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[2009] NSWCCA 175
respondent. Leave to appeal granted; appeal dismissed. The District Court sentence remained undisturbed ([43], [46]).
No linked legislation citations have been extracted yet.
Martinelli's sentence for commercial-quantity amphetamine supply was not changed on appeal. The Court found that the material about gambling did not establish an addiction or show that gambling was connected to the drug offending. It also found no proper evidentiary basis to treat drug use as reducing his responsibility or changing the seriousness of the offence. Given the scale and organisation of the supply business, his criminal history and the sentencing judge's explanation of the sentence, the Court saw no reason to intervene. Leave to appeal was granted, but the appeal was dismissed.
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2,121 words · generated 02/10/2026
Martinelli v Regina [2009] NSWCCA 175 concerned an application for leave to appeal against a sentence imposed in the District Court. Martinelli had pleaded guilty to one count of supplying a commercial quantity of amphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985. Two further offences, involving supply and possession of cocaine, were taken into account on a Form 1 ([2]–[3]).
The offending was treated as part of a sustained and organised drug supply business. The agreed facts described more than 3,000 relevant intercepted calls on eight telephone services, activity from October 2006 to September 2007, and transactions involving many clients and more than 60 telephone services. The sentencing judge also referred to methods used to conceal the operation, including fictitious names and addresses for mobile phones, code words, surveillance equipment and discussions about avoiding police detection ([6]).
The judge assessed the operation as extensive, sophisticated and profit-driven, involving supply not only to street users but also to other suppliers. He placed the objective seriousness at or above the mid-point for this type of case ([6], [14]–[15]). Martinelli’s criminal history included earlier drug-supply matters, including a 2004 sentence for supply of a prohibited drug other than cannabis ([9]).
Martinelli pleaded guilty at the first opportunity. The District Court applied a 25 per cent discount for the plea’s utilitarian value. It imposed a non-parole period of seven years, followed by a balance of term of three and a half years ([4]–[5]).
The appeal raised three grounds: that the sentencing judge gave insufficient weight to evidence of gambling, insufficient weight to evidence of prior or current drug use, and that the sentence was manifestly excessive ([21]). Spigelman CJ gave the principal reasons. McClellan CJ at CL and Johnson J agreed ([44]–[46]). The Court granted leave to appeal but dismissed the appeal, leaving the sentence undisturbed ([43]).
The first ground depended on whether the evidence established a gambling problem relevant to the offending. The material included police enquiries indicating that Martinelli gambled significant sums on poker machines during the surveillance period ([20]). The pre-sentence report referred to possible long-term gambling issues and suggested that resulting financial pressure might have compounded his offending. It also said further investigation might be prudent ([18]–[19]).
The Court distinguished indications of gambling from evidence of addiction and a connection to the offence. It found that none of the material reached the level of establishing addiction, and that there was no persuasive evidence linking gambling to the drug business ([23]). Martinelli had not given evidence about such a connection, and the Court held that the sentencing judge was not obliged to speculate about one ([23]). The judge’s view that heavy gambling could reflect having money to spend, rather than addiction, was open on the evidence ([24]–[25]).
The Court made clear that this was not a rule that addiction can never matter. It said that properly supported evidence of addiction and a direct link to offending could make the issue relevant to the sentencing discretion ([28]). But the evidence in this case did not establish compulsion or obsession, or otherwise show an effect on moral culpability or objective seriousness ([26]–[29]).
The drug-use ground failed for a related evidentiary reason. The pre-sentence report recorded Martinelli’s account of a 12-month period of drug use in 2003, while also noting earlier disclosures that could cast doubt on his more recent account ([17]). The report also contained the statement that the drugs were for personal use by Martinelli and his partner, with occasional sales to friends. The sentencing judge rejected that account as a deliberate lie, having regard to the nature and scale of the supply operation ([10]–[12]). The agreed facts also recorded that Martinelli said he was not a user of cocaine ([32]).
The Court concluded that there was no proper basis to take drug use into account as affecting the objective seriousness of the offence or Martinelli’s moral culpability ([33]). Its reasoning turned on the evidence before the sentencing judge, including the judge’s evaluation of the report and the agreed facts, rather than on a general proposition that an offender’s drug use can never be relevant.
On manifest excess, the Court considered the sentence in the context of the overall offending and Martinelli’s criminal history. The business was extensive and organised, operated over a significant period, and was conducted for profit ([35]–[40]). The prior convictions for supply and the Form 1 matters were relevant to the overall sentencing assessment. The Court said the criminal history indicated that personal deterrence was a matter entitled to weight ([36]). It also noted that the sentencing judge had identified the plea as the only mitigating matter of real significance, after finding that the asserted gambling addiction and drug use did not warrant significant weight ([37]).
The Court observed that the sentencing judge had identified the facts and articulated the weight given to the relevant matters. The assessment that the offending was in the mid-range or higher was open to the judge, so the Court found no basis to interfere ([38], [42]). It referred to R v Way as involving reasonably similar facts, including an organised drug supply operation and a guilty plea, but did not treat that comparison as automatically determining the appropriate sentence in Martinelli ([39]–[40]).
The judgment does not set out a comprehensive account of the law before Martinelli or announce a new statutory test. Its central contribution, as expressed in the reasons, is an application of existing sentencing considerations to the evidence in this case.
On gambling, the Court described a conditional proposition: addiction may be relevant where there is proper evidence of the addiction and a direct link to the offending ([28]). It cited R v Petrovic, R v Cavallin, R v Molesworth and R v Novak in support of that proposition. The judgment does not set out the full reasoning or facts of those authorities, so their precise scope cannot be derived from Martinelli alone. Its practical distinction is between evidence showing that a person gambled and evidence capable of establishing an addiction that bears on the offending ([23]–[28]).
For Martinelli, the record of substantial gambling and the report’s expressed concerns did not establish the necessary features. The Court emphasised the lack of evidence of compulsion or obsession and the absence of a persuasive connection between gambling and the drug supply activity ([23], [26]–[28]). The decision therefore illustrates the importance of evidentiary support for a proposed subjective sentencing consideration.
On drug use, the Court did not formulate a novel rule. It held that the sentencing judge lacked a proper basis to treat drug use as affecting objective seriousness or moral culpability on the material before the court ([30]–[34]). The decision also shows the sentencing judge’s role in assessing whether a pre-sentence report’s statements are reliable when considered against other evidence and the agreed facts ([10]–[12], [30]–[33]).
On appellate review, the Court’s reasons apply restraint to the sentencing judge’s discretionary assessment. It accepted that the sentence was significant, but found the evaluation of seriousness and the weight given to relevant factors to be open on the evidence ([35], [38], [42]). The judgment does not say that a sentence is immune from review whenever reasons are given. Rather, its conclusion rests on the facts and the sentencing judge’s explanation in this particular matter.
At [23], the Court said the evidence did not reach the level of addiction and did not persuasively connect gambling with the drug offending. In plain English, evidence that someone gambled, even heavily, did not by itself establish that gambling affected why or how the drug crimes were committed.
At [26]–[27], the Court emphasised the absence of evidence of compulsion or obsession. The point was not simply that the record contained no formal diagnosis. The Court considered whether the evidence showed a kind of gambling problem that could bear on responsibility or the seriousness of the offence, and found it did not.
At [28], the Court stated that a sufficiently established addiction and a direct link to offending may make the issue relevant to sentencing. In plain English, an asserted addiction needs evidentiary support, and the sentencing relevance depends on its demonstrated connection to the offending. The Court expressly distinguished Martinelli’s case from that possibility.
At [33], the Court found no proper basis to treat drug use as affecting objective seriousness or moral culpability. In plain English, the material did not sufficiently establish drug use as a circumstance that should alter the sentencing assessment for this offence.
At [38], the Court said the sentencing judge’s evaluation was open and there was no reason to interfere. This reflects the appellate conclusion that the judge’s assessment was within the permissible range of discretion on the facts before the District Court.
At [43], the formal result was: “Leave to appeal should be granted and the appeal dismissed.” In plain English, the Court allowed Martinelli to bring the appeal but rejected the challenges to the sentence.
Martinelli is most directly relevant where an offender argues that gambling addiction should affect sentencing, but the evidence consists mainly of gambling activity, financial pressure, or cautious statements in a report that there may be a problem. The judgment indicates that those matters did not, in this case, establish compulsion, obsession, addiction or a relationship between gambling and the offending ([18]–[28]).
It is also relevant where an offender relies on drug use as a subjective sentencing factor, but the accounts are disputed, limited, or inconsistent with other material. The Court considered the report’s account, the sentencing judge’s rejection of a personal-use explanation, and the agreed statement that Martinelli was not a cocaine user. On that record, it found no proper basis to treat drug use as affecting culpability or objective seriousness ([10]–[12], [17], [30]–[34]).
The judgment also concerns sentencing for organised, profit-driven drug supply over an extended period, with substantial concealment and communication methods, and prior drug-supply convictions. Those features informed the assessment of seriousness and personal deterrence in this case ([6], [9], [14]–[15], [35]–[40]). It does not establish a numerical sentencing tariff for other cases.
The supplied judgment does not cite any later decisions or describe how subsequent courts treated Martinelli. It is therefore not possible, from this source alone, to state whether later courts followed, distinguished, limited or developed its reasoning.
The authorities discussed in Martinelli are earlier authorities, not later treatment of Martinelli. At [28], Spigelman CJ referred to R v Petrovic, R v Cavallin, R v Molesworth and R v Novak when explaining that addiction supported by proper evidence and directly linked to offending may be relevant. At [39], the Court compared the facts with R v Way, noting similarities in the organised nature of the business and the presence of a guilty plea. The judgment does not describe those cases as having considered Martinelli.
Accordingly, any assessment of the decision’s subsequent treatment would require sources beyond this judgment. This deep dive does not infer a later line of authority or claim that Martinelli has been adopted as a general test.
The judgment does not define what evidentiary material will, in every case, amount to proper evidence of addiction. It refers to evidence of addiction, compulsion or obsession, and a direct link to offending, but does not prescribe particular forms of proof or a threshold applicable to all cases ([26]–[28]). Nor does it decide how a sentencing court should assess a less direct relationship between addiction and offending.
The decision also does not determine whether gambling can be relevant to sentencing in ways other than affecting moral culpability or objective seriousness. Its conclusion was tied to the arguments and evidence before it, and the Court’s reasons focused on whether gambling had a demonstrated connection with this drug supply offending ([23]–[28]).
On drug use, the judgment does not resolve how a sentencing court should weigh credible evidence of substance dependence where it is connected to offending. It decides only that, on the evidence before the Court, there was no proper basis to take drug use into account as affecting the relevant assessments ([30]–[34]).
Finally, the judgment does not provide a general sentencing range for commercial-quantity amphetamine supply. It notes the statutory maximum and standard non-parole period, the plea discount, the objective features of the business, and similarities with Way, but its conclusion is specific to Martinelli’s record and circumstances ([3]–[6], [38]–[42]).
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CITATION: Martinelli v Regina [2009] NSWCCA 175
JUDGMENT OF: Spigelman CJ at 1, 46; McClellan CJatCL at 44; Johnson J at 45
DECISION: 1 Leave to appeal granted. 2 Appeal dismissed.
CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender - gambling addiction - objective seriousness of offence - no evidence of compulsion or obsession or direct link to offending - CRIMINAL LAW - sentence - purpose of sentence - deterrence - overall criminal history indicated that personal deterrence was a matter entitled to weight - CRIMINAL LAW - sentence - sentencing procedure - material relevant for determining appropriate sentence - pre-sentence reports - trial judge entitled to doubt comments in pre-sentence report
LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
R v Cavallin (Victorian Court of Appeal, 24 July 1996, unreported) R v Petrovic [1998] VSCA 95 CASES CITED : R v Molesworth [1999] NSWCCA 43 R v Novak (1993) 69 A Crim R 145 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
PARTIES: Nicholas Martinelli (Applicant) Regina (Respondent)
COUNSEL: A J Bellanto QC (Applicant) L Babb SC (Respondent)
SOLICITORS: Bilbie Dan Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
SPIGELMAN CJ McCLELLAN CJ at CL JOHNSON J
Tuesday 23 June 2009 Martinelli v Regina Judgment 1 SPIGELMAN CJ: The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge Coolahan in the District Court on 3 September 2008. 2 The applicant pleaded guilty to one count of supplying a commercial quantity of amphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the Act"). There were also two Form 1 offences taken into account for supply and possess a prohibited drug, namely 28 grams of cocaine contrary to s 25(1) and s 10(1) of the Act respectively. 3 The maximum penalty for an offence under s 25(2) of the Act is 20 years imprisonment or a fine of $385,000 or both. There is a standard non-parole period of 10 years. The maximum penalties for the Form 1 offences are 15 years imprisonment and/or a $220,000 fine for supply and two years imprisonment and/or a $2,200 fine for possession. 4 His Honour found the plea was entered at the first opportunity and applied a 25 percent discount on sentence on the basis of its utilitarian value for the administration of justice. 5 The applicant was sentenced to a non-parole period of seven years to date from 13 October 2007 and to expire on 12 October 2014, with a balance of term of three and a half years to expire on 12 April 2018. 6 The hearing on sentence proceeded on the basis of an agreed set of facts which were summarised by his Honour. With respect to the retail drug supply business that the applicant had conducted, his Honour said: "The offender operated this business in a joint criminal enterprise with his brother and they utilised complicated strategies and techniques in an attempt to conceal their drug supply business. Some of these methods included the use of mobile phones registered in fictitious names and false addresses, the use of multiple mobile phone services in an attempt to prevent telephone interception by authorities, the use of code words when organising drug transactions, using the Italian language when arranging to source drugs and money, discussing with co-offenders various methods to avoid being stopped by police when transporting drugs, such as using taxis. In addition, the offender discussed with co-offenders methods of secreting drugs in his motor vehicle to avoid police detection; also arranging drug transactions with clients in shopping complexes, registered clubs, hotels and public streets, to reduce vehicular and pedestrian traffic to his home; and the offender also used electronic monitoring and surveillance equipment at his residence. … [T]he offender operated a business of supplying prohibited drugs, including amphetamines and cocaine. The offender had more than 3,000 relevant telephone calls intercepted on eight different telephone services which relate to his drug activities. The drug supply business operated by the offender was a daily operation between October 2006 and September 2007, involving many different clients who used well over sixty different telephone services. … The offender was engaged in the business of supplying drugs, not just to street users, but to other suppliers. The business was extremely active, extensive and sophisticated … He was a mid to higher level drug supplier … and the supply was … for profit." 7 On the issue of gambling and drug use, it is pertinent to note his Honour's specific observations. He said: "On his own admission, he is not a drug user and the supply was, obviously, therefore, for profit, perhaps to fund a gambling habit, but, in the absence of specific evidence of this, I cannot say." 8 After referring to the importance of general deterrence and the protection of the community in sentencing for drug offences, his Honour indicated that a full time custodial sentence was required for this kind of offence, except in the most exceptional circumstances. 9 With respect to subjective matters his Honour said: " … His criminal history begins in 1969 when he was fined for being the keeper of a common gaming house. In the 1980s and 1990s there are a number of convictions for similar types of offences. He was also dealt with for some serious driving matters. In 2001 he was placed on a s 9 bond for having goods in custody, fined for possessing a prohibited drug and ordered to perform community service for supplying a prohibited drug other than cannabis. On 22 April 2004 at this Court he was sentenced to periodic detention for twelve months with a non-parole period of six months for supplying a prohibited drug other than cannabis." 10 The applicant did not give evidence, but a pre-sentence report (Pre-Sentence Report, 21 August 2008) was tendered which his Honour characterised as "… of no use whatsoever. … none of the subjective material is relevant to the issue of sentence and, in any event, it is not supported by any independent evidence". His Honour referred particularly to the following statement as a "salient feature of the report": "Mr Martinelli reports that he agrees with the police facts in relation to the offences currently before the Court. He stated that the illicit drugs were for both he and his partner's personal use and he would on occasions sell illicit drugs to close friends." 11 His Honour added in this regard: "This assertion is patent rubbish and I have no doubt that it was a deliberate lie." 12 In this regard it is relevant to refer back to his Honour's particular findings as to the nature of the business that the offender had conducted: receiving some 3000 relevant telephone calls intercepted on eight different telephone services which relate to his drug activities and other such findings that his Honour made and which I have set out earlier in this judgment. 13 His Honour also referred to the applicant's medical history and accepted that he had prostate cancer which was currently in remission. His Honour observed that it could adequately be managed in custody, and made a "small allowance" on the basis of the illness. 14 His Honour also observed: " … given the extent and sophistication of the enterprise being operated by the offender and others, the objective seriousness falls to be determined at or above the mid point for a case such as this." 15 His Honour also said: "If the offender's record is not sufficient to constitute an aggravating factor under the section, the two previous convictions for supply raise to prominence issues of specific deterrence and the protection of the community. Further, it seems to me that the degree of planning and organisation involved in the commission of this offence, over the extended period of time over which it was committed, was more extensive than that contemplated by the legislature. The offence was committed in company. This is relevant, not so much as an aggravating factor, in that the actions of the offender were emboldened by the presence of others, but is relevant, in my view, to the nature and extent of the operation. The offence involved a series of criminal acts. The offence was committed for financial gain. As to mitigating factors, the only real mitigating factor I can find is the offender's plea of guilty. This was entered at the first available opportunity and should attract the discount of 25 per cent. There is, in this case, absolutely no evidence of remorse. As to the standard non-parole period, this, of course, is not strictly applicable because of the offender's plea, but it is, nonetheless, a useful reference point. The Form 1 matters are serious in themselves but, in reality, they form part, in my view, of the extensive and sophisticated drug dealing operation which was being conducted by the offender. This is, as I said earlier, a very serious example of this type of offence. The operation was sophisticated, extensive and on-going. It was conducted for profit. It calls for, in my view, a very significant full time custodial sentence, notwithstanding the age of the offender and his ill health, neither of which seem to have had any effect upon his commission of these offences." 16 Certain aspects of the pre-sentence report are pertinent to issues raised on the appeal. 17 With respect to drug use the pre-sentence report said: "Mr Martinelli stated that his only period of illicit drug use was for a twelve month period in 2003. He stated that he would consume such orally once to twice a week. He cited ongoing emotional issues and accessibility via his then de-factor partner as compounding factors relating to his use of amphetamines. He stared that around the period of the loss of his parents he was formally diagnosed with cancer and this sent him into a period of emotional turmoil which he claims was a catalyst for his drug use. However the influence of his then partner who has been identified as having a long term dependence on illicit substances appears to have also been a factor. Further, the inmate has made disclosures to this Service in the past that he used amphetamines for approximately 3 years prior to the commission of the offence of 'Supply Prohibited Drug' in 2003. This raises the concern that the offenders most recent disclosures regarding his illicit drug use may not be indicative of his actual levels of use; nor the extent to which it has impacted on his lifestyle and consequently his offending behaviours." 18 With respect to gambling the pre-sentence report said: "Community inquiries and perusal of the offender's prior criminal history indicate that there may be some long term issues relating to the offenders gambling habits. It is of concern that should this be the case the consequent financial pressure that this would have created may have further compounded Mr Martinelli's offending behaviours. Further investigation in this area may be prudent." 19 The report also said, "the offender may have an unaddressed gambling and loss and grief issues which would further compound his offending behaviour". The report went on to make recommendations for strategies including "drug and alcohol assessment"; "monitor illicit drug use" and "assessment of gambling issues". 20 It is also pertinent to note the following statement in the agreed statement of facts: "Police enquiries at Western Suburbs Leagues Club indicate the offender was gambling significant amounts of money on the poker machines throughout the surveillance period."
The Appeal 21 The applicant contends that His Honour fell into error in imposing the sentence that he did on the following grounds:
Ground One 22 The applicant contends that his Honour failed to give due weight to what the ground refers to as "the applicant's gambling habit". The applicant relied upon the references in the agreed facts, the pre-sentence report and on his convictions in relation to gambling, as a foundation for an inference "that gambling has been a longstanding problem for the applicant". The applicant submits that his Honour failed to give due weight to the evidence before him in this regard. 23 None of the evidence which I have set out above reaches the level of addiction. Nor is there any suggestion in the evidence that the applicant was involved in the drug trade for purposes of funding his gambling. As the Crown submitted there is no persuasive evidence of a relationship between the offending and any gambling. In the absence of any evidence of any kind from the applicant in this regard, his Honour was not obliged to speculate about any such relationship. The evidence went no further than suggesting that the applicant chose to gamble money he had obtained as a lifestyle choice. 24 As his Honour said: "His criminal history bears out that he was a person who facilitated gambling by others and, whilst the police say that he gambled heavily at a club during the course of his criminal activity which gives rise to this offence, this does not necessarily mean that he had an addiction, simply that he had plenty of money with which to engage in an activity which he enjoyed." 25 His Honour was entitled to make that finding and there is no reason for this Court to review it. 26 There was no evidence with respect to gambling that could impinge upon his moral culpability or otherwise affect the assessment of the objective seriousness of the offence. There was no evidence of compulsion or obsession. 27 Mr A J Bellanto QC, who appeared for the applicant, submitted in oral submissions this morning that his Honour "was entitled" to take a further step and find that the applicant did have a gambling problem. To submit that his Honour "was entitled" to make a further finding is not a sufficient basis for this court to intervene. In my opinion, there was no evidence with respect to gambling that could impinge upon the applicant's moral culpability or otherwise affect the assessment of the objective seriousness of the offence. Specifically, there was no evidence of compulsion or of obsession. 28 In another case, the level of addiction may be found to be such that, on the basis of proper evidence of that addiction and of a direct link to the offending, this consideration will be relevant to the exercise of the sentencing discretion. (See eg R v Petrovic [1998] VSCA 95 and R v Cavallin (Victorian Court of Appeal, 24 July 1996, unreported) quoted in R v Molesworth [1999] NSWCCA 43 at [24]; R v Novak (1993) 69 A Crim R 145 at 148-149.) This is not such a case. 29 This ground should be rejected.
Ground Two 30 The applicant contends that the pre-sentence report referred to prior use of drugs and that it contained a 'suggestion' that there had recently been use of drugs. His Honour rejected the suggestion. His Honour held and I repeat: "this assertion is patent rubbish and I have no doubt that it was a deliberate lie". 31 His Honour was entitled to reject the particular statement upon which counsel for the applicant relied before him. In any event, as quoted above the pre-sentence report had also said: "Mr Martinelli stated that his only period of illicit drug use was for a 12 month period in 2003." 32 Furthermore, the agreed statements of facts included the following express statement, attributed to the applicant at the time of his arrest: "The offender stated that he was not a user of the drug."
This related to cocaine. 33 There was, in my opinion, no proper basis upon which his Honour could take into account evidence of drug use as affecting the objective seriousness of the offence with which the applicant was charged, or as affecting the moral culpability of his conduct in committing the offence. 34 This ground should be rejected.
Ground Three 35 The sentence imposed was a significant sentence. However, it was a sentence imposed by the sentencing judge in the overall context of a pattern of offending and, particularly in the context of the retail drug supply business that had been conducted by the applicant, on his own admission, for a significant period of time and on a significant scale. 36 The offences to be taken into account on the Form 1 entitled his Honour to add a factor to the admitted offences. The overall criminal history of the applicant indicated that personal deterrence was a matter entitled to weight. 37 For the reasons as set out above, the reliance in this Court on the alleged gambling addiction and the alleged personal drug use were not matters entitled to weight of any significant degree in the sentencing exercise, if any. As his Honour said, the only matter of a mitigating character was the plea of guilty for its utilitarian value. 38 His Honour assessed the offending in this case as being in the mid range, or higher, of offending of this character. This discretionary judgment was open to his Honour and there is no reason for this Court to interfere with it. His Honour clearly set out the relevant facts and articulated the weight he attributed to the full range of relevant matters. 39 As the Crown submitted, the facts of this case are reasonably similar to the facts in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, where the Court re-sentenced the offender to a total term of nine years and four months with a non parole period of seven years. In that case as in this there was a plea of guilty. 40 Furthermore, the organised nature of the business within which the particular act of supply occurred was similar. 41 None of the other cases referred to suggest that the sentence imposed was outside the range of the exercise of the sentencing discretion. 42 In my opinion, ground 3 should also be rejected. 43 Leave to appeal should be granted and the appeal dismissed. 44 McCLELLAN CJ at CL: I agree with the Chief Justice. 45 JOHNSON J: I also agree. 46 SPIGELMAN CJ: The order of the Court is as I have indicated. **********
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Martinelli
Regina
Leave to appeal granted; appeal dismissed. The District Court sentence remained undisturbed ([43], [46]).