Martin v R; Martin v R

Court of Criminal Appeal (NSW)|2021-09-01|Before: Leeming JA, Hamill J, Lonergan J

Background

The sentencing process was lengthy, mostly complicated by the absence of agreement as to the precise facts upon which sentence would be imposed. Both applicants were cross-examined extensively. Ultimately their evidence on the major factual issue, namely, whether they acted under duress, was not accepted. There is no challenge to that conclusion.
Much earlier, on 9 July 2014, in proceedings in the Local Court at Campbelltown, guilty pleas were entered with a waiver of the committal process. However, junior counsel then appearing for both applicants made the position perfectly clear in the following exchange: "MS MOEN: I appreciate that, your Honour. If your Honour looks at the Sequence 1 matter in relation to Peter Martin, that is a manufacture not less than large commercial quantity methylamphetamine; your Honour will see there that the quantity referred to in that charge is 40,601.4 kilos; there's - as I understand it, the Crown case in relation to that current charge, the allegation is, in any event, about 47 kilos. But in any event, just to be clear for the record your Honour, the plea of guilty is to the elements of the offence, which doesn't include the quantity, it certainly includes an admission of at least a kilo. The same situation arises for Jim Martin; your Honour will see that that refers to in excess of 40 kilos of methylamphetamine. Again, Jim Martin's plea of guilty is to the elements of the offence, that being the quantity being not less than 1 kilo. The defence position is that both those matters, and also the summary matters under Sequence 2, and Jim Martin's Sequence 3 matter: they could all be committed for sentence, and the issue of quantum would be a matter for the sentencing judge to resolve. HIS HONOUR: Does the DPP agree? MS BLIZARD: No, your Honour."

Reasons of the primary judge and the applicants' submissions

The sentencing judge addressed the question of the utilitarian value of the applicants' pleas at pp 79-82 of her reasons.
Her Honour commenced with the defence submission "that the offenders each indicated pleas of guilty in the Local Court on 9 July 2014" and that a 25% discount should be given. Her Honour then noted that the Crown referred to "a persistent disavowal by the offenders of the 33 kilograms of methylamphetamine found at the Quebec Quebec find", although her Honour also noted the Crown's concession that the applicants accepted responsibility for the drugs found at the Quebec Quebec find in May 2015, when the proceedings were listed to be heard in September 2015. Her Honour had regard to the fact that sentencing proceedings involved evidence taken over 7 days, ultimately resulting in factual findings made adversely to them, and concluded that the appropriate discount was 15%. Her Honour added the following: "I note that the discount is not impacted upon by the fact that there was lengthy evidence in the sentencing proceedings insofar as it is appropriate in matters of such seriousness for the Court to be assisted by full detail."
In oral submissions, junior counsel for the applicants sought to maintain, as had been put to the sentencing judge, that "questions such as the precise roles played by Peter and Jim Martin, the precise quantum of [methylamphetamine] located and the precise quantum for which Peter and Jim Martin are each to be held criminally responsible are all matters to be resolved as part of sentence proceedings". It was said that none of those matters were either elements of the offence or "of the essence" of the offence. Indeed, in a hearing on 5 August 2014, the defence applied for each plea to be accepted.

Consideration

Sentence was imposed in 2017, prior to the introduction of Division 1A within Part 3 of the Crimes (Sentencing Procedure) Act. Section 22 required the Court to take into account the fact that both offenders had pleaded guilty, and the timing of the plea (or the indication of the intention to plead) and empowered the court to impose a lesser penalty than it otherwise would have done. A reduction is not mandatory, as s 22(2) made clear, but in that case the court is required to indicate its reasons for doing so and make a record of those reasons: see Nanai v R [2010] NSWCCA 21 at [37]-[43]. The appropriate levels of reduction are found in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; hence the reference to the 25% in this ground.
It is clear that the finding that there should be a discount of 15% was one with which this Court will interfere only in the event that error as described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 is made out.
The ground as formulated was that "her Honour did not take into account this offer [in the Local Court] to plead guilty in determining the appropriate discount". That is not made out. Her Honour commenced the four pages of reasons directed to this issue by stating that "The defence submits that the offenders each indicated pleas of guilty in the Local Court on 9 July 2014". Her Honour then dealt with the parties' submissions concerning the disavowal in the Local Court of responsibility for the 33 kilograms of methylamphetamine found at "Quebec Quebec".
However, the ground was debated in this Court in a substantive way which disregarded the inapt form of the notice of appeal. Dealing with the matter at the level of substance, its gravamen is that the sentencing judge erred in not giving a discount of 25% in light of the applicants' offer to enter pleas in the Local Court in July 2014.
It is clear that an early guilty plea in circumstances where nonetheless the offender puts the Crown to proof on factual issues and loses does not entitle the offender to the same discount on utilitarian grounds as a person who does not require a contested hearing: R v AB [2011] NSWCCA 229; 59 MVR 356 at [32]. There, Johnson J said, with the agreement of Bathurst CJ and Hoeben J, at [27]: "Where a sentencing Court is required to undertake a lengthy hearing in circumstances where ... there are disputed questions of fact which are resolved adverse to an offender, then a sentencing Court is entitled, if not required, to have regard to these practical events in assessing the utilitarian value flowing from the pleas of guilty."
That is not to penalise the offender, who is entitled to put the Crown to proof. It is merely to deny that there is, in such a case, the same utilitarian benefit as would be the case following a guilty plea which does not involve a contested hearing.
Moreover, as Johnson J said in AB at [33]: "[A]s a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender."
Bathurst CJ, who agreed, added by way of elaboration at [2] that: "Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity."
Those principles have been applied in Owens v R [2017] NSWCCA 16 at [64].
We note for completeness that there is some simplification in the summary of the plea given above. The charges proposed by the prosecution were altered, and there was a complaint by the applicants that they were unable to respond to a fully detailed Crown case. Nonetheless, the large sticking point was whether they were responsible for the 32 kilograms of methylamphetamine found at "Quebec Quebec". On the view we take, it is not necessary to summarise the details of the correspondence between the Crown and the defence.
Let it be assumed, favourably to the applicants, that the offer to plead in July 2014 was capable of attracting a 25% discount. The discount actually applied when sentence was imposed could not put to one side the fact that the offenders had advanced a substantial factual issue, namely, whether they were acting under duress. They failed on that issue. That issue very substantially contributed to some seven days of hearings in the sentencing process. The utilitarian value of the early pleas was correspondingly diminished.
Against this, the applicants pointed to the statement by the primary judge that it was appropriate for the Court to be assisted in full detail by lengthy evidence. The primary judge took that view, but that does not detract from the fact that days of court time were occupied by a factual issue raised by the applicants on which they failed.
The primary judge concluded her reasoning thus: "Pleas were not forthcoming. The matters proceeded to arraignment and were ultimately listed for trial in September 2015. The defence indicated to the Crown in May 2015, post-arraignment, that the offenders took responsibility for the Quebec Quebec find. The matters proceeded by way of sentencing proceedings for some seven days of evidence. The appropriate discount to recognise the utilitarian value is 15% for each offender in the manufacturing charges."
It was at least implicit that her Honour took into account the early offer to plead, but also the diminished utilitarian value of that offer, reflected in the lengthy sentencing proceedings, in reaching a discount of 15%. That approach reflects a long practice in courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted: see Regina v Oinonen [1999] NSWCCA 310.
We do not consider that a basis to interfere in the discount has been established. While we favour granting leave to appeal, this ground is not made out.

Ground 4 - failure to find special circumstances

The sentencing judge declined to make any finding of special circumstances. On appeal, it was said that the findings of good prospects of rehabilitation, prior good character, first time in custody coupled with the risks of institutionalisation, together with, in the case of Jim Martin, the hardship arising from his partial blindness and, in the case of Peter Martin, his psychiatric condition, all favoured a finding of special circumstances, so as to permit a variation in the statutory ratio between the parole period and the non-parole period.
This ground was addressed in a page in the written submissions and was not elaborated orally.
There is nothing in this ground. On any view, the sentences imposed will involve many years of supervised parole upon the applicants' release from custody. In Magro v R [2020] NSWCCA 25, when dealing with a sentence with a non-parole period of 10 years and an additional period of 3 years and 4 months, this Court noted that: "The sentence to be imposed upon Mr Magro will be of such a duration as to allow for a sufficient period of parole to assist him to reintegrate into society, without the need for a longer period than that which arises from the ordinary ratio of sentence."
The position is a fortiori in the present case. Even in the absence of a finding of special circumstances, both applicants would inevitably have many years between the completion of the non-parole period and the balance of their terms of imprisonment.
It was open to the sentencing judge, who expressly considered the point, to decline to make a finding of special circumstances. This proposed ground does not warrant a grant of leave.

Ground 3 - manifest excess

The "primary ground" of these applications was that the sentences were manifestly excessive. That is to say it may be inferred that the sentence reflects some misapplication of principle, even though none appears on the face of what was said by the judge imposing sentence: see Nealon v R [2021] NSWCCA 286 at [18]-[20] and the authorities there cited.
The applicants accepted that the offences were "objectively grave examples of the offence". That concession was properly made. The quantity of the drug was more than 40 times that sufficient to amount to a "large commercial quantity", and the sophistication of the operation was clear from the agreed facts.
However, in light of the applicants' good character, guilty pleas, remorse (as found by her Honour), positive prospects of rehabilitation, partial blindness (in the case of Jim) and emotional distress (in the case of Peter), the applicants had strong subjective cases, such that sentences with an undiscounted starting point of 35 years disclose manifest excess.
The applicants contrasted Kalache, which involved two counts, with no genuine remorse, and a "truly appalling background of antecedent drug-related crime" (at [11]) where on a Crown appeal, head sentences of 21 years and 16 years would have been imposed. In R v Little and Walsh [2006] NSWCCA 406, Walsh was 25 years old with no criminal record, an amphetamine addiction and a gambling habit who was sentenced to 32 years with a non-parole period of 24 years for a supply charge, to be served concurrently with firearms charges and matters of dishonesty.
The applicants also relied on three other cases which, although post-dating the sentence they challenged, were said to confirm that it was manifestly excessive. 1. In Kwok v R [2018] NSWCCA 200, a pure weight of 12 kilograms of methylamphetamine was found, and the calculated pure weight of methylamphetamine was some 61 kilograms, (the charged weight was 144 kilograms). Mr Kwok was found to be "at the apex of the known offenders", pleaded guilty, was 58 when sentenced, and received 22 years imprisonment for manufacturing, and 15 years for the supply. 2. In R v Wan [2017] NSWCCA 261, a co-offender of Mr Kwok albeit with a subordinate role was sentenced to 18 years with a non-parole period of 12 years for the manufacturing offence, with a discount of 25%. The undiscounted starting point was thus 24 years, and it was not suggested that the sentence was inadequate. 3. In Bell v R [2019] NSWCCA 271, the offender pleaded guilty to a single count of manufacturing some 30 kilograms of methylamphetamine in a large scale, sophisticated laboratory. He was found to be a "worker", although a significant one. He was 29 years old, with no prior criminal convictions and good prospects of rehabilitation. He was sentenced to 13 years and 4 months imprisonment, with a non-parole period of 10 years, reflecting an undiscounted starting point of 17 years and 9 ½ months. An appeal was allowed, reducing the sentence so that the starting point was 17 years 4 months.
The applicants submitted that they had stronger subjective cases that any of the offenders summarised above.
The applicants also relied on sentencing statistics. Very little can be derived from this, in light of the very substantial quantities involved in the present case, and the familiar limitations of statistics (the authorities may be found in Hall v The Queen [2021] NSWCCA 220 at [132]). In oral submissions, we did not understand Ms Stratton to place any substantial reliance on those statistics.
The Crown contended that the sentences were not plainly unreasonable or unjust, doubted the utility of comparable cases, and submitted that Jim Martin had enjoyed considerable leniency in the partial accumulation of the fire offence.
We have concluded that the sentences are so high that they are correctly described as "manifestly wrong" and "plainly unjust": see, for example, Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ citing House v The King at 55). This is not to substitute our own opinions for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671-672 [15]. Rather, it is to recognise and give effect to the positive findings made by her Honour and to reach the conclusion that the sentences imposed on the applicants were so far outside of an appropriate discretionary range that this Court must intervene. The sentencing judge said that she recognised "that these sentences probably feel almost like a life sentence; they are intended to be fairly rigorous sentences for the reasons I have outlined".
The offending is a grave example of a very serious offence. The maximum penalty and the standard non-parole period reflect the assessment of the harm to the community that the manufacture of illicit drugs causes; it is difficult to assess how much damage, directly and indirectly, such a substantial quantity of methylamphetamine does. We also bear in mind the precursor offences, which are themselves very serious instances of their type, which were to be taken into account imposing sentence. Even so, the undiscounted starting point of 35 years discloses error. As the applicants observe, and the Crown did not dispute, they have strong subjective cases, stronger than those who have been sentenced for similar offending and received lesser sentences.
It is necessary to resentence. Affidavits of both applicants were read without objection in that event. Neither applicant has been the subject of any disciplinary action while in custody. Both have undertaken and completed a series of educational and training courses (engineering, computing, horticulture and hospitality). Both are employed in positions of some responsibility in the correctional centres. It would not be unfair to say that, on the evidence placed before this Court, both have been model prisoners.
Further, both have been affected in ways that could not have been foreseen when sentenced, including by the COVID-19 pandemic, a serious injury suffered by Jim's mother, and by the deaths of two relatives, one unexpectedly, whose funerals they were unable to attend.
The evidence confirms the findings of good prospects for rehabilitation.
For the purpose of resentencing we proceed upon the same factual basis as determined by the primary judge (no aspect of which was sought to be altered). The conduct amounted to a grave example of the offence. We take into account the possession of the precursors.
We would not find special circumstances. Both sentences should be backdated to the same extent as the primary judge (in the case of Jim, resulting in a partial accumulation with the sentence for the fire offence).
We would start with an undiscounted sentence of 28 years imprisonment for each man. Allowing the same discounts as the primary judge (and some rounding): 1. In the case of Peter Martin, the sentence is 23 years and 9 months imprisonment, with a non-parole period of 17 years and 9 months commencing 13 January 2013 and expiring 13 October 2030, which is the first date on which he is eligible to be released on parole. The balance of the term expires on 13 October 2036. 2. In the case of Jim Martin, the sentence is 22 years and 4 months imprisonment, with a non-parole period of 16 years and 9 months commencing 13 January 2015 and expiring 13 October 2031, which is the first date on which he is eligible to be released on parole. The balance of the term expires on 13 May 2037.
We make the following orders. In proceeding 2013/11122 (Peter Martin):
Grant leave to appeal, confined to grounds 2 and 3.
Appeal allowed.
Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 23 years and 9 months, commencing 13 January 2013, with a non-parole period expiring 13 October 2030, and with the balance of term expiring 13 October 2036. The earliest date on which he is eligible for release is 13 October 2030. In proceeding 2013/11126 (Jim Martin):
Grant leave to appeal, confined to grounds 2 and 3.
Appeal allowed.
Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 22 years and 4 months, commencing 13 January 2015, with a non-parole period expiring 13 October 2031, and with the balance of term expiring 13 May 2037. The earliest date on which he is eligible for release is 13 October 2031.

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date 25 October 2016) Criminal Appeal Act 1912(NSW)

Subjective case

Turning to the applicants' subjective cases, her Honour noted that Peter Martin was 52 years old at the time of the offences and at the time of sentence aged 57, while Jim Martin was 26 years old at the time of the offences and at the time of sentence was 31. Peter was the youngest of 5 siblings in a family that lived first in a tent and then a garage, with concerns about malnutrition. His father was a boxing champion who worked as a railway guard and a Methodist minister, and who inflicted domestic violence against the mother virtually every night, in the presence of the children. The father repeatedly sexually abused Peter Martin's sister, and Peter Martin was himself physically abused from a young age as well as being bullied at school.
Peter Martin left home at 16, spent some time homeless, suffered a motorbike accident when aged 17 and was left with ongoing chronic and debilitating leg and hip pain. Aged 23, he commenced a relationship with Jim Martin's mother, which endured until he was aged 31 and Jim was around 4 years old. They bought a share in a remote alternative community, camping in tents for the first 2 years.
Jim Martin reported that both he and his older sister were abused by their mother's new partner after Peter had separated from their mother. Peter then underwent several months of hospitalisation for mild paranoid schizophrenia, delusions and depression. After recovery he worked as a gardener and farm labourer. He obtained interim custody of Jim and his sister, but in 1991 the Family Court ordered that they reside with their mother. She took them to live in New Zealand.
In 1997, Peter Martin and Danny Sherry jointly purchased the home in Toongabbie and the following year Jim's sister moved in with them. In 2005, Jim moved there as well. In 2006, aged 21, Jim Martin was severely injured in a motorbike accident, losing the vision in his left eye.
The primary judge then addressed a dispute as to the appropriate discount to be afforded to the applicants' pleas of guilty. Her Honour ultimately concluded that a discount for its utilitarian value was 15% for each offender in relation to the manufacturing charges. This finding, and the evidence on which it turns, is the subject of the proposed second ground of the appeal and we shall return to it below. It is not necessary to address the other aspect of the discount applied to one applicant's sentence.
The primary judge noted that Jim Martin had no prior criminal history while there was no significant offending in Peter Martin's history (which comprised relatively minor offences in the period from 1979 to 1995). Both had the advantage of ample good character references and her Honour found that, notwithstanding the rejection of the applicants' version of duress given on oath, both had established remorse sufficient to engage s 21A(3)(i). Her Honour found that both men had positive prospects of rehabilitation and were unlikely to reoffend.
Jim Martin was at high risk of losing sight in his remaining eye, and gave evidence about the difficulty in receiving treatment and delays whilst in gaol and his anxiety that the prison environment makes him more vulnerable to losing vision. Her Honour accepted that his experience in custody was on that account more burdensome. Peter Martin relied on psychological evidence to the effect that his history of abuse suggested "a psychological vulnerability". Her Honour found that while that did not impact on the assessment of moral culpability, it was taken into account in making his experience in custody more onerous. Her Honour also relied upon the substantial delay (more than 4 years) during which time they had remained in custody on remand, with a classification that equated with maximum security, thereby reducing the courses and work options available to them. Her Honour said that the effluxion of time and the uncertainty concerning the outcome which made their custody more onerous would be taken into account.
Her Honour also expressly had regard to considerations of parity and totality. Her Honour rejected applications made by both applicants for findings of special circumstances, finding that the matters relied upon had already been taken into account as part of the instinctive synthesis. This was the subject of proposed ground 4. Her Honour stated that neither counsel had been able to refer to any comparable authority, but that she had considered the cases of R v Kalache [2000] NSWCCA 2 and R v Little and Walsh [2006] NSWCCA 406, stating that those cases concerned serious offending but not on the same terms as present. Her Honour added: "In the decision of Kalache, the offending and the subjective features caused the Court to place weight on the sentencing purpose for the protection of the community. Recidivism was clearly a matter of concern. Here although the offending is extremely grave and very strong weight must be placed on the sentencing purpose of general deterrence, the offenders have both satisfied the Court as to their good prospects of rehabilitation, so reducing the weight that otherwise would have to be given to the sentencing purpose of the protection of the community."
Sentence was imposed on 12 May 2017. Almost four years later, applications for leave to appeal were filed, on 12 April 2021, in identical terms. Those applications were heard on 1 September 2021.

Proposed ground 1 - the role of the applicants

The first proposed ground of each appeal was that the primary judge "erred in assessing the role of [each] applicant". This was directed to the finding that each was a "principal". The applicants conceded that it had been open to the sentencing judge to find that the applicants were "principals" in the sense to which Simpson J referred in Nguyen v R [2011] NSWCCA 92 at [4], where her Honour said: "'Principal' is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. In my opinion, the indicator of the role of an offender as "principal" involves at least some of the following characteristics: • contributing financially to the cost of setting up the operation; • standing to share in the profit (as distinct from receiving payment); • having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise); • having some decision making role (which may not be different from the item above). • This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal."
This ground was directed to the proposition that if the sentencing judge found that the applicants were the sole principals, and at the apex of the operation, no such finding was open. The applicants said that any such finding would have to be established beyond reasonable doubt, in accordance with Olbrich v R [1999] 199 CLR 281 at [25]-[27]; [1999] HCA 54. It was submitted that the following evidence suggested that others had been involved: that it was a "very sophisticated" manufacturing operation, the quality of the product was "at the highest end of the spectrum", the applicants "to say the least, were not well-educated men" without expertise in chemistry or manufacturing and in particular, the existence of "Quebec Quebec". The defence case was that if Jim Martin had known of the existence of Quebec Quebec, he would have moved it so as to prevent its contents from being destroyed by the fires or discovered by police. No DNA or fingerprints from either applicant were found on Quebec Quebec, while the DNA of an unknown male was recovered from a swab taken from the press seal of a re-sealable bag labelled "Jelly". The applicants also submitted that an inference could be drawn from approximately 4000 calls intercepted and recorded involving the applicants, none of which concerned distribution, which necessarily suggested that others were involved, with the further consequence that, so it was submitted, "the applicants were not at the apex of the operation".

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