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Supreme Court 12 October 2011

R v David MARTIN

[2011] NSWSC 1189

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER RECKLESS WOUNDING COMMON ASSAULT STANDARD NON

Citation: R v David Martin [2011] NSWSC 1189
Court: Supreme Court of New South Wales
Date: 12 October 2011
Judge(s): Kirby J

Background

Following a trial, the offender was convicted by jury of the murder of one man and the reckless wounding of another outside the Bateau Bay Hotel in October 2007. Both attacks occurred in a hotel car park in the early hours of the morning, during a chaotic scene as patrons were leaving. The offender had exited a vehicle carrying a steel implement, later assessed to be a Phillips Head screwdriver, and attacked two separate victims in quick succession.

The murder victim died rapidly after the implement penetrated eight centimetres into his chest, reaching his heart and aorta. The reckless wounding victim sustained superficial puncture wounds to his neck and suffered no lasting disability. Neither victim had provoked or spoken to the offender before the attacks. The offender also pleaded guilty to a separate common assault committed a short time later in a nearby street on a pedestrian who had stepped into the road.

Sentencing submissions for the offender proceeded before Kirby J on 30 September 2011.

  • How the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999 applied to the murder conviction, in light of the High Court's decision in Muldrock v R [2011] HCA 39 modifying the earlier approach in R v Way
  • Whether the murder offence fell above, below, or at the midpoint of objective seriousness for the purposes of the standard non-parole period
  • What weight to give to the offender's subjective circumstances, including a troubled background, substance abuse, prior criminal history, and indications of future risk
  • The use of a weapon as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentences for reckless wounding and common assault should run concurrently with, or be accumulated upon, the murder sentence

Decision

Kirby J applied the post-Muldrock approach to standard non-parole periods, treating the 20-year standard non-parole period for murder as a "guideline" or "guidepost" rather than a mandatory reference point to be mechanically applied. The court assessed the objective seriousness of the murder as above the midpoint, noting that the attack was entirely unprovoked, involved a penetrating implement used with moderate to severe force, and occurred as part of a sequence of violence against multiple victims in a public space.

The court found that the use of a weapon was a statutory aggravating factor, and that nothing in the offender's subjective circumstances was sufficient to reduce the sentence significantly. The offender had a prior criminal history, a history of drug and alcohol misuse, and a psychological profile suggesting ongoing risk. There was no remorse demonstrated and the offender had contested the charges throughout trial.

On the question of accumulation, Kirby J ordered partial accumulation of the reckless wounding sentence onto the murder sentence. The court reasoned that a fully concurrent sentence for the wounding would not adequately reflect the additional criminality involved in attacking a separate, unprovoked victim. The common assault sentence in Rays Road was ordered to run concurrently, on the basis that it was arguably a continuation of the same episode of anger.

A finding of special circumstances was made, but only to a limited degree, to reflect the modest adjustment arising from accumulation. The court noted the offender would require supervision and treatment for drug, alcohol, and anger management issues upon release.

Orders Made

  • Count 1 (reckless wounding): Non-parole period of 18 months commencing 9 May 2009, expiring 8 November 2010; additional term of 6 months expiring 8 May 2011; total term of 2 years
  • Count 6 (common assault): Fixed term of 6 months commencing 9 May 2009, concurrent with count 1
  • Count 2 (murder): Non-parole period of 15 years commencing 9 May 2010, expiring 8 May 2025; additional term of 5 years expiring 8 May 2030
  • Total: Non-parole period of 16 years; total sentence of 21 years
  • Eligible for parole on 8 May 2025; sentence expires 8 May 2030

Key Takeaways

  • Following Muldrock v R, the Supreme Court applied the standard non-parole period for murder as a legislative guidepost rather than a rigid benchmark, assessing objective seriousness independently before arriving at the appropriate sentence.
  • An entirely unprovoked attack on multiple victims in a public place, using a penetrating implement with significant force, placed the murder above the midpoint of objective seriousness for the purposes of the standard non-parole period.
  • Where a single episode involves violence against more than one victim, full concurrency of sentences may not adequately reflect the totality of the offender's criminality; partial accumulation can be appropriate to honour the principle of totality.
  • A concurrent sentence was ordered for the common assault committed shortly after the main incident, the court treating it as a continuation of the same episode rather than a wholly separate occasion of offending.
  • Special circumstances findings under the Crimes (Sentencing Procedure) Act 1999 need not produce a substantial adjustment to the non-parole period where the additional term already provides sufficient time for the offender to undergo rehabilitation and supervision.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 54A(2) and Division 1A Table (standard non-parole periods)
- Crimes Act 1900 (NSW)

Cases
- Muldrock v R [2011] HCA 39
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Makarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v McCullough [2009] NSWCCA 94; (2009) 194 A Crim R 439
- R v Whitmore [2009] NSWSC 520
- R v Previtera (1997) 94 A Crim R 76
- R v XX [2009] NSWCCA 115