custodial term might retard psychological rehabilitation is not the same as the condition making deterrence harder to achieve.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

• Parity between co-offenders sentenced under different regimes is not automatically defeated by those different regimes; where co-offenders are of similar age, parity principles may still apply. However, where the age gap is significant and the applicable regimes are fundamentally different, a disparity in outcomes can be justified and will not produce a justifiable sense of grievance.

• The Court of Criminal Appeal confirmed that sentencing is a discretionary exercise balancing competing goals, and a sentence will not be disturbed merely because it is structured differently from what the applicant preferred, provided it complies with statute and principle and is not manifestly excessive.

• A psychological condition that contributes to offending does not automatically attract significant moderation of general deterrence. The weight given depends on the severity of the condition and the degree to which it caused or contributed to the offending conduct.

• Adverse effects of imprisonment on an offender's psychological rehabilitation do not, without more, establish that specific deterrence will be more difficult to achieve so as to reduce the weight given to that sentencing consideration.

• Utilitarian discounts for a guilty plea entered on the day set for trial remain applicable, though the level of discount will reflect the lateness of the plea.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Douglas v R [2006] NSWCCA 94
- Johnson v R [2004] HCA 15
- Lowe v R (1984) 154 CLR 606
- McKenna v R [2007] NSWCCA 113
- Mill v R (1998) 166 CLR 59
- Pearce v R [1998] HCA 57
- Postiglione v R [1997] HCA 26
- R v AN [2005] NSWCCA 239
- R v Boney [2001] NSWCCA 342
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Pham [2005] NSWCCA 314
- R v Rushby [1999] NSWCCA 104
- R v Wright (1997) 93 A Crim R 48