R v Martin [2003] NSWCCA 25

R v Martin [2003] NSWCCA 25

The original sentencing judge failed to take into account 7 months and 21 days of pre-sentence custody, which constituted an error requiring re-sentencing. Taking into account the objective facts, the applicant's intellectual disability, psychiatric evidence, role in the offence, and parity with the co-offender, the court determined a lesser sentence with an appropriately backdated commencement, resulting in a total sentence of 3 years 1 month, and a non-parole period of 1 year 9 months.

Parties
Prosecutor: Regina; Applicant: Frank Smith aka Frank Martin
Jurisdiction
Australia
Judgment Date
17 February 2003
Procedural Posture
Criminal / Application for Leave to Appeal Against Sentence and Re Sentencing
Outcome
Leave to appeal granted; appeal allowed; original sentence quashed; applicant re-sentenced to term of 3 years 1 month with non-parole period of 1 year 9 months, sentence backdated to 5 April 2001; recommendation to Parole Board for expedited consideration of parole.
Legal Topics
Sentencing, Appeal Against Sentence, Parity With Co Offender, Pre Sentence Custody, Intellectual Disability, Psychiatric Illness, Robbery in Company
Criminal Law Sentencing Appeal Against Sentence Parity With Co Offender Pre Sentence Custody Intellectual Disability Psychiatric Illness Robbery in Company

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Parties

Regina

Prosecutor

Frank Smith aka Frank Martin

Applicant

Procedural Posture

Criminal / Application for Leave to Appeal Against Sentence and Re Sentencing

Legal Issues

  1. 1 Whether the sentencing judge erred in failing to take into account the period of pre-sentence custody prior to 26 November 2001
  2. 2 Whether there was appropriate disparity between the sentence imposed on the applicant and the co-offender
  3. 3 Relevance of intellectual disability and psychiatric illness to sentencing

Ratio Decidendi

The original sentencing judge failed to take into account 7 months and 21 days of pre-sentence custody, which constituted an error requiring re-sentencing. Taking into account the objective facts, the applicant's intellectual disability, psychiatric evidence, role in the offence, and parity with the co-offender, the court determined a lesser sentence with an appropriately backdated commencement, resulting in a total sentence of 3 years 1 month, and a non-parole period of 1 year 9 months.

Court Disposition

Leave to appeal granted; appeal allowed; original sentence quashed; applicant re-sentenced to term of 3 years 1 month with non-parole period of 1 year 9 months, sentence backdated to 5 April 2001; recommendation to Parole Board for expedited consideration of parole.

Orders

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