Martin v R [2013] NSWCCA 253

Martin v R [2013] NSWCCA 253

Although Muldrock error was accepted, the applicant did not show that a lesser sentence was warranted in law. The delay of nearly 5 years was substantial, the explanation was not compelling, finality and the potential impact on the victim counted against an extension, the applicant's subjective case was not strong, the objective criminality was significant, and the statistical and comparative material did not demonstrate excess. The proposed sentence appeal therefore lacked sufficient prospects of success to justify the extension of time.

Jurisdiction
Australia
Judgment Date
08 November 2013
Procedural Posture
Application for Extension of Time Within Which to Apply for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal Extension of Time Application
Outcome
Application for extension of time by the applicant dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'standard Non Parole Period' 'muldrock Error' 'extension of Time' 'finality' 'severity Appeal' 'criminal Appeal Act 1912 (nsw) S6(3)']
['criminal Law' 'sentencing' 'appellate Procedure'] ['sexual Intercourse Without Consent' 'standard Non Parole Period' 'muldrock Error' 'extension of Time' 'finality' 'severity Appeal' 'criminal Appeal Act 1912 (nsw) S6(3)']

Case Brief

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Procedural Posture

Application for Extension of Time Within Which to Apply for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal Extension of Time Application

Legal Issues

  1. 1 ['Whether an extension of time of nearly 5 years should be granted for the applicant to apply for leave to appeal against sentence.' 'Whether, despite accepted Muldrock error in the sentencing process, a lesser sentence was warranted in law under s6(3) of the Criminal Appeal Act 1912 (NSW).' 'Whether the sentence imposed for sexual intercourse without consent was excessive having regard to the objective criminality, subjective circumstances, post-sentence conduct and sentencing statistics.']

Ratio Decidendi

Although Muldrock error was accepted, the applicant did not show that a lesser sentence was warranted in law. The delay of nearly 5 years was substantial, the explanation was not compelling, finality and the potential impact on the victim counted against an extension, the applicant's subjective case was not strong, the objective criminality was significant, and the statistical and comparative material did not demonstrate excess. The proposed sentence appeal therefore lacked sufficient prospects of success to justify the extension of time.

Court Disposition

Application for extension of time by the applicant dismissed.

Orders

  • ['The application for extension of time is dismissed.']