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Court of Criminal Appeal 5 February 2015

Martinez v R

[2015] NSWCCA 5

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHETHER PRE POWER OF APPELLATE COURT TO RE SENTENCE WHERE ERROR ESTABLISHED

Citation: Martinez v R [2015] NSWCCA 5
Court: Court of Criminal Appeal, NSW
Date: 5 February 2015
Judges: Gleeson JA; R A Hulme J; Campbell J

Background

The applicant was convicted of break, enter and commit a serious indictable offence, specifically organising an arson attack on a jewellery business in Paddington. He played an organising role: recruiting others, purchasing equipment, driving the offenders to the premises, and paying them for the job. The fire caused over $150,000 in property damage and had the potential to spread to surrounding residential buildings. A Form 1 offence of dishonestly obtaining property by deception (relating to a false car finance application used to acquire a vehicle for the arson) was also taken into account at sentencing.

The District Court sentenced the applicant to 3 years 10 months imprisonment with a non-parole period of 2 years, commencing 6 March 2013. The applicant sought leave to appeal on two grounds: that the sentencing judge failed to properly credit all pre-sentence custody for the arson offence when backdating the sentence, and that the judge erroneously treated him as having committed the Form 1 offence while on a bond, when he was in fact on bail.

  • Whether the sentencing judge properly credited all time spent in pre-sentence custody referable to the arson offence, including periods where bail was also refused for separate offences
  • Whether the sentencing judge erred by treating the Form 1 offence as having been committed in breach of conditional liberty (specifically, a bond), when the applicant was on bail rather than a bond at the relevant time
  • Whether, once error was established on the second ground, a lesser sentence was warranted

Decision

Ground 1: Pre-sentence custody credit

The applicant spent a complex period in pre-sentence custody that overlapped with bail refusals for separate Commonwealth and State offences committed while on bail for the arson charge. Those separate offences arose from the applicant travelling to China using his brother's passport and withdrawing $46,000 from his brother's bank account. The Court held that where an offender is refused bail for multiple matters simultaneously, only the custody solely referable to the arson offence could properly be credited against that sentence. The periods of overlapping custody could not be double-counted. The judge's approach to backdating was not shown to be in error, and this ground failed.

Ground 2: Offending in breach of conditional liberty

The Crown conceded the sentencing judge's error. The judge had treated the Form 1 offence as aggravated by being committed in breach of a bond, but the applicant was on bail, not a bond, at the relevant time. This was a factual error affecting the sentencing exercise, and leave to appeal was granted.

Re-sentencing following established error

Once error is established, the Court of Criminal Appeal is required to re-sentence unless it determines, in the exercise of its discretion, that no different sentence (whether more or less severe) is warranted. Applying the approach confirmed in Kentwell v The Queen [2014] HCA 37, the Court conducted a full review of the sentencing considerations. It concluded that the objective seriousness of the offence, the applicant's senior organising role, the planning and premeditation involved, and the need to account for the Form 1 offence, all supported the original sentence. No lesser sentence was warranted, and the appeal was dismissed despite the error being established.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 24(a) and s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), pre-sentence custody must be taken into account when backdating a sentence, but only the period of custody referable to the specific offence being sentenced can be credited; overlapping periods of bail refusal for separate matters do not attract double credit.
  • A sentencing judge's factual error in treating an offence as committed in breach of a bond, when the offender was on bail rather than a bond, constitutes a sentencing error sufficient to warrant leave to appeal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed the principle from Kentwell v The Queen [2014] HCA 37: once a sentencing error is established, the appellate court must re-sentence, but retains the discretion to decline to impose any different sentence if none lesser or greater is warranted on the facts.
  • Backdating a sentence to credit pre-sentence custody remains the usual and preferable course, consistent with Wiggins v R [2010] NSWCCA 30, but the extent of backdating turns on which periods of custody are properly attributable to the offence in question.
  • No error was established in the overall length of the sentence, given the applicant's senior organising role, the serious planning involved, the substantial property damage, and the risk of harm to residents in the surrounding area.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a) (break, enter and commit serious indictable offence), s 192E(1)(a) (dishonestly obtaining property by deception)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47(3), Pt 3 Div 3 (Form 1 procedure)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1914 (Cth)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- 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