Martin v R [2012] NZCA 572 (6 December 2012)

Last Updated: 13 December 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA822/2011 [2012] NZCA 572

BETWEEN BRENT MARTIN Appellant

AND THE QUEEN Respondent

Hearing: 22 November 2012

Court: Wild, Chisholm and Courtney JJ

Counsel: R M Mansfield for Appellant M J Lillico for Respondent

Judgment: 6 December 2012 at 12 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.
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REASONS OF THE COURT
(Given by Wild J)

[1] Mr Martin appeals against a sentence of four years imprisonment imposed on him in the District Court at Auckland on 22 November 2011 by Judge Wilson QC.[1] He contends it was manifestly excessive.
[2] On indictment Mr Martin had pleaded guilty to charges of supplying methamphetamine, possession of the precursor substance pseudoephedrine with intent to supply, and unlawful possession of a firearm. He was discharged under s 347 of the Crimes Act 1961 on some other, related charges.
[3] The charges resulted from a search by the police of the vehicle in which Mr Martin was travelling after they stopped it in Hamilton on the night of 13 December 2010. There was a warrant out for Mr Martin’s arrest. He gave the police a false name and details. Once the police had established his correct identity they arrested him. He advised the police that he had smoked cannabis earlier that evening, resulting in the police searching the vehicle.
[4] In various places in the car the police found several grams of methamphetamine, two sets of electronic scales with visible crystal residue on the weighing plate, about 224 grams of ContacNT and a 9 mm Lugar pistol. They also found some cannabis and drug paraphernalia.
[5] On searching Mr Martin the police found $450 cash, a 9 mm cartridge and two cellphones containing about 195 incoming and outgoing text messages relating to methamphetamine.
[6] At the time Mr Martin was on bail in respect of a driving while disqualified charge.
[7] In his sentencing remarks the Judge noted a remorseful letter which Mr Martin had written from Mt Eden Prison about a month earlier. In that letter Mr Martin had referred to the forthcoming birth of his first grandchild and stated that he “realised that I’m at a time in my life that I must change for the better”. He said that he had taken steps toward drug rehabilitation and been assessed and accepted into a drug recovery programme (at Odyssey House). The Judge regarded that letter as partly offsetting “the rather disappointing aspects of the pre-sentence report”.[2] That report stated that Mr Martin demonstrated no insight into his drug offending, and was adamant that he was not supplying methamphetamine and that the loaded pistol belonged to his associate. The report stated also that Mr Martin failed to acknowledge any victims of his drug dealing other than his children and his mother. It assessed his motivation to rehabilitate himself as low to medium, and his risk of reoffending and harming others as high.
[8] The Judge placed the offending at the top of band 1 or the bottom of band 2 of R v Fatu,[3] and took a starting point of three years imprisonment. He uplifted that to five years imprisonment to take account of the precursor substance and pistol charges, and to reflect Mr Martin’s previous convictions. There were 12 for misuse of drugs matters, and also charges of possession of firearms and ammunition dating from 20 and 10 years earlier.
[9] The Judge then allowed Mr Martin a discount of one year to reflect his guilty pleas, and the expressions of remorse in the letter he had written from prison. Thus, the Judge arrived at the sentence of four years imprisonment under appeal.
[10] For Mr Martin, Mr Mansfield did not challenge the Judge’s starting point of three years imprisonment. He did challenge the uplift of two years for the additional offences and to reflect the previous convictions, and the discount of one year for remorse and guilty pleas.
[11] We think the uplift was open to the Judge. The possession of almost one quarter of a kilogram of ContacNT was a significant offence in itself. That precursor substance had a value of around $12,000. The Judge was also entitled to take a serious view of the possession of the Lugar pistol. As the Judge noted, it was not in a fireable condition, although the police armourer was able to make it work. The Judge noted that the pistol was loaded with blank rounds and could at least be used to intimidate people.
[12] Further, Mr Martin’s 12 drug related convictions date back to 1992 and include one for manufacturing methamphetamine, in 2002.
[13] Mr Lillico reminded us that this offending was committed by Mr Martin while he was on bail. In fixing the two year uplift to the sentence the Judge did not specifically mention that, but he could well have factored it in.
[14] Mr Martin pleaded guilty post-indictment, not at the earliest opportunity. Given the seriousness of the offending, and the somewhat mixed messages to the Judge about remorse, we do not think the one year discount was anything other than appropriate.
[15] For those reasons, we consider the sentence of four years imprisonment was well open to the Judge. We therefore dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Martin DC Auckland CRI-2010-019-10329, 22 November 2011.
[2] At [5].
[3] R v Fatu [2006] 2 NZLR 72 (CA).