Martin Wade v R

Court of Criminal Appeal (NSW)|2023-03-13|Before: Gleeson JA, Wilson J, Davies J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to two counts; one of entering Mr Cork and Ms Carroll's house (sequence 2), and one of unlawfully detaining them (sequence 3), both with intent to commit a serious indictable offence, namely, intimidation. He was sentenced to an aggregate sentence of 6 years' imprisonment with a non-parole period of three years and seven months. The applicant was described as the "muscle" used to enforce a civil debt. On 12 December 2020, the applicant and a second male intruder entered Mr Cork and Ms Carroll's house to place pressure on Mr Cork and intimidate him on behalf of Mr Jou. Mr Jou claimed that Mr Cork owed his business $1,000,000. The couple were detained inside their home for between four and seven minutes. During this time, Ms Carroll's left index finger was cut by a machete, a packing knife was held to Mr Cork's neck, his Tag Heuer watch was stolen, and the intruders made serious threats to maim and kill, including if reported to police. The sentencing judge found that the objective seriousness of each offence fell below the mid-range. Her Honour's remarks on sentence considered the applicant's remorse, early guilty plea, low level of intellect, factors analogous to those discussed in Bugmy v The Queen (2013) 249 CLR 571 and the more onerous conditions of the Covid 19 pandemic. These subjective factors mitigated the applicant's sentence. Finally, her Honour made a finding of special circumstances and varied the statutory ratio to approximately 60%. The applicant sought leave to appeal against his sentence upon two grounds: Ground 1: Her Honour erred with respect to the indicative sentence imposed on sequence 3 and that this sentence caused error in the aggregate sentence. Ground 2: The sentence imposed was manifestly excessive. Relevantly, the indicative sentence for sequence 3 was imprisonment for 5 years and 6 months. The Court (per Davies J, Gleeson JA and Wilson J agreeing) held:

Judgment

GLEESON JA: I agree with Davies J.
DAVIES J: On 16 December 2021, Rongokarae Martin Wade ("the applicant") pleaded guilty at Central Local Court to two counts as follows: (1) Sequence 2: Entering a house with intent to commit a serious indictable offence therein, namely, intimidation in circumstances of aggravation, being armed with an offensive weapon, contrary to s 111(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years' imprisonment. There is no standard non-parole period. (2) Sequence 3: Detaining a person without their consent with the intention of committing a serious indictable offence, namely, intimidation, in circumstances of special aggravation, being in the company of another person and, at the time of the commission of the offence, actual bodily harm was occasioned to Lisa Carroll, contrary to s 86(3) of the Crimes Act. The maximum penalty for this offence is 25 years' imprisonment. There is no standard non-parole period.
On 22 July 2022, the applicant was sentenced by Judge Shead SC to an aggregate sentence of 6 years' imprisonment commencing 24 April 2021 and expiring 23 April 2027 with a non-parole period of three years and seven months expiring 23 November 2024.
The indicative sentence for sequence 2 was imprisonment for 2 years and 2 months and for sequence 3 was 5 years and 6 months.
The applicant now seeks leave to appeal against his sentence on the following two grounds: Ground 1: Her Honour erred with respect to the indicative sentence imposed on sequence 3 and that this sentence caused error in the aggregate sentence. Ground 2: The sentence imposed was manifestly excessive.

Background to the offending

The facts surrounding the background and the offending itself were well summarised by the sentencing judge in her Remarks on Sentence. The following is taken from her Honour's summary.
Martin Cork is a builder by trade and worked as a consultant for development companies. In January 2014, he began working with Michael Jou in his property consulting business. Originally, Mr Cork worked two days a week. After 12 months, Mr Cork began working in consulting full-time, until April 2019. During his time working with Mr Jou, Mr Cork was elevated to the role of general manager and ran multiple and large multi-million-dollar projects. Mr Jou had personally invested in some of those projects and lost money.
Around 2018, Mr Cork sold his business, Pacific Custom Homes Pty Ltd ('PCH'), to Mr Jou for $150,000. During that year, Mr Cork became concerned about Mr Jou's behaviour and decided he wanted to leave the company. In September 2018, Mr Cork sent an email indicating that he was terminating his engagement with PCH and Mr Jou.
Before leaving, Mr Cork presented a building project located in the Northern Beaches to PCH. PCH agreed to be the builder, while Mr Cork, on a private basis, organised finance. The building contract was signed in December 2018. During this time, Mr Cork organised to stay on with PCH until April 2019, when he could hand over to a new manager.
Mr Cork left PCH in April 2019. Immediately after leaving the company, Mr Jou began terminating staff. This, along with other problems, led to the company failing financially.
After he left, Mr Cork was informed by his solicitor and business partner that Mr Jou had attended his office and made several threats towards Mr Cork and his family. Mr Jou claimed a debt was owed to him by Mr Cork.
Meanwhile, PCH continued to build the project on the Northern Beaches. Mr Cork, through those financing him, paid PCH in advance every month. However, it was discovered that PCH was not forwarding the funds to independent contractors. As a result, Mr Cork began paying the contractors directly. After this, PCH failed to procure materials, which delayed the building project. As a result, on 28 February 2020, Mr Cork issued a notice to show cause for the termination of the contract. The show cause response was deemed inadequate, and consequently, Mr Cork took over the work and managed it on behalf of PCH in accordance with their building contract, using an independent surveyor.
On 16 September 2020, Mr Cork was informed that a man had attended the work site at the Northern Beaches project, looking for him. He was provided with the name Omar and a telephone number. Mr Cork contacted Omar, who was a debt collector, and agreed to meet him on 17 September 2020. They met that day and Mr Jou also attended the meeting. During the meeting, Mr Cork presented documents, and Mr Jou presented a one-page document claiming that Mr Cork owed PCH $1,000,000. No action was taken by Omar.

The offending

On the morning of 12 December 2020, Mr Cork and Ms Carroll were inside their home in the Northern Beaches. They were packing to leave for the South Coast. Around 11:30am, Mr Cork walked outside and saw two men on the same side of the road as his house. They almost brushed each other as he walked past. One of those men was the applicant.
About 15 minutes later, Mr Cork was inside his house where he grabbed a knife in order to flick the edge of packing tape to assist in packing a box for their trip. Ms Carroll had followed Mr Cork into the kitchen when both of them heard two loud bangs at the door.
Ms Carroll walked to the hallway and to the front door, while Mr Cork remained in the kitchen. The door was already open, as both Mr Cork and Ms Carroll had been walking out when packing the car. Ms Carroll saw the applicant standing at the door wearing a high-visibility jacket. She saw a second male intruder standing behind the applicant. The other intruder was wearing a hooded jumper, with the hood up.
Ms Carroll saw the applicant bring a black machete from behind his back. The applicant started to walk into the house and towards Ms Carroll, followed closely by the other intruder. Ms Carroll turned to flee. As she was doing so, the applicant, while holding the machete, grabbed her shirt on the left shoulder. Ms Carroll began to flail her arms trying to break the applicant's grip on her shirt. A struggle ensued and Ms Carroll's left index finger was cut by the machete, leading to bleeding, and causing a 1.2cm wound requiring four sutures. Forensic results from Ms Carroll's blouse returned a mixed DNA profile which could not exclude the applicant as a contributor.
The applicant grabbed Ms Carroll's right arm and led her into the kitchen. The other intruder entered the kitchen and confronted Mr Cork and told him to "put the knife down". The other intruder picked up the knife Mr Cork had been holding and held it against Mr Cork's neck. Mr Cork could feel the knife digging into his skin. The other intruder told Mr Cork to sit down.
Meanwhile, Ms Carroll was led by the applicant into the kitchen whilst he was holding onto the machete. Ms Carroll was told to "sit down" and sat opposite Mr Cork, who noticed that both intruders appeared nervous. The applicant's voice was shaky whilst the other intruder was physically shaking.
Mr Cork noticed that Ms Carroll's hand was bleeding. One of the intruders told Ms Carroll to place her hands flat on the kitchen bench and said, "I need to take a photo of you".
The following conversation took place: INTRUDER: You owe PCS money, you owe PCS money, $2,000,000. MR CORK: I don't know what you are talking about or PCS, I have never heard of them. INTRUDER: Yes you do, you owe them $1,200,000. MR CORK: Do you mean PCH Construction? INTRUDER: Yes that's them, see you know. MR CORK: There is a contractual legal matter in progress. I don't owe them any money.
Whilst this was happening, the knife was still being held to Mr Cork's neck. The other intruder told Mr Cork to remove his Tag Heuer watch. He did so and gave it to the intruder, who placed the watch, valued at $2,500, into his jumper pocket. The other intruder grabbed Mr Cork's phone from the kitchen bench.
The applicant demanded that Ms Carroll place her hands on the kitchen bench. One of the intruders said, "If you call the police after this, I am going to cut your wife's fingers off" and "If you don't pay the money, I'm going to cut your wife's fingers off". The applicant was still holding the machete up high at the time. Mr Cork tried to calm the situation and said, "Look, I know PCH, I will try and sort it". It appeared to Mr Cork that this calmed the situation down a bit.
Both intruders then told Mr Cork and Ms Carroll to move and guided them into the rear room. The other intruder was still holding the knife to Mr Cork's neck as he did so. As they were getting to the rear bedroom, Ms Carroll and the applicant got into a small scuffle, and the applicant held the machete towards her neck. Ms Carroll was told to enter the ensuite bathroom. The other intruder then pushed Mr Cork inside the ensuite.
The other intruder said, "If you call the cops or come after us, we will come back and kill you". The applicant said, "No hard feelings, I have a family too, I have to do what I have to do". The door was pulled shut and Mr Cork heard the intruders run from the premises. Upon leaving, the other intruder left Mr Cork's phone by the front door.
A neighbour saw the two intruders run from the home and into a white hatchback. A third person was in the car, in the front driver's seat waiting. As soon as the applicant and the other intruder got into the car, the driver immediately drove away at speed. Police were contacted and the location was declared a crime scene. Ms Carroll was taken to Mona Vale Hospital where she got sutures for the wound on her finger.
On 28 April 2021, a search warrant was conducted at the applicant's address, and he was arrested. The machete was never recovered, nor were the clothes worn by the intruders. The applicant participated in a recorded interviewed, in which he denied involvement in the offences.

Remarks on sentence

Her Honour held that an aggravating factor in respect of sequence 2 was that the offence was committed in company. In relation to sequence 3, her Honour held that it was an aggravating factor that the offence was committed in the home of the victim.
The sentencing judge accepted the submission of the Crown that the applicant was used as "muscle" and an instrument of fear and pressure in a civil dispute, and that he was present at the home of the victims to place pressure on Mr Cork and intimidate him on behalf of someone else.
The sentencing judge accepted the applicant's submission that the possession of the machete was consistent with an intention to intimidate, and that the injury was occasioned recklessly and not with a specific intention to cause a wound. Her Honour accepted that the period of detention was between four and seven minutes. Her Honour also accepted that the injury to Ms Carroll's finger was a relatively serious example of actual bodily harm.
After taking all of these matters into account, her Honour found that each offence fell below the mid-range, but was not at the low end of the range.
In relation to subjective matters, the sentencing judge said that she was guarded about the applicant's likelihood of reoffending and about his prospects of rehabilitation. Her Honour was satisfied that he had expressed remorse albeit, it was broad and limited. Her Honour accorded a full discount of 25% for an early plea.
The sentencing judge noted that the applicant had one prior conviction as a juvenile. He was convicted of wound person with intent to cause grievous bodily harm when he was aged 17 years. He was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 21 months. The sentencing judge held that this offending disentitled the applicant to leniency.
Her Honour found that the applicant's moral culpability was lessened by reason of the applicant's low level of intellect, and that factors analogous to those discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 36 which contributed to his lack of capacity to mature and to make rational decisions, mitigated the sentence.
Her Honour accepted the applicant's submission that his imprisonment was more onerous as a result of the Covid 19 pandemic, and that this was not an insignificant matter. Finally, her Honour made a finding of special circumstances, varying the statutory ratio to approximately 60%.

Ground 1: Her Honour erred with respect to the indicative sentence imposed on sequence 3 and that this sentence caused error in the aggregate sentence

Submissions

The applicant submitted that the objective criminality was found to lie below the mid-range. He submitted that the detaining aspect of the offending was for a relatively short period of time. Whilst the applicant conceded it involved the use of weapons, the victims were not bound. He submitted that the actual bodily harm occasioned to Ms Carroll should be described as lower level.
The applicant submitted that the undiscounted starting point of 7 years and 4 months, when considered against the statistics and the cases supplied, was one that would be associated with a significantly more serious offence, and not one moderated by the significant subjective findings made in the applicant's favour.
The applicant submitted that a consideration of the statistics would suggest that this case was in the high end of the middle range, if not the high range. That was said to be because the sentence fell within the top 20-30% of cases within the statistics.
The applicant submitted that, in circumstances where the offence in count 2 was found to be aggravated by taking place in the victim's home, there was an overlap between the two counts which required moderation in the aggregate sentence.
The Crown pointed to what was said by R A Hulme J in JM v R [2014] NSWCCA 297 at [40], that even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive.
The Crown, whilst accepting that the time of the detention was less than ten minutes, submitted, as the sentencing judge noted, that it was a "significant" period of time, the duration of which aggravated the offending. The Crown submitted that this finding was open to her Honour, and no submissions were made by the applicant to the contrary at the sentence proceedings.
The Crown submitted that the absence of an aggravating factor, that the victims were not bound, did not decrease the objective seriousness of the offence.
The Crown pointed to the sentencing judge's determination that the injury to Ms Carroll's finger was a relatively serious example of actual bodily harm. The injury was inflicted in the context of physical threats to harm with a machete, and the injury was followed by threats to cut off Ms Carroll's fingers off, threats to kill her, and by holding the machete towards her neck.
The Crown submitted that the statistics and comparable cases were of limited utility, particularly where an aggregate sentence was involved.
The Crown submitted that having regard to a number of matters, the offending was extremely serious. Those matters included that there were two victims; multiple assailants; the causing of serious actual bodily harm; serious threats to maim and kill, including if reported to police, threats which were intended to terrorise the victims; and other physical assaults.

Consideration

Although the ground is couched in terms of error in respect of the indicative sentence, the challenge here is, in effect, that the indicative sentence was manifestly excessive. There is no challenge to the finding that the objective seriousness fell below the mid-range but not at the low end of the range.
The principles relating to a determination of whether a sentence is manifestly excessive are well known, and are conveniently summarised in Clarke v R [2021] NSWCCA 236: [78] By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ); Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 ("Obeid") at [443] (per R A Hulme J, with whom Bathurst CJ, Leeming JA and Hamill J agreed). This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Markarian at [27]; Vuni v R [2006] NSWCCA 171 ("Vuni") at [33] (per Hoeben J (as his Honour then was), with Tobias JA and James J agreeing); Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman and R A Hulme JJ agreed). It is not to the point that the Court might have exercised the sentencing discretion differently: Obeid at [443]. [79] Intervention is not warranted simply because the sentence is "markedly different" from other sentences that had been imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 ("Wong") at [58]; Obeid at [443]. Rather, there must be some misapplication of principle, even though when and how is not apparent from the reasons given in the impugned judgment: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong at [58].
Concerning indicative sentences, R A Hulme J said in JM at [40]: The following further propositions emerge from the cases in relation to appellate review of aggregate sentencing exercises: … 11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55]. 12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254]. 13. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41].
In relation to the offence contrary to s 86 of the Crimes Act, in R v Speechley [2012] NSWCCA 130, Johnson J (with whom McClellan CJ at CL and Hammerschlag J agreed) said: [54] The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person: R v Newell at [32]; R v Falls [2004] NSWCCA 335 at [42]; R v Burton at [95]; Jeffries v R at 511 [79]. [55] Factors which bear upon an assessment of the seriousness of a basic offence under s 86(1) include the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention, although the nature of the advantage that the offender sought to obtain is not conclusive as to the seriousness of the offence: R v Newell at [32].
In relation to "the nature of the advantage that the offender sought to obtain", in R v Newell [2004] NSWCCA 183, Howie J said (Bell and Hislop JJ agreeing): [32] …The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence. In particular, simply because the section makes reference to one specific type of advantage, that is ransom, it does not follow that the presence or absence of that particular type of advantage is decisive in a determination of the seriousness of the particular offence before the court. In any event, I am not persuaded that, before an offence can come within the most serious category of an offence falling within the scope of the section, the detention must be for the purpose of ransom.
The difficulties of using sentencing statistics in determining appropriate sentences have been highlighted in a number of cases (e.g. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59]). The particular difficulty of doing so in relation to offences against s 86 of the Crimes Act, is highlighted by what Howie J said in Newell at [43]: The Court has been referred to statistical information, notwithstanding that the applicant's solicitor appreciates its limited value. Statistical information may have value in an appropriate case to indicate a range of sentences for offences where there is a predictable similarity in the conduct amounting to the offence. I doubt that offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance. But even if a range could be established, it does not follow that a sentence for a particular offence or offender has to fall within that range. It is merely a sounding board upon which a particular sentence may be judged. In this case there is nothing in the material that makes this particular sentence ring untrue.
Those remarks were adopted by Johnson J in Speechley at [53].
In my opinion, the indicative sentence in respect of sequence 3 is not manifestly excessive, for the following reasons.
The maximum penalty for this offence is 25 years' imprisonment.
Statistics for non-parole periods in respect of offences against s 111(2) and s 86(3) together with the public defender's cases in relation to those sections were provided to the sentencing judge and to this Court. Counsel for the applicant accepted in this Court that none of the cases was comparable. In the light of what was said by Howie J in Newell at [43], that is not surprising.
Although the sentencing judge found that the objective seriousness was below the mid-range, it was nevertheless a serious example of an offence against s 86(3). Two weapons were employed, albeit one of them was obtained by one of the intruders at the premises. One of the victims was injured by the machete brought to the premises by the applicant. The sentencing judge found that the injury to Ms Carroll's finger was a relatively serious example of actual bodily harm. The statement provided by Ms Carroll to the sentencing judge was that her left index was disfigured, still had a numb sensation and did not bend all the way in.
The terror that must have been felt by the two victims would have been considerable. Having already had her finger cut by the machete, Ms Carroll was told to put her hands on the kitchen bench and was threatened with having her fingers chopped off by that machete. Mr Cork's expensive watch was taken, and it is clear that the intruders intended to steal Mr Cork's phone. Mr Cork had a knife held to his neck for almost the whole time the applicant and the other offender were in the house. The whole encounter may only have taken a relatively short time, but the threats, the violence and the robbery were significant aspects of the offence.
The whole occurrence took place in the home of Mr Cork and Ms Carroll, which was an aggravating factor. The Victim Impact Statements attest to the ongoing effects of what amounted to a home invasion, including the sale of that house.
It is of some significance that the applicant and the co-offender were, as the sentencing judge described them, "muscle" to enforce what they understood was a civil debt. The offending here was quite unlike many cases involving offending contrary to s 86, where the offenders in those other cases had their own grievance against the victims, whether involving money, drugs or some affront. Contract killers are regarded as being in the worst category of murder. Contract enforcers, such as the applicant, should be viewed with considerable disapproval by the courts, such disapproval being measured by the sentence imposed.
The sentencing judge took into account, appropriately, the applicant's subjective case.
In all of the circumstances, it does not seem to me that a notional starting point of 7 years and 4 months, although stern, was outside the range of her Honour's discretion as an indicative sentence for that offence.
I would reject ground 1.

Ground 2: The sentence imposed was manifestly excessive.

Submissions

The applicant's written submissions made clear that success on ground 2 was largely dependent on success with ground 1. The applicant accepted that although the indicative sentence for sequence 2 was at the high end of the range he could not submit that it was outside the range.
In the applicant's written submissions the following matters were identified as being matters which ought to have moderated the aggregate sentence "to a more significant level": the pleas of guilty, the age of the applicant, the physical health of the applicant, his low intellect, mental health and Bugmy background, the favourable response to supervision and custody, his need for supervision in the community, and the harshness of his incarceration by reason of the Covid 19 pandemic.

Consideration

For the reasons given in relation to ground 1, I do not consider that the indicative sentence for sequence 3 was manifestly excessive. As noted, the applicant did not submit that the indicative sentence for sequence 2 was outside the range. The sentencing judge notionally accumulated the two sentences by only six months on the indicative sentence for sequence 3. It is difficult to see, therefore, how the aggregate sentence of six years with a non-parole period of three years and seven months (a generous reduction of the statutory ratio to a little under 60%), can result in a manifestly excessive sentence.
All of the matters identified in the applicant's submissions were taken into account by the sentencing judge. The submission was couched in terms that suggested greater weight should have been given to the applicant's subjective case. What weight is given to any matter in the sentencing process is a matter entirely for the sentencing judge.
I would reject ground 2.

Conclusion

I propose the following orders:
Leave to appeal.
Dismiss the appeal.
WILSON J: I agree with Davies J.

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Crimes Act 1900(NSW)ss 86, 111

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