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7
Court of Criminal Appeal 11 February 2022

Martinez v R

[2022] NSWCCA 12

Assault & violenceHomicide
CRIMINAL LAW SENTENCE APPEAL MANSLAUGHTER JOINT CRIMINAL ENTERPRISE VICTIM STABBED CHALLENGE TO FINDING

Citation: Martinez v R [2022] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 11 February 2022
Judge(s): Macfarlan JA, Brereton JA, Beech-Jones CJ at CL

Background

The applicant was convicted of manslaughter following a 2019 retrial (his original murder conviction having been quashed on appeal). The offence arose from the death of a 20-year-old man who was stabbed nine times in the backyard of a Bossley Park property on 14 February 2015. The applicant and a co-offender, who were jointly tried, had chased the deceased through suburban streets before the fatal stabbing occurred.

The sentencing judge could not determine beyond reasonable doubt which of the two offenders had inflicted the fatal wounds. He did find, however, that the knife used to kill the deceased was one the applicant had taken from a house earlier that evening. The applicant was sentenced to 10 years and 6 months imprisonment with a non-parole period of 7 years and 7 months, commencing 27 August 2015.

The applicant sought leave to appeal on multiple grounds, contending that the sentence was affected by several errors. The co-offender, who was younger and had no prior criminal record, received a shorter sentence of 8 years and 5 months.

  • Whether the sentencing judge erred in finding that the knife taken by the applicant was the weapon used to kill the deceased
  • Whether the sentencing judge should have found, on the balance of probabilities, that the applicant was not the one who delivered the fatal stab wounds, and whether failing to make that finding was an error
  • Whether the sentencing judge erred in treating the offence as partly committed in a public place, given the stabbing occurred in a backyard
  • Whether a discount for pre-trial offers to plead guilty to manslaughter was adequate, and whether the sentencing judge erred by taking into account the applicant's decision to plead not guilty before the jury
  • Whether the sentencing judge erred in declining to find special circumstances justifying an adjustment to the standard non-parole period ratio

Decision

Finding about the knife: The Court rejected the challenge to the sentencing judge's finding that the knife the applicant obtained was used in the killing. The sentencing judge had the advantage of observing witnesses at trial, and the Court of Criminal Appeal found no error in that factual determination.

Finding on who stabbed the deceased: The Court acknowledged that a finding on the balance of probabilities that the applicant did not personally deliver the fatal wounds could have been made, and that such a finding would have assisted the applicant. However, the absence of that finding did not constitute legal error. The sentencing judge was not obliged to make it, and declining to do so fell within the legitimate exercise of sentencing discretion.

Public place finding: The Court found no error in treating the offence as having been partly committed in a public place. The pursuit of the deceased had occurred through public streets before he ultimately fled into a backyard. The nature and context of the overall criminal conduct supported the characterisation.

Plea discount (Ground 4 — the ground that succeeded): The Court found that the sentencing judge erred by taking into account the applicant's decision to contest the charges before the jury at the 2019 trial when assessing his culpability or character. This was an impermissible consideration. The sentencing judge had also allowed only a 5% discount for the pre-trial plea offers, which the Court of Criminal Appeal considered insufficient given what was known about the length of the trial. A discount of 10% was substituted.

Special circumstances: Brereton JA, in the minority, would have found special circumstances based on the applicant's relative youth (21 at the time of the offence), his first period in custody, the length of the sentence, and rehabilitation prospects. The majority declined to disturb the sentencing judge's discretionary refusal to find special circumstances, having regard to the applicant's criminal antecedents and the objective seriousness of the offence.

On resentencing, the Court reduced the head sentence to 9 years and 3 months (after a 10% plea discount on a base sentence of 10 years and 3 months), with a non-parole period of 6 years and 11 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Johnson J on 20 March 2020 set aside
  • Applicant sentenced to imprisonment for 9 years and 3 months, commencing 27 August 2015 and expiring 26 November 2024, with a non-parole period of 6 years and 11 months, with earliest parole eligibility of 26 July 2022
  • Applicant's solicitor directed to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offence

Key Takeaways

  • A sentencing judge is not obliged to make a finding, on the balance of probabilities, that an offender did not personally inflict the fatal act in a joint criminal enterprise case, even where such a finding was open and would have assisted the offender. The absence of that finding does not constitute appealable error.

  • Where a sentencing judge impermissibly takes into account an offender's decision to contest the charges before a jury, that constitutes an error capable of vitiating the sentence and warranting resentencing.

  • The Court of Criminal Appeal confirmed that an offer to plead guilty to a lesser charge made before a substantial trial carries weight when calculating a plea discount, and a 5% discount was held insufficient in the circumstances here. The discount was increased to 10%.

  • An offence committed during a sustained public pursuit may properly be characterised as partly committed in a public place, even where the final act of violence occurred on private property.

  • Parity between co-offenders remains a relevant sentencing consideration, but differences in age, criminal history, and the objective gravity of individual conduct can justify a meaningfully higher sentence for one co-offender over another.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Martinez v R; Tortell v R [2019] NSWCCA 153
- R v Martinez; R v Tortell (No 6) [2020] NSWSC 267
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Cardoso (2003) 137 A Crim R 535; [2003] NSWCCA 15
- Bell v R [2019] NSWCCA 271
- Craft v R [2021] NSWCCA 131
- Magro v R [2020] NSWCCA 25
- Gibson v Regina [2019] NSWCCA 221
- Borg v R [2019] NSWCCA 129
- Hallak v R [2014] NSWCCA 48
- Hordern v R [2019] NSWCCA 138
- R v JW [2010] NSWCCA 49
- R v Wright [2009] NSWCCA 3
- R v O'Donoghue (1988) 34 A Crim R 397