Martin v R [2011] NSWCCA 188

Martin v R [2011] NSWCCA 188

Although the sentencing judge erred by failing to assess the offence relative to mid range offending and by treating commission while on bail as aggravating objective seriousness, the judge otherwise correctly identified the relevant features. The offence was at or just below mid range, and the applicant's subjective circumstances were given appropriate weight. The Court was not persuaded that the effective sentence of 2 years imprisonment was unwarranted or that another sentence was warranted in law, so the appeal was dismissed despite the errors.

Jurisdiction
Australia
Judgment Date
22 August 2011
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['break and Enter and Commit Serious Indictable Offence' 'objective Seriousness' 'standard Non Parole Period' 'aggravating Factors' 'domestic Violence' 'leave to Appeal Against Sentence']
['criminal Law' 'sentencing'] ['break and Enter and Commit Serious Indictable Offence' 'objective Seriousness' 'standard Non Parole Period' 'aggravating Factors' 'domestic Violence' 'leave to Appeal Against Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to assess objective seriousness relative to mid range offending.' 'Whether the sentencing judge erred by failing to record reasons for departing from the standard non-parole period as required by s 54B(4) of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the sentencing judge erred by treating the fact that the offence was committed while the applicant was on bail as aggravating the objective seriousness of the offence.' 'Whether, despite established error, a lesser sentence was warranted in law.']

Ratio Decidendi

Although the sentencing judge erred by failing to assess the offence relative to mid range offending and by treating commission while on bail as aggravating objective seriousness, the judge otherwise correctly identified the relevant features. The offence was at or just below mid range, and the applicant's subjective circumstances were given appropriate weight. The Court was not persuaded that the effective sentence of 2 years imprisonment was unwarranted or that another sentence was warranted in law, so the appeal was dismissed despite the errors.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal is granted.' 'The appeal is dismissed.']