Martinez v R [2015] NSWCCA 5

Martinez v R [2015] NSWCCA 5

The sentencing judge erred in treating the offence as having been committed while the applicant was bound by a good behaviour bond, so leave to appeal was granted. However, the applicant was not entitled to have all overlapping pre-sentence custody counted again because the Local Court had taken the relevant custody into account when dealing with the Commonwealth and State offences. Having regard to the planned and premeditated arson, the engagement of others, the considerable damage and risk to nearby residential premises, the applicant's more senior role, and the Form 1 offence, no lesser sentence than 3 years 10 months imprisonment with a non-parole period of 2 years was warranted.

Jurisdiction
Australia
Judgment Date
05 February 2015
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['pre Sentence Custody' 'backdating of Sentence' 'bail Refused for Multiple Offences' 'form 1 Offences' 'conditional Liberty' 'power of Appellate Court to Re Sentence' 'no Lesser Sentence Warranted']
['criminal Law' 'sentencing' 'criminal Appeals'] ['pre Sentence Custody' 'backdating of Sentence' 'bail Refused for Multiple Offences' 'form 1 Offences' 'conditional Liberty' 'power of Appellate Court to Re Sentence' 'no Lesser Sentence Warranted']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge failed to take into account all pre-sentence custody served for the break, enter and commit serious indictable offence and to backdate the sentence accordingly.' 'Whether the sentencing judge erred in finding that the offence was committed in breach of a s 9 good behaviour bond.' 'Whether, despite established error, no lesser sentence was warranted on appeal.']

Ratio Decidendi

The sentencing judge erred in treating the offence as having been committed while the applicant was bound by a good behaviour bond, so leave to appeal was granted. However, the applicant was not entitled to have all overlapping pre-sentence custody counted again because the Local Court had taken the relevant custody into account when dealing with the Commonwealth and State offences. Having regard to the planned and premeditated arson, the engagement of others, the considerable damage and risk to nearby residential premises, the applicant's more senior role, and the Form 1 offence, no lesser sentence than 3 years 10 months imprisonment with a non-parole period of 2 years was warranted.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']