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Supreme Court 12 December 2017

R v Martinez & Tortell

[2017] NSWSC 1659

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER RECKLESS WOUNDING IN COMPANY JOINT CRIMINAL ENTERPRISE

Citation: R v Martinez & Tortell [2017] NSWSC 1659
Court: Supreme Court of New South Wales
Date: 12 December 2017
Judge(s): Mathews AJ

Background

Two men, referred to here as the first offender and the second offender, were charged with the murder of a man (referred to in the judgment as the deceased) on Valentine's Day 2015 in the western Sydney suburb of Bossley Park. The pair had been close friends and were travelling together in a Lexus on the night in question. The deceased had previously been involved in a serious conflict with the first offender, including alleged involvement in drive-by shootings at the first offender's family home.

Events began when the first offender confronted the deceased in Dashmere Street and cut the fingers of the deceased's left hand with a knife. The deceased fled and was later collected by companions in a Camry. The Lexus followed the Camry through nearby streets, forced it to stop, and the deceased fled on foot through residential yards. His body was found shortly afterwards with extensive stab injuries.

At trial, both men were convicted of murder on the basis of a joint criminal enterprise. The jury found it was the second offender who had followed the deceased and inflicted the fatal stab wounds, while the first offender was also found guilty of reckless wounding in company arising from the earlier knife attack in Dashmere Street.

  • Whether each offender was guilty of murder on the basis of a joint criminal enterprise, even where only one physically inflicted the fatal injuries
  • Whether the jury's verdicts were supported by the evidence, including CCTV footage and witness accounts
  • What sentences were appropriate for murder and reckless wounding in company, having regard to the objective seriousness of the offences, the offenders' subjective circumstances, and the standard non-parole period
  • Whether special circumstances existed justifying a departure from the standard statutory ratio between head sentence and non-parole period

Decision

Mathews AJ found, on the evidence, that it was the second offender who followed the deceased after he fled the Camry and inflicted the fatal stab wounds. CCTV footage from a nearby intersection was central to this conclusion: it showed the Lexus reversing and turning before reaching the point where the second offender claimed to have been running, meaning he must have left Mulligan Street earlier, consistent with having followed the deceased through the residential yards. The second offender's evidence denying this was found to be irretrievably refuted by that footage.

Both offenders were sentenced for murder on the basis of a joint criminal enterprise. The first offender had been the instigator of the pursuit and the initial wounding; the second offender was the one who delivered the fatal injuries. Her Honour assessed the objective seriousness of the murder as above the mid-range, given the sustained nature of the pursuit and the deliberate blocking of the Camry to prevent the deceased from escaping.

In determining sentence, the court considered each offender's prior criminal history, age, background, prospects for rehabilitation, and the absence of remorse (neither had pleaded guilty). The court also took into account the victim impact statement read on behalf of the deceased's parents, expressing sincere sympathy to the family.

Her Honour accepted submissions from both offenders that special circumstances existed, given their relative youth and the importance of a longer parole period to support rehabilitation. However, the court noted that the overall length of the sentences would in any event produce lengthy parole periods, so the departure from the standard non-parole period ratio was minor in each case.

Orders Made

Wade Martinez (first offender):
- Reckless wounding in company: 1 year imprisonment, commencing 27 August 2015, expiring 26 August 2016
- Murder: non-parole period of 15 years and 9 months commencing 27 November 2015, expiring 26 August 2031; balance of term of 6 years, expiring 26 August 2037
- Total term: 22 years; earliest parole eligibility: 26 August 2031

Jake Tortell (second offender):
- Murder: non-parole period of 16 years commencing 27 August 2015, expiring 26 August 2031; balance of term of 6 years, expiring 26 August 2037
- Total term: 22 years; earliest parole eligibility: 26 August 2031

Both offenders were also warned of the operation of the Crimes (High Risk Offenders) Act 2006, which may allow applications for continued detention or extended supervision orders after sentence completion.

Key Takeaways

  • A participant in a joint criminal enterprise can be convicted of murder even where another member of the enterprise physically inflicted the fatal wounds, provided the fatal act fell within the scope of the enterprise to which each participant had agreed.
  • CCTV evidence played a decisive role in this case: the footage directly contradicted the second offender's account of his movements after the vehicles stopped, and the Supreme Court relied on it to conclude beyond doubt that he was the person who followed and fatally stabbed the deceased.
  • Where an offender has not pleaded guilty, no discount for utilitarian value attaches to the sentence, and the absence of remorse is a relevant consideration in assessing prospects of rehabilitation.
  • Special circumstances justifying a departure from the standard non-parole period ratio can arise from an offender's youth and the need for an extended period on parole to support rehabilitation, though the practical effect of such a departure may be limited where head sentences are already lengthy.
  • Both offenders were warned under the Crimes (High Risk Offenders) Act 2006 that an application for continued detention or an extended supervision order may be made after the conclusion of their sentences, a step the Supreme Court is required to take upon sentencing for certain serious offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Law Enforcement (Powers and Responsibility) Act 2002 (NSW)

Cases:
- Muldrock v R [2011] HCA 25
- Imbornone v R [2017] NSWCCA 144