Citation: Martin v R; Martin v R [2021] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 20 December 2021
Judge(s): Leeming JA; Hamill J; Lonergan J
Background
A father and son, Peter Martin (aged 63) and Jim Martin (aged 36), each pleaded guilty to manufacturing a large commercial quantity of methylamphetamine, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Police discovered approximately 44.7 kilograms of methylamphetamine in two sophisticated clandestine laboratories in remote bushland near the Blue Mountains National Park. The agreed facts placed both men at the heart of the operation, involving the coordinated purchase and delivery of precursor chemicals over an extended period.
The District Court conducted sentencing proceedings over approximately eight days between April 2016 and May 2017. The primary judge found both men to be "principals" in the operation, applied a starting point of 35 years imprisonment for each, then applied discounts of 20% (for Jim) and 15% (for Peter) to arrive at sentences of 28 years and 29 years and 9 months respectively, each with a non-parole period set at the standard 3:1 ratio.
Both men sought leave to appeal, arguing errors in the assessment of their roles, the discount applied for their guilty pleas, the refusal to find special circumstances, and that the sentences were manifestly excessive.
Legal Issues
- Whether the primary judge erred in characterising both applicants as "principals" in the drug manufacturing operation
- Whether the primary judge erred in calculating the guilty plea discount, by failing to account for offers to plead guilty made when the matters were in the Local Court
- Whether the primary judge erred in declining to find special circumstances warranting a variation from the standard non-parole period ratio
- Whether the sentences imposed were manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal on grounds 2 and 3 only (guilty plea discount and manifest excess), dismissing the remaining grounds. On the "principal" characterisation, the Court found no error: the agreed facts and findings of the sentencing judge supported the conclusion that both men occupied central roles in a sophisticated, large-scale operation.
On the guilty plea discount, the Court found error. The primary judge did not adequately account for the applicants' earlier offers to plead guilty when the matters were in the Local Court. This failure produced an insufficient discount and constituted a sentencing error that justified intervention.
The Court found the sentences were also manifestly excessive in their starting points. Rather than 35 years, the Court assessed the appropriate undiscounted sentence at 28 years imprisonment for each man. The Court reached this figure while accepting that the offending was a grave example of the offence, noting the very large quantity involved, the sophistication of the operation, and the precursor offences taken into account on Form 1.
On special circumstances, the Court declined to depart from the standard ratio, finding no basis to do so on the evidence before it. Applying the same discounts as the primary judge (20% for Jim, 15% for Peter) to the revised starting point, the Court resentenced both men to materially shorter terms.
Orders Made
Peter Martin (proceeding 2013/11122):
- Leave to appeal granted, confined to grounds 2 and 3
- Appeal allowed
- District Court sentence set aside and replaced with 23 years and 9 months imprisonment, commencing 13 January 2013, with a non-parole period expiring 13 October 2030 and balance of term expiring 13 October 2036
Jim Martin (proceeding 2013/11126):
- Leave to appeal granted, confined to grounds 2 and 3
- Appeal allowed
- District Court sentence set aside and replaced with 22 years and 4 months imprisonment, commencing 13 January 2015, with a non-parole period expiring 13 October 2031 and balance of term expiring 13 May 2037
Key Takeaways
- The Court of Criminal Appeal confirmed that early offers to plead guilty, including when a matter is still in the Local Court, must be adequately reflected in the discount for guilty plea. Failure to account for such offers constitutes a sentencing error.
- A starting point of 35 years for manufacturing approximately 44 kilograms of methylamphetamine was found to be manifestly excessive, with 28 years assessed as the appropriate undiscounted term, even accepting the offending was a grave example of the offence.
- No error was established in characterising both men as principals where agreed facts demonstrated sustained, central involvement in coordinating the supply of precursors and operation of clandestine laboratories over an extended period.
- Lengthy contested sentencing proceedings resolved adversely to the applicants did not, of themselves, produce error in the primary judge's role assessment or justify a finding of special circumstances.
- Under the Drug Misuse and Trafficking Act 1985 (NSW), manufacturing a large commercial quantity of a prohibited drug (threshold: 1 kilogram for methylamphetamine) carries a maximum of life imprisonment with a standard non-parole period of 15 years.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 24A, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 33, 54A
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes Act 1900 (NSW), s 203E
Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383 (guilty plea discounts)
- Lowndes v The Queen (1999) 195 CLR 665 (standard non-parole periods)
- House v The King (1936) 55 CLR 499 (appellate interference with sentencing discretion)
- Dinsdale v R (2000) 202 CLR 321
- Olbrich v R (1999) 199 CLR 281
- Bell v R [2019] NSWCCA 271
- Magro v R [2020] NSWCCA 25
- Nealon v R [2021] NSWCCA 286
- Hall v The Queen [2021] NSWCCA 220
- Kwok v R [2018] NSWCCA 200
- Regina v Oinonen [1999] NSWCCA 310
- R v Kalache [2000] NSWCCA 2
- R v Little and Walsh [2006] NSWCCA 406
- Nguyen v R [2011] NSWCCA 92
- Nanai v R [2010] NSWCCA 21
- Owens v R [2017] NSWCCA 16
- R v Wan [2017] NSWCCA 261