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Supreme Court 7 May 2015

R v Martin

[2015] NSWSC 521

Homicide
CRIMINAL LAW SENTENCE MURDER NATURE AND SERIOUSNESS OF THE OFFENCE MORAL CULPABILITY AGGRAVATING FACTORS

Citation: R v Martin [2015] NSWSC 521
Court: Supreme Court of New South Wales
Date: 7 May 2015
Judge(s): Schmidt J

Background

On 6 September 2012, the offender killed a man at a remote property near Braidwood by striking him in the head with a concrete block weighing approximately 7.1 kilograms. The offender never denied causing the death but maintained throughout that he had acted in self-defence after the deceased threatened him with a shotgun. He offered to plead guilty to manslaughter on more than one occasion; those offers were not accepted by the Crown.

At trial in October 2014, the jury rejected both self-defence and provocation and returned a verdict of guilty of murder. The matter then came before Schmidt J for sentencing.

The contested factual issues at the sentencing hearing included whether the deceased had threatened the offender with a shotgun, the number of blows struck, the position of the deceased when struck, and whether there was any interval between blows. These findings were relevant to the assessment of moral culpability.

  • What sentence is appropriate for murder, having regard to all objective and subjective factors, the statutory maximum (life imprisonment), and the standard non-parole period of 20 years?
  • What factual findings should be made consistent with the jury's verdict, resolving disputed matters in accordance with the principles in R v Olbrich?
  • Whether the offence warranted the maximum sentence of life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether special circumstances existed to justify a departure from the statutory ratio between the non-parole period and the balance of term under s 44(2) of the Crimes (Sentencing Procedure) Act?

Decision

Schmidt J confirmed that the maximum sentence of life imprisonment was not warranted. The Crown did not seek to establish that the level of culpability was so extreme as to satisfy s 61(1) of the Crimes (Sentencing Procedure) Act, and the court accepted the parties' common position on that point.

The court applied the sentencing methodology of instinctive synthesis, as required by Markarian v The Queen (2005) 228 CLR 357. This involved identifying all relevant factors, including the gravity of the offence viewed objectively, moral culpability, aggravating and mitigating circumstances, personal circumstances, and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act. The standard non-parole period of 20 years for murder, representing the midpoint of objective seriousness, was treated as a significant reference point under Muldrock v The Queen (2011) 244 CLR 120.

The court found that the circumstances of the offence and the offender's overall position required a substantial custodial term. Factual disputes at the sentencing hearing were resolved in accordance with R v Olbrich: facts adverse to the offender required proof beyond reasonable doubt, while facts in his favour were assessed on the balance of probabilities.

On the question of special circumstances, the court was satisfied that the statutory ratio under s 44(2) would provide an appropriate period of supervision before sentence expiry, and no departure from that ratio was warranted. Sentencing statistics and comparative cases were considered but given little weight, consistent with the approach endorsed in Hili v R; Jones v R (2010) 242 CLR 520, which requires consistency in the application of principles rather than mathematical equivalence with other sentences.

Orders Made

  • The offender was convicted of the murder of the deceased.
  • Sentenced to 27 years imprisonment, commencing 6 September 2012 and expiring 5 September 2039.
  • Non-parole period of 20 years and 3 months, expiring 5 December 2032 (earliest eligible release date).
  • Balance of term of 6 years and 9 months, expiring 5 September 2039.

Key Takeaways

  • After a jury verdict of guilty, the sentencing court must adopt a view of the facts consistent with that verdict, resolving any reasonable doubt in favour of the offender, but is not required to take the view most favourable to the offender.
  • Under R v Olbrich, disputed facts may only be taken into account adversely to an offender if established beyond reasonable doubt; facts in the offender's favour need only be proved on the balance of probabilities.
  • Life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act is reserved for cases of extreme culpability, and the burden of establishing that threshold rests with the Crown.
  • Applying Hili v R; Jones v R, consistency in sentencing is achieved through principled application of relevant factors, not by mechanically aligning the sentence with numerical outcomes in other cases.
  • The standard non-parole period of 20 years for murder operates as a statutory reference point for offences at the midpoint of objective seriousness, and both it and the maximum penalty must be taken into account in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5F, 5G
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 54A, 54B, 61(1)
- Evidence Act 1995 (NSW), s 4

Cases:
- Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Dulihanty v R [2013] NSWCCA 275
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Dodd (1991) 57 A Crim R 349
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270