Successful Appeal Against Sentence

28/09/2023 The Hon Neil F Costa, Justin Rodriguez

On 27 September 2023, the Court of Appeal for Gibraltar found in favour of Mr Jordan Martinez (‘Mr Martinez’) in his appeal against the sentence handed down in the Supreme Court on 23 May 2023.

Mr Martinez’s sentence was reduced from 14 months to 7 months’ imprisonment.

Following a guilty plea at the Supreme Court of Gibraltar for one count of assault occasioning actual bodily harm (the ‘Offence’), Mr Martinez, represented by Isolas LLP Partner Neil Costa (‘Mr Costa’) and Senior Associate Justin Rodriguez (‘Mr Rodriguez’), was sentenced to 18 months’ imprisonment reduced to 14 months’ imprisonment (60.8 weeks) on account of the early guilty plea (the ‘Sentence’). On the advice of Mr Costa, Mr Martinez decided to appeal the Sentence to the Court of Appeal for Gibraltar (the ‘Court‘).

During Mr Costa’s oral submissions before the Court, he argued that the sentence of the Supreme Court should be quashed on the following four grounds, namely that:

(a) the Sentence was manifestly excessive (the ‘First Ground’);
(b) the Supreme Court Judge’s (the ‘Learned Judge’) application of the law was wrong in principle, which is not discussed due to insufficient space to cover the technical complexity of the legal arguments;
(c) the Learned Judge failed to have regard or sufficient regard to applicable case-law (the ‘Third Ground’); and
(d) the Learned Judge failed to have regard or sufficient regard to relevant mitigating circumstances (the ‘Fourth Ground’).

The First Ground

Mr Costa submitted that the Learned Judge erred in his consideration and application of the Sentencing Council’s Guidelines for England and Wales in respect of the offence of assault occasioning actual bodily harm (the ‘Sentencing Guidelines‘).

In terms of culpability, Mr Costa stated that the Learned Judge correctly noted that: ‘the starting point for… [the] offence is 36 weeks’ custody with a range of high-level community order to 1 year 6 months’ and that the Learned Judge erred in determining that the starting point for the Offence was one of 18 months’ imprisonment. Such a starting point, Mr Costa argued, fell at the very top end of the custody range within the relevant culpability category and was manifestly excessive in the light of the facts, especially when the facts were considered in the light of the applicable domestic case-law.

In relation to harm, Mr Costa submitted that this was an offence that fell squarely within category 3 for harm or, at its highest, at the lower end of category 2.

In essence, Mr Costa argued that the Learned Judge erred in finding that the Offence was so serious, and that Mr Martinez’s culpability and the harm caused to the victim were so great, that a starting point of 18 months’ imprisonment was the lowest possible applicable starting point for an offence of this nature.

The Third Ground

Additionally, Mr Costa argued that the Learned Judge failed to have regard or sufficient regard to applicable case-law both in respect of categorising the culpability and the harm arising from the Offence.

Mr Costa referred the Court to three Gibraltar Supreme Court cases in support of his legal arguments, namely the Supreme Court cases of Lagares, Parody, and Bolanos. Mr Costa submitted that the facts as to the harm caused to the victims in those cases were similar to the facts in the instant case. Mr Costa highlighted that in the previous Supreme Court cases, the relevant judges had decided to impose compensation and community orders. Mr Costa additionally submitted that in sentencing Mr Martinez to 14 months’ imprisonment in respect of the Offence, the Learned Judge passed a sentence of a much greater severity than the Supreme Court had previously passed in respect of similar harm.

Mr Costa argued that whereas the Learned Judge may not have erred in stating that he was not bound by previous Supreme Court determinations, the Learned Judge was not entirely free to disregard previous Supreme Court decisions. Mr Costa highlighted that criminal barristers consider case-law partly to advise their clients as to a likely sentence by comparing the circumstances of their client’s case with similar cases.

Mr Costa stressed to the Court that if superior court judges have established that certain facts are properly categorised in one category or another as relating to culpability and harm, it is reasonable for criminal defendants to expect that similar facts will be categorised in similar ways irrespective of the Supreme Court Justice not least in order to achieve fairness and consistency in sentencing. Mr Costa concluded the third ground of appeal by highlighting that consistency in sentencing legal principles is even more important to persons who can potentially be deprived of their liberty.

The Fourth Ground

In turning to his final ground of appeal, Mr Costa argued that the Learned Judge failed to have regard or to have sufficient regard to relevant mitigating circumstances in this case. Mr Costa provided the Court with the relevant catalogue of mitigating circumstances applicable in respect of Mr Martinez. Mr Costa also took the opportunity to reiterate to the Court the recommendations of the Probation Officer in the case who stated that it would be counterproductive to impose a custodial sentence on Mr Martinez. The Probation Officer recommended an unpaid work requirement and a supervision requirement to be issued as well as stating that a suspended custodial sentence was appropriate in the circumstances of the case.

In sum, Mr Costa had argued that the correct sentence was 7 months (28 weeks).

Their Lordships retired to consider their judgment. On returning to Court, their Lordships noted that they would issue their reasons for their decision in due course. We will be sure to provide another press note when the reasons are handed down.

The Court:
(a) allowed Mr Martinez’s appeal;

(b) quashed the Sentence;

(c) re-sentenced Mr Martinez to a total of 28 weeks’ custody in respect of the Offence from a previous sentence of 60.8 weeks: put differently, a 53% reduction in sentence; and

(d) held that given the time that Mr Martinez had already served, he would not return to custody.

Link to judgement can be found here .

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