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Court of Criminal Appeal 30 November 2016

Martin v R

[2016] NSWCCA 273

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE ARMED ROBBERY WITH WOUNDING CRIMES ACT 1900 S 98 APPEAL DISMISSED

Citation: Martin v R [2016] NSWCCA 273
Court: Court of Criminal Appeal
Date: 30 November 2016
Judges: Hoeben CJ at CL; Adams J; R A Hulme J

Background

The appellant was a 19-year-old man who, in August 2014, accompanied a 62-year-old widower to the victim's home after the two met by chance. Over several hours both men consumed alcohol. The appellant then attacked the victim repeatedly in his bedroom, threatened him with a weapon, and stole his wallet and car keys. The victim suffered bilateral nasal bone fractures, a compressed rib fracture, multiple lacerations, and significant bruising, and was hospitalised for four days.

The appellant pleaded guilty in the District Court at Gosford to robbery whilst armed with an offensive weapon with wounding, contrary to s 98 of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. He was sentenced to six years imprisonment with a non-parole period of four years.

The appellant sought leave to appeal against that sentence on three grounds, challenging the judge's assessment of objective seriousness, the way special circumstances were given effect in the sentence structure, and the judge's characterisation of the victim as a "vulnerable person."

  • Whether the sentencing judge failed to properly identify and assess the factors relevant to the objective seriousness of the offence
  • Whether the judge failed to give adequate effect to a finding of special circumstances when partially accumulating the non-parole period on an existing parole balance
  • Whether the judge erred in treating the victim as a "vulnerable person," and whether doing so without prior notice to the parties constituted a denial of procedural fairness

Decision

On objective seriousness, the Court of Criminal Appeal found no error in the sentencing judge's approach. The judge had recognised the offence fell outside the worst-case category while still treating it as substantially above the mid-range, noting the gratuitous and sustained violence, the threat to kill, and the commission of the offence in the victim's own home. This assessment was open on the facts.

On special circumstances, the Court accepted the sentencing judge's remarks were not entirely clear. However, Adams J interpreted the judge's language as conveying that some extension of the parole period beyond the statutory default was necessary, and that when combined with the statutory calculus this would produce a substantially longer parole period overall. The relatively modest extension actually applied was consistent with that reasoning and did not demonstrate any inconsistency between the stated rationale and the result.

On vulnerability, the Court rejected both limbs of the appellant's argument. The judge made no reference to s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, which concerns a specific class of victim particularly susceptible to criminal offending. Instead, the judge was describing the actual circumstances of this particular victim under the general sentencing discretion in s 21A(1)(c), which permits regard to any objective or subjective factor affecting the relative seriousness of the offence. Those circumstances, including the victim's age, his inability to defend himself, and his being assaulted while unconscious in his own home, were plainly evident on the agreed facts.

The procedural fairness objection also failed. Because the vulnerability finding rested entirely on matters apparent from the evidence before the court and the subject of submissions, there was no unfairness in the judge taking it into account.

Orders Made

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

Key Takeaways

  • A sentencing judge's reference to a victim as "vulnerable" does not necessarily invoke s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999. Where the description reflects the actual circumstances of the offence rather than a statutory aggravating factor, it may properly be taken into account under the general discretion in s 21A(1)(c).

  • No procedural fairness issue arises from a judge's characterisation of vulnerability where the underlying circumstances were plainly established by the evidence and addressed in submissions, even if the Crown did not expressly raise the point.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that ambiguous sentencing remarks on special circumstances are not necessarily erroneous. The relevant question is whether the sentence actually imposed is consistent with a fair reading of the judge's stated reasons.

  • Sufficient evidence existed to support a finding that the offence fell substantially above the mid-range of objective seriousness, given the sustained violence, the threat to return and kill the victim, and the commission of the offence inside the victim's home.

  • A prior criminal history that includes a materially similar offence committed while on parole, combined with diagnoses of antisocial personality disorder and multiple substance use disorders, are factors that bear significantly on the sentencing assessment of an offender's prospects of rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 98 (armed robbery with wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(1)(c), 21A(2)(l), 44(2)
- Criminal Procedure Act 1986 (NSW) s 166

Cases:
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Caristo v R [2011] NSWCCA 7
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Huynh [2003] NSWCCA 239
- R v Moffitt (1990) 20 NSWLR 114
- R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740