Martinez v R

Court of Criminal Appeal (NSW)|2015-02-05|Before: Gleeson JA, Hulme J, Campbell J

Solicitors: Jones Rolfe Rudd Solicitor for Public Prosecutions File Number(s): 2011/137576 Decision under appeal Court or tribunal: District Court Date of Decision: 06 March 2014 Before: Blackmore SC DCJ File Number(s): 2011/137576

Judgment

GLEESON JA: I agree with R A Hulme J.
R A HULME J: Shawn Luis Martinez (the applicant) was sentenced by his Honour Judge Blackmore SC in the District Court on 6 March 2014 for an offence of break, enter and commit serious indictable offence, namely intentionally damage property by means of fire.
The offence is contrary to s 112(1)(a) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 14 years.
The sentence imposed was imprisonment for 3 years 10 months, with a non-parole period of 2 years, commencing on 6 March 2013.

Facts

There was agreement as to the facts of the matter. The applicant and an associate, Marko Kovac, approached Aymen Nachar and asked him to burn down a jewellery design and wholesale business in Paddington in return for payment of $1500. The business was on the first floor of a terrace house which had a hairdressing business on the ground floor. It was surrounded by domestic premises.
Nachar approached Mohamad Ayad and asked him to help. At a subsequent meeting of all four men there was a discussion about how the job was to be done and a description was provided of the premises.
The applicant purchased a car on 12 October 2010 for use in the commission of the arson. He provided false details in a finance application (the Form 1 offence).
On 20 December 2010 the applicant, Kovac and Nachar went to a hardware store where items were purchased to facilitate the offence (a crow bar, a ladder and some gloves). That night, the applicant picked up Nachar and Ayad from Nachar's home and drove towards Paddington. He stopped to purchase a container of petrol. They met Kovac near the target premises and swapped cars. The applicant covered the number plates of the car and drove Nachar and Ayad past the premises and told them where he would be waiting for them while they did the job.
Nachar and Ayad approached the premises on foot and, using the ladder and crow bar, broke in, spread the petrol and ignited it. They then fled to the waiting car and the applicant drove them to Nachar's home at Warwick Farm. He gave Nachar $1450 as payment for the job.
A call to the emergency services number was made at 2.53am on 21 December 2010 and the Darlinghurst Fire Brigade attended and extinguished the fire. The fire had caused damage worth a little over $150,000.
The applicant was arrested on 28 April 2011 after he made incriminating statements in a covertly recorded conversation with Kovac. He declined to be interviewed. A little over a year later, after he had been committed for trial, he provided police with a typed statement in which he claimed that he had been approached to arrange the arson attack in return for $8000 by a man named Isaac Levy who had an association with the premises.
The learned judge accepted the agreed fact that the applicant's motive was financial gain which he considered to be an aggravating factor. The fact that he engaged others to carry out the offence was also considered to be relevant to the seriousness of the offence. He took into account that considerable damage was caused and it was another aggravating factor that the fire had the potential to spread to nearby properties.

The applicant's personal circumstances

The applicant was aged 28 at the time of the offence. The judge noted that he came from "a relatively privileged background", although the applicant described his upbringing as difficult in that he felt pressured and judged by his parents. He said he was often left in care and claims to have been abused in that context.
He attended university after school but did not complete any course. He had a meagre employment history. He had used drugs. He had been diagnosed with schizophrenia but the judge noted that Dr Jonathon Adams, forensic psychiatrist, had doubted this, preferring a diagnosis of post-traumatic stress disorder relating to early childhood trauma. This was a condition amenable to psychological counselling. The judge determined that with the benefit of such counselling there were good prospects of rehabilitation. It was in relation to this issue that the judge found special circumstances and reduced the proportion of the sentence represented by the non-parole period.
The applicant's prior criminal history comprised an offence of destroying or damaging property for which he was fined in 2002. There are also some subsequent offences which will be mentioned in more detail when dealing with the first ground of appeal.
The applicant had provided information to police which they regarded as of "intelligence" value. He had placed himself in some danger as a result of this (the judge accepted that he had been assaulted) and had been held in protective custody, thereby limiting the availability of such services as are available in the custodial environment.
Blackmore DCJ had earlier sentenced Nachar and Ayad. From starting points of 5 years and 4 years 9 months before discounting for their pleas and assistance he imposed sentences of 3 years with a non-parole period of 1 year 8 months (Nachar) and 3 years with a non-parole period of 1 year 6 months (Ayad). After referring to the sentencing of these men, his Honour indicated that the appropriate starting point for the applicant's sentence would be 5 years 6 months. After allowing 30 per cent for the plea of guilty and assistance he imposed the sentence earlier mentioned, namely 3 years 10 months with a non-parole period of 2 years.

Ground 1 - The learned sentencing judge failed to take into account all pre-sentence custody served for the Break and Enter charge and backdate the sentence accordingly

By s 24(a) of the Crimes (Sentencing Procedure) Act a court must take into account "any time for which the offender has been held in custody in relation to the offence", and by s 47(3), in deciding whether to backdate the commencement of a sentence, such time must be taken into account. Backdating a sentence to allow credit for pre-sentence custody is the usual and preferable course: Wiggins v R [2010] NSWCCA 30 at [2] (McClellan CJ at CL) and [3]-[8] (Howie J).
The applicant was in custody for a considerable time prior to sentence but part of it related to his bail refusal for other offences as well.
On 27 June 2012, whilst on bail for the present matter, the applicant was charged with possessing and using a travel document not issued to himself (the Commonwealth offences). On 9 September 2012 he was charged with three offences of dishonestly obtaining a financial advantage by deception (the State offences). These offences all occurred on 25 - 27 June 2012. The applicant had taken $46,000 from his brother's bank account and flown to China using his brother's passport. He was refused entry and was returned to Australia. These offences occurred whilst the applicant was on very strict bail on the arson charge.
These charges were finalised prior to sentencing for the present matter and resulted in recognizances for the Commonwealth offences and good behaviour bonds for the State offences.
The following table sets out the pre-sentence charging and custodial chronology. 28.4.11 Arrest, charge and refusal of bail for arson offence 9.6.11 Released on bail for arson offence 27.6.12 Arrest, charge and refusal of bail for Commonwealth offences 28.6.12 Bail refused in respect of arson offence 9.9.12 Arrest, charge and refusal of bail for State offences 15.5.13 Sentenced for Commonwealth and State offences (released on recognizance and bonds) but remained bail refused for arson offence 6.3.14 Sentenced for arson offence

The following propositions emerge: The applicant was in custody for 1 month 13 days from arrest until he was released on bail for the arson offence (28.4.11 - 9.6.11). Following his return to custody after being charged with the Commonwealth offences he remained in custody for 1 year 8 months 8 days prior to being sentenced for the arson offence (27.6.12 - 6.3.14). His custody referrable to the Commonwealth and State offences prior to sentencing for them amounted to 10 months 19 days (27.6.12 - 15.5.13). His custody solely referrable to the arson offence in respect of the period 28 April 2011 to 9 June 2011 (1 month 13 days) and 15 May 2013 to 6 March 2014 (9 months 20 days) amounted to 11 months 3 days. His custody whilst bail refused for the arson offence, partially coinciding with being bail refused for the Commonwealth and State offences, amounted to 1 year 9 months 20 days (28.4.11 - 9.6.11 and 28.6.12 - 6.3.14).
The applicant contends that the judge should have allowed him the benefit of the entire period in which he had been bail refused in respect of the arson offence (1 year 9 months 20 days). Instead, his Honour took into account that the applicant had been simultaneously bail refused in respect of the Commonwealth and State offences for part of that period. He said: "I will make a further allowance on sentence based on the principles of totality, such as I will backdate the sentence to be applied in his case. In that regard I will commence the sentence 12 months before the final date of sentence to reflect that backdating."
The applicant submitted that the time in which he had been held in custody for the Commonwealth and State offences was not taken into account by the Local Court when he was sentenced and placed on bonds and recognizances for those matters. As a result, all of the custody should have been taken into account in the District Court.
I do not accept this submission. The transcript of the Local Court proceedings was tendered by senior counsel for the applicant at the sentence hearing. It shows that Longley LCM first determined applications under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and s 20BQ of the Crimes Act 1914 (Cth) for dismissal and conditional release in respect of the Commonwealth and State charges on account of the applicant's mental condition. His Honour refused the applications.
During the course of submissions on the applications it was noted that the applicant had spent some 11 months in custody, bail refused, in respect of those charges and the arson charge. A relevant factor in relation to the applications was the likely outcome of proceedings whereby the magistrate indicated tentative agreement with the proposition that the pre-sentence custody would leave alternatives to a fulltime custodial sentence open to be imposed. This was said in the context of the magistrate also regarding the offences objectively as "serious matters".
Following the dismissal of the applications the magistrate noted that if the applicant had been dealt with 11 months earlier he would potentially have received a sentence of less than 12 months. He asked the applicant's solicitor to obtain instructions about the plea to be entered, indicating further that he had in mind the imposition of bonds and recognizances. Pleas of guilty were then entered and such orders were made. The magistrate gave short reasons, including: "He has spent as I say since 27 June in custody".
There is force in the Crown's submission in this Court that the imposition of bonds for such serious matters in the Local Court would have been "extraordinarily lenient" if the pre-sentence custody was not taken into account.
It is also pertinent to note that this Court is not concerned with the correctness of the approach taken by the Magistrate in taking into account pre sentence custody (see, for example, R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361 at [24]-[32]. This Court is only concerned with the fact that the magistrate proceeded as he did.
In the District Court, senior counsel for the applicant first indicated that he was seeking the full benefit of the time his client had been in custody bail refused for the arson offence. He later conceded that in some fashion the time the applicant had been in custody was a factor taken into account by the magistrate in imposing the sentences that he did. There was then the following exchange: "HIS HONOUR: I think it's reasonably clear that his Honour made a pragmatic decision. … he has or had already spent as [much?] time as he would spend in custody so I'll put him on a bond." LLOYD: That largely would appear also because of his mental health position at the time. We don't have the reports that were tendered to his Honour but his Honour says in the end he clearly is ill and I want to make it a condition of a bond that he attend upon a doctor. One thing we do know is he was never released because he was bail refused on these offences so his mental condition loomed large there. I do submit your Honour would take it at least partly into account when assessing an appropriate sentence and backdating any sentence, not fully, but partly." (Emphasis added)
In the course of submissions by the prosecutor, it was conceded that some allowance should be made but it was submitted that the applicant should not receive the full benefit of the pre-sentence custody. The judge indicated that he did not understand the applicant's counsel to be seeking the full benefit but said that there was "an issue about totality". The prosecutor responded to the effect that in that case, "we're probably not at odds". It seems she was right in that in his submissions in reply, senior counsel for the applicant said nothing more on the subject.
The applicant would have twice received an allowance on sentence if the judge had taken into account all of the pre-sentence custody when the magistrate had taken into account that part of it while he was bail refused for the Commonwealth and State matters.
There is no merit in the applicant pursuing this contention on appeal which is contrary to the position he adopted in the court below: see, for example, Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81].
If this was the only ground of appeal I would refuse leave to appeal.

Ground 2 - The learned sentencing judge erred in finding that the sentence was in breach of a section 9 good behaviour bond

In the course of his sentencing remarks the judge said: "The offender was bound by the terms of a good behaviour bond at the time that he committed the offence; that of itself is a serious aggravating circumstance with respect to his offending."
The Crown concedes that the applicant was not on a bond and that this statement by the judge was erroneous. Accordingly, leave to appeal should be allowed. The Crown contends, however, that no lesser sentence is warranted: s 6(3) of the Criminal Appeal Act 1912 (NSW).
The applicant argues that the error would have affected the overall sentence imposed and so he should be re-sentenced to something less. This is not the issue. The point is that once error is established it becomes this Court's duty to re-sentence unless in the exercise of its discretion it concludes that no sentence whether more or less severe is warranted and should have been passed: Kentwell v The Queen [2014] HCA 37 at [35].
I have earlier outlined the facts of the offence and the applicant's personal circumstances. Amongst the congeries of matters relevant to sentence he had a number of favourable matters to be brought to account. However, the offence was one of significant objective seriousness. There was planning and premeditation with the engagement of others and the acquisition of equipment in order to carry out a serious act of arson. It resulted in considerable property damage and had the potential to cause far greater harm in a residential area.
The starting points for the sentences that were imposed upon the co-offenders Nachar and Ayad (5 years and 4 years 9 months respectively) were not suggested by the applicant to be excessive. Having regard to the seriousness of the offence, the more senior role the applicant played in it, and the fact that a Form 1 offence was required to be taken into account, a lesser starting point than 5 years 6 months cannot be justified. There was no argument directed to the adequacy of the level of discounting allowed for the applicant's plea of guilty and assistance. Accordingly, I am satisfied that no lesser sentence than the 3 years 10 months imprisonment imposed in the District Court is warranted.
The applicant maintained the point raised under ground 1 that there should be a backdating of the sentence by a further 9 months and 20 days. This must be rejected for the reasons given earlier.

Orders

I propose the following orders:
Leave to appeal against sentence granted.
Appeal dismissed.
CAMPBELL J: I agree with R A Hulme J.

Amendments 06 February 2015 - inserted tables to paragraphs 11 and 12 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2015

Mental Health (Forensic Provisions) Act 1990(NSW)

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