Regina v Lee Joshua Martin [2004] NSWCCA 416

Regina v Lee Joshua Martin [2004] NSWCCA 416

Although the sentencing judge initially indicated an approach to s 44 that diverged from R v Way, no material error resulted because all relevant matters were to be considered in setting the non-parole period. The 15% guilty plea discount was within the discretionary range and consistent with R v Thomson and R v Dib. The total sentence of 5 years and 4 months was not manifestly excessive given the seriousness of the offence, the Form 1 matter and the fact the offence was committed on bail. However, insufficient consideration was given to the applicant's prospects of rehabilitation, which constituted special circumstances under s 44(2) justifying a reduced non-parole period of 3 years and...

Jurisdiction
Australia
Judgment Date
29 November 2004
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Before the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence of imprisonment confirmed; non-parole period quashed and substituted.
Legal Topics
['robbery in Company While Armed With an Offensive Weapon' 'crimes (sentencing Procedure) Act 1999 S 44' 'non Parole Period' 'special Circumstances' 'discount for Utilitarian Value of Guilty Plea' 'manifest Excess']
['criminal Law' 'sentencing'] ['robbery in Company While Armed With an Offensive Weapon' 'crimes (sentencing Procedure) Act 1999 S 44' 'non Parole Period' 'special Circumstances' 'discount for Utilitarian Value of Guilty Plea' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Before the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying Crimes (Sentencing Procedure) Act 1999 s 44 when setting the non-parole period and balance of term.' "Whether the sentencing judge erred in assessing the utilitarian value of the applicant's guilty plea by allowing a 15% discount." "Whether the sentence was manifestly excessive having regard to the applicant's age, criminal record, plea, disadvantaged childhood and prospects of rehabilitation." "Whether the applicant's prospects of rehabilitation amounted to special circumstances justifying departure from the statutory ratio for the non-parole period."]

Ratio Decidendi

Although the sentencing judge initially indicated an approach to s 44 that diverged from R v Way, no material error resulted because all relevant matters were to be considered in setting the non-parole period. The 15% guilty plea discount was within the discretionary range and consistent with R v Thomson and R v Dib. The total sentence of 5 years and 4 months was not manifestly excessive given the seriousness of the offence, the Form 1 matter and the fact the offence was committed on bail. However, insufficient consideration was given to the applicant's prospects of rehabilitation, which constituted special circumstances under s 44(2) justifying a reduced non-parole period of 3 years and...

Court Disposition

Leave to appeal granted; appeal allowed; sentence of imprisonment confirmed; non-parole period quashed and substituted.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentence of imprisonment for 5 years and 4 months to commence on 14 June 2003 confirmed.' 'The non-parole period of 4 years is quashed. In lieu thereof, non-parole period of 3 years 3 months commencing on 14 June 2003 and expiring on 13 September 2006 substituted.']