Martinez v R

Solicitors: McGowan Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/251812 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: R v Martinez; R v Tortell (No 6) [2020] NSWSC 267 Date of Decision: 20 March 2020 Before: Johnson J File Number(s): 2015/251812

Judgment

1. MACFARLAN JA: I agree with Beech-Jones CJ at CL.
2. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Beech-Jones CJ at CL. I agree with his Honour that the appeal succeeds on Ground 4, and not otherwise, for the reasons his Honour gives. I also agree with the sentence that his Honour would impose on resentencing, save that for my part I would find special circumstances founded on the offender's relative youth at the time of the offence (21), that it is his first time in custody, the lengthy time he would otherwise spend in custody, and the desirability of extended supervision on his release to maximise his prospects of successful rehabilitation. As on that question I am in the minority, it is unnecessary to specify the non-parole period that I would fix.
3. BEECH-JONES CJ at CL: This is an application for leave to appeal from a manslaughter sentence imposed after a trial. For the reasons that follow I would uphold one of the grounds of the application and resentence the applicant.
4. In March and April 2017, the applicant, Wade Martinez ("Martinez"), stood trial on an indictment that charged him, inter alia, with the murder of Gewargis Garmo on 14 February 2015 at Bossley Park (the "2017 trial"). He was found guilty of murder (and another charge). His convictions were quashed on appeal (Martinez v R; Tortell v R [2019] NSWCCA 153). In late 2019, he was retried on an indictment that included a count of murder and reckless wounding of Mr Garmo earlier on the same night (the "2019 trial"). He was jointly tried with Jake Tortell ("Tortell") who was also charged with murder. On 17 December 2019, the jury found both offenders not guilty of murder but guilty of manslaughter. Martinez was found not guilty of reckless wounding.
5. On 20 March 2020, Johnson J sentenced Martinez to imprisonment for 10 years and 6 months with a non-parole period of 7 years and 7 months (R v Martinez; R v Tortell (No 6) [2020] NSWSC 267). His sentence was fixed to commence on 27 August 2015 and is due to expire on 26 February 2026. His non‑parole period is due to expire on 26 March 2023. At the same time, Tortell was sentenced to imprisonment for 8 years and 5 months, with a non-parole period of 5 years and 6 months. His sentence was fixed to commence on the same day as Martinez's sentence. His sentence will expire on 26 January 2024 and he became eligible for release on parole on 27 February 2021.
6. As explained below, each of Martinez and Tortell received a discount of 5% on their sentences on account of the fact that each offered to plead guilty to manslaughter just prior to the 2019 trial commencing. Prior to the allowance for that discount Martinez's head sentence was 11 years imprisonment and Tortell's sentence was 8 years and 10 months imprisonment.

The Offence

1. The following precis of the factual background to the death of Mr Garmo is taken from the findings of the sentencing judge.
2. As at 14 February 2015, Martinez was 21 years old and Tortell was 18 years and 10 months old. Mr Garmo was 20 years of age. They had all attended the same high school although they were not in the same year.
3. The sentencing judge noted that the 2019 trial was conducted on the basis that the police believed that Mr Garmo had committed or caused to be committed violent acts towards Martinez's family home similar to drive by shooting incidents that occurred on 22 May 2014 and 31 May 2014 (at [26] to [27]). However, his Honour noted that Martinez did not give evidence at the trial so that it is not known "what the problems were between Mr Garmo and himself in 2014 and 2015" although it was accepted that there were "problems" (at [28] and [33]). One of the witnesses, Jade McVerry, told the jury that they 'both didn't like each other" and recounted Martinez asking her where Garmo "hangs out" (at [33] to [34]).
4. The primary judge noted that evidence was adduced at the 2019 trial that Martinez was not co-operative with the police inquiries into the drive by shootings. His Honour described a Crown submission that "Martinez determined to take care of the matter himself" as having considerable substance. His Honour found that there was "no evidence of any prior adverse history as between Mr Garmo and … Tortell" (at [52]).
5. In what his Honour described as a "chance encounter", at around 10.00pm on 14 February 2015 Mr Garmo and his girlfriend, Nicole David, spoke to Ms McVerry, her sister, Krystal, and another person outside the home of Ms McVerry's mother, Tracey, in Dashmere Street, Bossley Park. At that time Martinez and Tortell were inside the house visiting Tracey McVerry.
6. According to the sentencing judge, Martinez observed Mr Garmo outside the house. Martinez picked up a kitchen knife from the house and walked outside. An altercation occurred on the footpath "in which Mr Garmo received a cut to the hand" (at [47]). This gave rise to the charge of reckless wounding of which Martinez was found not guilty. His Honour observed that the issues which arose on the reckless wounding charge involved a question whether the injury caused to Mr Garmo occurred accidentally in the struggle and, if the wounding was caused recklessly by Martinez, whether the Crown had excluded self-defence having regard to the prior history between Martinez and Mr Garmo arising from the shootings at the Martinez family home. His Honour found that he was "unable to conclude upon which basis the jury returned a verdict of not guilty on this count" (at [48]).
7. His Honour found that "[Mr] Garmo [then] ran away from the scene of the altercation in Dashmere Street, with his bleeding hand leaving a blood trail which revealed the route which he took. Mr Garmo ran through various locations in Dashmere Street, Rimfire Close, Restwell Road and Mimosa Road, Bossley Park, moving largely through backyards and crossing fences" (at [50]). His Honour found that Mr Garmo was fearful and was fleeing from Martinez and Tortell. His Honour also found that Mr Garmo did not possess any weapon (at [50]).
8. Martinez and Tortell chased Mr Garmo in Tortell's black Lexus motor vehicle. At some point after 10.07pm, Jade McVerry, her sister, Ms David and another person collected Mr Garmo in a Camry motor vehicle but they were pursued by Tortell and Martinez at high speed (at [57]). His Honour found that "Martinez (who was driving the Lexus) was angry and agitated and intended to do harm to Mr Garmo" and "Tortell shared his intention, as well, with the two men agreeing to do physical harm to Mr Garmo short of grievous bodily harm" (at [58]).
9. The two vehicles came to a halt near the intersection of Mulligan and Barrington Streets, Bossley Park. Mr Garmo alighted from the Toyota Camry and ran down Mulligan Street towards Lofty Crescent, Bossley Park. Both Martinez and Tortell left the black Lexus, "but … Martinez returned a very short time later as the Lexus was rolling towards the front fence of a house in Mulligan Street" (at [60]). Martinez applied the brakes and remained in the Lexus. Tortell continued to chase Mr Garmo on foot towards Lofty Crescent. His Honour found that Martinez drove the black Lexus along Mulligan Street and turned right into Gambier Street which led a short distance away to Garnet Street, Bossley Park (at [61]).
10. Mr Garmo climbed a fence and moved through premises arriving in the rear yard of 8 Garnet Street, Bossley Park (at [64]). At the side of 8 Garnet Street in the vicinity of a gate, Mr Garmo was stabbed repeatedly with some nine wounds being inflicted to his chest and back. His Honour noted that the evidence of a forensic pathologist, Professor Johan Duflou, was that "a wound in the vicinity of the heart was the likely fatal injury and that it would have likely caused a quick death" (at [65]). His Honour found that Mr Garmo had died by 10.12pm (at [71]).
11. As it is the focus of one of the grounds of the application it is necessary to set out the findings His Honour made concerning the knife that was used to kill Mr Garmo: "62 The evidence does not establish the location, at this stage of the narrative, of the kitchen knife which the Offender Martinez took from Tracy McVerry's house in Dashmere Street. The knife remained with the Offender Martinez after Mr Garmo fled the scene. I am satisfied that the knife was in the black Lexus when the Offenders were in that vehicle pursuing Mr Garmo. Either the knife remained with the Offender Martinez in the black Lexus or was carried by the Offender Tortell as he chased Mr Garmo. However, the evidence does not permit a finding that the Offender Tortell was carrying the knife. This is one of the features of the case which made it difficult at the trial to find, to the criminal standard, which one of the Offenders stabbed Mr Garmo. ... 66 Professor Duflou expressed an opinion concerning the weapon used to inflict the fatal injuries. He pointed to features of some of the wounds which suggested that a two-edged knife was used, but did not exclude the use of a one-sided kitchen knife as the weapon. It was the evidence of Tracy McVerry that the knife taken from her kitchen was a single-edged kitchen knife. 67 The evidence at the trial pointed to one knife only as being in the possession of the Offender Martinez or the Offender Tortell, being the knife which the Offender Martinez took from Tracy McVerry's house when he approached Mr Garmo in the street. The evidence did not identify with any clarity where that knife was from the time that Mr Garmo ran from the scene until the time of his death. That knife was never located by police. 68 I am satisfied to the criminal standard that the kitchen knife was either in the possession of the Offender Tortell or was in the black Lexus driven by the Offender Martinez at the time when those two men moved after Mr Garmo, initially with both men in the Lexus, and then with the Offender Tortell on foot and the Offender Martinez in the vehicle. Although the evidence of Professor Duflou leaves open the possibility of a different knife being used to kill Mr Garmo, or perhaps two knives being used for that purpose, I do not consider that such a finding should be made. … 70 However, having regard to the verdicts of the jury as explained earlier in these remarks, I am unable to say which of the Offenders inflicted the fatal injuries to Mr Garmo. As mentioned earlier, the Offenders are entitled to be sentenced upon the basis that a finding to the criminal standard cannot be made as to which one of them it was who inflicted these injuries." (emphasis added)
12. Both Martinez and Tortell left the scene in the black Lexus (at [75]). At around 3.00pm on 15 February 2015, police attended Tortell's premises and observed a scratch on his neck. On 27 August 2015, both Martinez and Tortell were arrested and charged with the murder of Mr Garmo.
13. His Honour summarised the events and findings concerning the death of Mr Garmo as follows (at [82]): "The following conclusions should be expressed with respect to the events surrounding the killing of Mr Garmo: (a) the evidence revealed a prior history as between the Offender Martinez and Mr Garmo pointing to animosity as between the two men as at 14 February 2015; (b) the evidence did not reveal any history of animosity as between the Offender Tortell and Mr Garmo; (c) having encountered Mr Garmo by chance on the evening of 14 February 2015, the Offender Martinez took the opportunity to pursue and punish Mr Garmo arising from the grievance which existed between the two men; (d) the Offender Tortell was assisting and supporting the Offender Martinez on the evening of 14 February 2015 because of his friendship with the Offender Martinez - there is no direct evidence of information which he had been given by the Offender Martinez concerning Mr Garmo (whether on prior occasions or on that evening), although I infer that the Offender Tortell had some knowledge of this which serves to explain why he would support his friend in the criminal agreement to cause harm to Mr Garmo; (e) once Mr Garmo ran away along Dashmere Street with an injured hand, he was retreating from the Offenders and was not seeking any confrontation with them - there was no evidence that Mr Garmo was armed, with the earlier meeting between the men in Dashmere Street being a chance one in otherwise innocuous circumstances; (f) the Offenders took off after Mr Garmo, effectively in hot pursuit, travelling in the Lexus and then following the Camry once they observed that Mr Garmo had got into that vehicle - the Offenders had in mind causing further injury to Mr Garmo and were pursuing him for that purpose at a time when they had available the knife which the Offender Martinez took from Tracy McVerry's house - no aspect of this pursuit involved an element of self-defence with the intention being to punish Mr Garmo - Mr Garmo was injured and was fleeing the scene in a terrified state of mind; (g) having regard to the verdicts of the jury, the agreement between the Offenders as part of their joint criminal enterprise was to cause further injury to Mr Garmo falling short of really serious bodily injury or grievous bodily harm; (h) the Offenders did not terminate their chase of Mr Garmo, even though he disappeared from view as he ran through nearby backyards to escape the Offenders - they maintained their persistent pursuit, with the Offender Tortell following him on foot and the Offender Martinez following in the Lexus vehicle; (i) one or other of the Offenders reached Mr Garmo and inflicted the fatal injuries to him with the Offender Tortell having followed on foot and the Offender Martinez in the Lexus travelling the short distance along Mulligan Street, then Gambier Street into Garnet Street, Bossley Park; (j) however, for reasons already explained, a finding cannot be made to the criminal standard as to which of the Offenders stabbed Mr Garmo to death; (k) after Mr Garmo was killed, the two Offenders travelled together in the Lexus vehicle for a considerable period before returning to their homes; (l) the knife used to inflict the fatal injuries has never been found."

The Sentencing Judgment

1. In the sentencing judgment, his Honour addressed the circumstances of the offending. The relevant findings are noted above. As for the remaining matters that affect the sentencing discretion, I note six matters.
2. First his Honour summarised Martinez's subjective case. As at the date of sentencing he was 26 years old. He had convictions as a juvenile for aggravated robbery and assaulting an officer and resisting an officer in the execution of his duty. He also had convictions as an adult for intimidating a police officer and again assaulting an officer and resisting an officer in the execution of his duty. His Honour noted that Martinez provided a psychiatrist with a "history of a troubled upbringing in a household marked by parental alcoholism and domestic violence" (at [89]). His Honour said he gave this account "some weight" although that weight was limited as it was not the subject of evidence by Martinez or independently corroborated. His Honour noted that Martinez had completed various TAFE courses but also had a poor history of disciplinary offences in jail (at [90] to [91]).
3. Second, his Honour summarised Tortell's subjective case. As noted, he was 18 years old at the time of the offence. He was 24 at the time of sentencing. He had no prior criminal history (at [94]). Like Martinez, Tortell had completed a number of TAFE certificates but also had a poor history of disciplinary offences in jail (at [97] to [99]).
4. Third, his Honour assessed the objective gravity of the offences. As it is of some significance to the grounds of the application it is appropriate to set out his Honour's reasons in some detail. His Honour noted that each offender was involved in the "resolute pursuit" of Mr Garmo and had agreed to cause physical harm to him falling short of grievous bodily harm (at [108]). The critical findings of his Honour were as follows (at [105] and [114] to [115]): "105 I approach an assessment of the objective gravity of these offences upon the basis that it was the Offender Martinez who had a prior history of animosity with Mr Garmo which serves to explain why it was that the injured Mr Garmo was pursued by the Offenders through the streets of Bossley Park on the night of 14 February 2015. It was the Offender Martinez who possessed the motive to cause harm to Mr Garmo which serves to explain the pursuit carried out with violence in mind. The Offender Martinez took opportunistic advantage to pursue and punish Mr Garmo, who was in no position to put up any effective resistance. The Offender Martinez wished to take matters into his own hands and punish Mr Garmo arising from the unexplained grievance that existed between them. The motive of the Offender Martinez serves to elevate the objective gravity of his offence and his moral culpability … ... 114 I am satisfied that the Offender Martinez is to be regarded as the more culpable of the Offenders. His offence is of a higher degree of objective gravity and reflects greater moral culpability than that of the Offender Tortell. 115 I bear in mind, as well, the youth of the Offender Tortell who was 18 years old and with no prior involvement with the criminal justice system. He was swept up in these sudden and unexpected events because of his friendship with the Offender Martinez. He acted in this way reflecting the immaturity of an 18-year-old although persisting in what was grave criminal conduct for which he is to be punished for the criminal death of a man …"
5. These findings are to be considered in the context of his Honour's finding that "a finding cannot be made to the criminal standard as to which of the Offenders stabbed Mr Garmo to death" (at [82(j)]; see above at [19]).
6. Fourth, his Honour assessed the benefit that each of Martinez and Tortell were entitled to from an offer they each made to plead guilty to manslaughter prior to the 2019 trial. On 6 September 2019 they offered to plead guilty to manslaughter "subject to the drafting of mutually agreeable facts" (at [119]). This offer was rejected by the Crown on 16 October 2019. Each of them repeated the offer on 8 November 2019 being the last working day prior to the trial. The offer was made on the basis that each participated in an "extended joint criminal enterprise" to assault Mr Garmo but neither could be identified as the assailant who stabbed him. Leaving aside any debate about whether this case involved a joint criminal enterprise or an extended joint criminal enterprise, this offer reflected the jury's ultimate verdict. The offer was rejected on the same day.
7. The trial commenced on 11 November 2019. His Honour found that a "modest discount should be applied in each case to reflect the utilitarian value of the offer to plead guilty upon the basis identified by [this Court] and found by the jury" (at [128]). His Honour applied a discount of 5% to each offender (at [130]). This aspect of his Honour's reasons is the subject of ground 4.
8. Fifth, his Honour addressed each offender's contrition and prospects of rehabilitation. His Honour found that neither of them had demonstrated any contrition or remorse (at [131]). However, his Honour found that Tortell had good prospects of rehabilitation and represented a low risk of reoffending (at [133]). With Martinez, his Honour found that a "more guarded approach should be adopted" although he had "made constructive use of his time in custody". His Honour found that "he has reasonable prospects of rehabilitation and [represented] a moderate risk of reoffending" (at [136]).
9. Sixth, his Honour did not make a finding that "special circumstances" exist in relation to Martinez (at [145]) (Crimes (Sentencing Procedure) Act 1999; the "Sentencing Act", s 44(2)). However, having regard to Tortell's "stronger subjective case" his Honour made a finding of special circumstances (at [146]). This aspect of his Honour's reasons is the subject of ground 5.
10. At this point, it should be noted that the ratio of Martinez's non‑parole period to his total sentence was 72% whereas, in light of the failure to make a finding of special circumstances, s 44(2) of the Sentencing Act required that it not be less than 75%. In imposing sentence, his Honour referred to making allowance for "some rounding" (at [145]). However, assuming that his Honour was rounding to months, then the non-parole period should have been 7 years and 10 months and not 7 years and 7 months. Not surprisingly, no issue was taken by Martinez on appeal with this possible error. In light of the conclusion on ground 4, it is not necessary to consider this further.

Ground 1: Knife Used to Inflict the Fatal Wound

1. Ground 1 of the application contends that his Honour erred in finding that the knife taken by Martinez "from the Dashmere residence … was that used to inflict the fatal wounds on the deceased".
2. The reference to the "Dashmere residence" is to Tracey McVerry's house. This ground seeks to challenge the emphasised finding in the last sentence of [69] of the sentencing judgment set out above namely that "I am satisfied to the criminal standard that it was the kitchen knife taken from Tracy McVerry's house that was used to kill Mr Garmo".
3. The evidence necessary to address the challenge to this finding was given by Tracey McVerry, Jade McVerry, Nicole David, and Professor Duflou.
4. Both Tracey and Jade McVerry described the knife taken by Martinez from Tracey McVerry's home as a large kitchen knife with a wide blade at the base that narrowed at the end and had one sharp edge. Martinez's submissions contrasted this with Professor Duflou's evidence that, having considered the wounds to Mr Garmo's body, "a more likely possibility, now I use those words carefully, … as more likely you would be looking at a double-edged knife rather a single-edged knife". The submissions also point to the following answer he gave in cross‑examination: "Q. Is this the case, that, for example, a fairly robust large kitchen knife used to cut vegetables such as pumpkin and potatoes and that sort of thing, and is about 20 to 30cm long, would be unlikely to exhibit pointed ends on both sides, is that right? A. I think it would be unlikely repeatedly. There could certainly be some wounds which could look like that but what was noticeable in this case was that every one of the wounds where I could assess the ends, they were all sharp on both ends."
5. This answer must be read with Professor Duflou's affirmation in re-examination that he "couldn't rule out" the use of a single‑edged knife.
6. In her evidence, Nicole David said that, after the car she was travelling in with Jade McVerry and others collected Mr Garmo, they were followed by the Lexus driven by Martinez with Tortell sitting in a passenger seat. She said she had a clear view of Martinez through the rear window and she could see a knife in Martinez's right hand. She maintained that recollection in cross‑examination. In chief, Ms David said that when Mr Garmo left Ms McVerry's car in Mulligan Street she saw Martinez follow him although he returned to the Lexus to apply its handbrake. In cross‑examination, she agreed that at the 2017 trial she had said that she saw Martinez leave the Lexus vehicle in Mulligan Street carrying a knife although she had not referred to that in the statements she made to the police.
7. Martinez's submissions noted that Ms David's evidence that Martinez followed Mr Garmo on foot after applying the handbrake was contrary to the other witnesses and was described as "clearly mistaken" by the Crown Prosecutor in his closing address. They also pointed to a passage in her evidence in which she agreed that, at the 2017 trial, she had accepted that she had become obsessed with the belief that Martinez killed Mr Garmo and that belief had caused her "to visualise Mr Martinez on that night, to have a knife in his hand".
8. Martinez submitted that this Court should accept that there were "reasons to doubt the reliability" of Ms David's evidence. It was submitted that no finding could be made to the criminal standard that Martinez was in possession of the knife as he drove the Lexus when pursuing Mr Garmo and it was "not reasonably open" to conclude that that knife was used to kill Mr Garmo. The submissions referred to the evidence of Professor Duflou. It was contended that it was a reasonable possibility that Tortell had a knife concealed on him, that, even if the kitchen knife was in the Lexus at some point, there was a reasonable possibility that it remained there and that it was otherwise not necessary for this finding to be made. That said at the hearing of the application, Senior Counsel for Martinez, Ms Bashir SC, expressly disclaimed any contention that the making of the finding about the knife involved a denial of procedural fairness. The topic was clearly raised with counsel for Martinez at the sentence hearing.
9. The Crown submitted that his Honour's finding was justified by the logic and timing of events. It contended that, given the animosity between Martinez and Mr Garmo, it was unlikely that Martinez would discard the knife after their initial confrontation in the street and the events took place over such a short period of time that it was unlikely that another knife would have been readily available to either Martinez or Tortell.
10. This ground of appeal potentially raises an issue about the appropriate standard of review of findings of fact made by a sentencing judge, a topic which has been the subject of differing views in this Court (see R v O'Donoghue (1988) 34 A Crim R 397; "O'Donoghue"; Hordern v R [2019] NSWCCA 138; "Hordern" at [20]; Gibson v Regina [2019] NSWCCA 221). Martinez's submissions did not seek to address that debate but instead contended that his Honour's findings were not "open" or "were not reasonably open" which I understand to involve an acceptance of the approach in O'Donoghue. However, regardless of which approach is adopted I do not accept that this ground is made out. On either the O'Donoghue or Hordern approach, deference must be given to the assessment of the trial judge who had the advantage of observing the witnesses give their evidence. In this case that advantage was considerable. It placed his Honour in a far superior position to this Court in assessing the degree of uncertainty associated with the expression of Professor Duflou's opinion and the reliability of Ms David's evidence. In relation to the latter the fact that Ms David accepted that she had developed an "obsession" with the image of Martinez with a knife in his hand is not surprising given that the events concerned the stabbing death of her partner. His Honour was in a far better position than this Court to consider whether that obsession undermined the reliability of her evidence especially so much of it that concerned observing Martinez driving the Lexus car with a knife in his hand.
11. His Honour's reasons for making the impugned finding are set out above. His Honour's finding that, after the confrontation in the street, the knife was in the Lexus as Martinez and Tortell chased Mr Garmo was supported by Ms David's evidence and the matters noted by the Crown. Once the knife was in the car then, as noted by the Crown, the speed of events and the absence of any evidence concerning any other knife supported his Honour's finding that that knife was used in the stabbing. Professor Duflou's evidence was equivocal. The "reasonable possibilities" identified in Martinez's submissions were not supported by any evidence other than perhaps Professor Duflou's suggestion that it was a "more likely possibility" that a double-edged knife was used. The challenge to the impugned finding fails. On either the O'Donoghue or Hordern approach, the finding was well open to the sentencing judge.
12. The submissions in support of this ground also debated whether the finding that the knife taken from Tracy McVerry's house was the knife used to kill Mr Garmo was truly adverse to Martinez. Martinez's submissions contended that the fact that his Honour found that the knife he took from McVerry's house was used in the killing "heightened [his] role" whereas the Crown contended that, as his Honour did not make a finding as to who stabbed Mr Tortell, this ground went nowhere. In light of my conclusion that it was open to his Honour to make the impugned finding it is not necessary to resolve that debate.
13. I would dismiss ground 1.

Ground 2: Who Stabbed the Deceased?

1. Ground 2 of the application contends that the sentencing judge "erred in failing to make a positive finding in mitigation in the sentencing of [Martinez] (and not in the case of Tortell) that Tortell on balance inflicted the fatal injuries".
2. In the extract from the sentencing judgment set out above, his Honour concluded that a "finding cannot be made to the criminal standard as to which of the offenders stabbed Mr Garmo to death". The reference to the "criminal standard" was a reference to proof beyond reasonable doubt reflecting the statement in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 ("Olbrich") at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ that findings of fact on sentence adverse to an offender must be made beyond reasonable doubt whereas findings of fact favourable to an offender need only be made on the balance of probabilities.
3. This ground of appeal and the submissions in support of it do not challenge his Honour's failure to make a finding to the "criminal standard" as to which of the two offenders stabbed Mr Garmo. Instead, they contend that, only in Martinez's case, a finding should have been made on the balance of probabilities that Tortell stabbed him with the logical consequence that Martinez did not. As formulated, this ground raises three related issues, namely whether such a finding was sought, whether if made it would be "in favour" of Martinez (Olbrich at [27]) and, if so, should it have been made (or should it be made now).
4. The first issue arises because I do not accept that a sentencing judge would be under any obligation to make a finding of the kind suggested without, at the very least, an express submission being made to that effect. In this case, the written submissions of counsel for Martinez on sentence urged the sentencing judge to find that "Tortell inflicted the wounds that killed the deceased". During oral submissions on sentence, his Honour raised with counsel the contention that the jury's verdict suggested that they were not satisfied beyond reasonable doubt that either Martinez or Tortell inflicted the stab wounds (as in that case one of them would have been found guilty of murder) and that there were factual matters pointing in different directions. His Honour observed that "one cannot proceed to sentence on the basis that the evidence suggests that it was one or the other because I can only make that finding to the criminal standard". In response, counsel for Martinez submitted that "I make those submissions really on behalf of my client to mitigate his sentence". Nothing further was said on the topic.
5. On this application it was contended that counsel's reference to the finding "mitigat[ing] his [client's] sentence" was in effect a submission that his Honour should positively find on the balance of probabilities that Tortell (and not Martinez) inflicted the stab wounds on Mr Garmo. I am not convinced that is the case in that one would have expected counsel to respond to his Honour's observation by contending that, even though the jury may not have been satisfied beyond reasonable doubt that Tortell inflicted the stab wound, in sentencing Martinez his Honour could find that on the balance of probabilities. The reference to the submissions being matters to mitigate the sentence might also have been a shorthand reference to his Honour not making findings adverse to Martinez on this issue.
6. Even so, I will proceed on the assumption, favourable to Martinez, that his Honour was in effect asked to make a finding on the balance of probabilities that Tortell and not Martinez stabbed Mr Garmo but did not do so. As noted, the next issue that arises is whether such a finding would have been of any assistance to Martinez.
7. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, the plurality noted the principles from Olbrich about the onus of proof of aggravating and mitigating facts and observed that "[i]f the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known" (at [64]). This approach of sentencing an offender where some facts are uncertain is best illustrated by the facts of Olbrich itself where Gleeson CJ, Gaudron, Hayne and Callinan JJ rejected as "incongruous" the proposition that a sentencing judge who rejected an offender's evidence that he was only a drug courier would nevertheless have to sentence him on the basis that he was in fact a courier because the prosecution had not proved the contrary beyond reasonable doubt (Olbrich at [24]).
8. Where an offender's guilt is established by his or her participation in a joint criminal enterprise then the offender is sentenced "for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise" (R v Wright [2009] NSWCCA 3 at [28]; "Wright"). However, an offender does not "necessarily … receive the same punishment as would have been appropriate if he had himself personally performed all of those acts" in that "it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act" (Wright at [28]; R v JW [2010] NSWCCA 49 at [162]).
9. It follows from Olbrich, Fillipou and Wright that, if a finding cannot be made beyond reasonable doubt that an offender committed a particular criminal act that was part of the joint criminal enterprise and a finding cannot be made on the balance of probabilities that they did not commit the act, then they are to be sentenced on the basis that "neither of the competing possibilities is known" (Fillipou supra). It also follows that, if it can be established on the balance of probabilities that a particular participant in a joint criminal enterprise did not commit a particular criminal act then, all other matters being equal, that would tend to lessen their culpability in comparison to being sentenced on the basis that it was not known whether or not they committed the act. Implicit in the analysis in Olbrich was that the offender's case on sentence would have been enhanced if it had been accepted that he was a courier as opposed to the circumstance that it was uncertain whether he was a courier or someone with a greater role in the distribution of illegal drugs.
10. This latter proposition was the premise of the judgment of this Court in Borg v R [2019] NSWCCA 129 ("Borg") where the applicant was sentenced after he pleaded guilty to murder and the agreed statement of facts recorded that he was a participant in a joint criminal enterprise but had not shot the deceased. A co-offender was found guilty after a trial and sentenced on the basis that it could not be determined whether he or the applicant shot the deceased. This Court upheld a contention that there was a lack of parity between the applicant's sentence and the sentence imposed on the co‑offender. It was accepted that the parity principle was to be applied by reference to the different findings of fact about the circumstances of the offence made on sentence in respect of each offender (Borg at [93]). Nevertheless, it was accepted that the different factual basis upon which the applicant and his co-offender were sentenced, including the finding that the applicant did not shoot the deceased, rendered the applicant's offence "less serious" (Borg at [101] to [102] and [104] per Bathurst CJ) which along with his superior subjective case to that of the co-offender warranted this Court's interference.
11. In this case, it was common ground that the evidence indicated that only one person stabbed Mr Garmo so that a finding in Martinez's case that Tortell stabbed Mr Garmo would necessarily mean that Martinez did not stab him. I accept that if a finding had been made, on the balance of probabilities, that Tortell stabbed Mr Garmo (and Martinez did not) then that would represent a more favourable sentencing scenario than a scenario in which it was not known who stabbed Mr Garmo. It would or at least could have affected the assessment of the objective criminality of his offending and his moral culpability. It would or at least could have affected an assessment of any parity between himself and Tortell although that comparison would reflect that there was no finding in Tortell's case that he stabbed Mr Garmo (Borg supra).
12. The remaining issue arising on this ground of appeal as formulated is whether his Honour should have made a finding on the balance of probabilities in Martinez's case that Tortell stabbed Mr Garmo. If that issue had been addressed by the sentencing judge, then the relevant inquiry would have been whether it was "open" to his Honour to not make the finding (see Craft v R [2021] NSWCCA 131 at [47] per N Adams J). However, in circumstances where his Honour did not address the issue, then I will consider it on a basis favourable to Martinez, namely whether this Court should make the finding, although that is to be addressed in the context of the findings that his Honour did make.
13. Martinez's submissions in support of this ground contended that a finding in Martinez's case on the balance of probabilities that Tortell stabbed Mr Garmo was the proper finding on the evidence at trial because of: " …the injury to Tortell's neck, Prof[essor] Duflou's evidence as to both fatal injuries probably being from a double-bladed knife, the improbability of [Martinez] taking the McVerry knife earlier if he had another knife available to him, the timing of the attack giving Tortell significant opportunity, the DNA evidence of the same profile as Tortell under the fingernails of the deceased and mixed with DNA of the same profile of the deceased on and in the car, and further, given the manner in which the trial was run that it was only one of the two who inflicted the fatal stab wounds."
14. To the extent that this submission invokes Professor Duflou's evidence about the double-bladed knife and the supposed improbability of Martinez taking the "McVerry knife earlier if he had another knife available to him", then they fall away with the unsuccessful challenge to the sentencing judge's finding that that knife was used to stab Mr Tortell. To the contrary that finding provides some support for the possibility that it was Martinez who stabbed Mr Garmo.
15. As best I can ascertain the reference to the "timing of the attack" appears to be a reference to Tortell having chased Mr Garmo on foot and Martinez returning to the Lexus and pursuing them by driving to Gambier Street where he apparently could not see the rear of 8 Garnett Street where Mr Garmo was stabbed. The scratch to Tortell's neck has already been referred to. The reference to the DNA taken from the Lexus is to two samples, one taken from the inside driver's door handle and the other from the "outside top edge passenger door" both of which matched DNA profiles for Mr Garmo and Tortell.
16. It can be accepted that the three DNA samples point to Tortell being involved in the attack on Mr Garmo. However, that evidence and the fact that Tortell chased him on foot needs to be considered in the context of what clearly was a joint criminal enterprise to harm Mr Garmo. Just because it was accepted that there was only one knife and one person who stabbed Mr Garmo does not mean that there was only one attacker present when he was stabbed. Tortell and Martinez were acting in concert. Martinez was the older of the two. Martinez had the history of animosity towards Mr Garmo whereas there was no evidence that Tortell "shared this". Martinez initiated the confrontation and the chase of Mr Garmo. On his Honour's finding Martinez initially seized the knife that ultimately stabbed Mr Garmo. It is certainly possible that Tortell took up the hunt, caught Mr Garmo and stabbed him before Martinez arrived. It was also possible, indeed equally possible, that either Martinez caught him first and Tortell was present when Mr Garmo was stabbed or that Tortell located Mr Garmo and called out to Martinez who stabbed him.
17. All of this involves speculation, but it is speculation that Martinez invites because on this issue he carries the onus. I do not consider that the onus was discharged. I would not find on the balance of probabilities that Tortell stabbed Mr Garmo (and Martinez did not).
18. As formulated, ground 2 of the application is not made out. I would dismiss the ground.

Ground 3: Violence in a Public Place

1. Ground 3 of the application contends that his Honour "erred [in] taking into account 'offences [involving] significant violence committed in public places' when applying the principle of general deterrence and/or taking into account 'manslaughter by use of a knife'".
2. This ground refers to the following passage in the sentencing judge's reasons (at [139]): "General deterrence is an important factor on sentence. These offences involved significant violence committed in public places and then a private location, including a vehicle pursuit and manslaughter of Mr Garmo by use of a knife. The sentences to be imposed should send a message to the community that crimes of violence of this type will be punished appropriately." (emphasis added)
3. Martinez's written submissions make two complaints about this aspect of the reasons. The first complaint is that the reference to "offences" of violence committed in public places included the reckless wounding charge which arose out of a confrontation in the street for which Martinez was acquitted. I do not accept that contention has any substance. The reference to "offences" was to the offences of manslaughter committed by each of Martinez and Tortell. As a matter of substance those offences were committed in both a public place, being the chase of Mr Garmo in a car and then on foot, and then in a private location being the rear of 8 Garnett Street.
4. The second complaint in relation to this finding concerns the reference to the "manslaughter of Mr Garmo by use of a knife" in relation to Martinez. This was said to be impermissible when it was clear that the jury was not satisfied beyond reasonable doubt that Martinez stabbed Mr Garmo and when it was not found (and so it was said could not be found) that the scope of the joint criminal enterprise extended to the use of a knife as opposed to merely harming Mr Garmo. Again, this contention is without substance. Even though Martinez is not to be sentenced on the basis that he either stabbed Mr Garmo or agreed to the use of a knife to harm Mr Garmo, he was nevertheless to be sentenced on the basis that he was criminally responsible for the "for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise" (Wright at [28]). One of the acts undertaken in the carrying out of the enterprise was the stabbing of Mr Garmo. Martinez was criminally responsible for that act. His Honour did not err in characterising his offence as "manslaughter … by use of a knife" and regarding that as a matter warranting the conclusion that general deterrence was an important factor.
5. I would reject ground 3.

Ground 4: Discount for Offer to Plead Guilty

1. Ground 4 of the application contends that his Honour "erred in his determination of the utilitarian value of the applicant's pretrial offer to plead guilty to manslaughter".
2. The factual background to the making of the offers to plead guilty to manslaughter prior to the trial is set out above. The discount, if any, to be afforded in relation to the offer was not governed by Division 1A of Part 3 of the Sentencing Act as proceedings against Martinez and Tortell were commenced prior to it coming into force. At first instance, the Crown initially conceded a discount of 5% to 10% would be appropriate but later submitted that his Honour would be entitled not to allow any discount (at [125]). Tortell submitted that a discount of between 10% and 12.5% was appropriate. Martinez's counsel submitted that his client was deserving of "a discount" but did not nominate a percentage.
3. In light of the argument as it developed, it is necessary to set out his Honour's reasons on this issue. After referring to the offer made on 6 September 2019, His Honour stated: "121 On 8 November 2019, the last working day before the scheduled trial commencement date, the solicitors for each Offender offered to plead guilty to manslaughter upon the basis of joint criminal enterprise. On that day, the Crown rejected that offer. 122 The application dated 8 November 2019 made on behalf of the Offenders was tendered at the sentencing hearing (Exhibit 3). It outlined the basis upon which the pleas of guilty were being offered by each Offender. 123 When arraigned at the commencement of the trial, each Offender pleaded not guilty to murder. Neither Offender offered a plea of guilty to manslaughter in the presence of the jury. The trial of the Offenders proceeded and was contested upon a basis that each Offender should be found not guilty of murder and manslaughter. 124 No submission was made to the jury on behalf of the Offender Martinez that it may be open to find him not guilty of murder, but guilty of manslaughter. A short and alternative submission to that effect was made to the jury on behalf of the Offender Tortell. 125 Submissions were made at the sentencing hearing by reference to principles to be applied where a discount is sought following a verdict of the jury convicting a person of the offence in relation to which an offer to plead guilty was made, but rejected by the Crown. The Crown submitted that it would be open to the Court to allow no discount in this case to either Offender, relying upon Merrick v R [2017] NSWCCA 264. 126 Submissions were made on behalf of each Offender that some discount should be allowed in the circumstances of this case. 127 The principles to be applied in circumstances such as this have been considered recently in Magro v R [2020] NSWCCA 25 at [58]-[64]. 128 Having considered the principles outlined in Merrick v R and Magro v R, I am satisfied that a modest discount should be applied in each case to reflect the utilitarian value of the offer to plead guilty upon the basis identified by the Court of Criminal Appeal and found by the jury. 129 I take into account that the offers to plead guilty were made on the last working day before the trial. 130 A discount of 5% will be applied for each Offender as a result of their offers to plead guilty to manslaughter before the trial." (emphasis added)
4. In his written submissions, Martinez contended that his Honour's assessment that the appropriate discount was 5% was erroneous given the utilitarian value that the acceptance of his offer to plead guilty would have yielded namely the likely avoidance of a five-week trial and the calling of approximately 15 witnesses in the prosecution case. The submissions contend that the level of discount afforded was not consistent with the application "of the principle" in a number of other sentences. By reference to various examples, it was contended that the "application of principle in relation to cases involving a late plea demonstrate a discount in the order of 10% for the utilitarian benefit (or potential benefit) where the plea is offered prior to the trial" such that it was "not open" to his Honour to only allow a "mere 5% discount".
5. The principles applicable to the affording of discounts on account of plea offers that were not accepted by the prosecution were recently reviewed by this Court in Magro v R [2020] NSWCCA 25 at [46] to [55] ("Magro"). Of present relevance is the acceptance of the proposition that fairness to an offender warrants consideration of the potential utilitarian value of the plea offer had it been accepted and that broadly the discount is assessed in the same manner as if the plea had been accepted (Magro at [49] and [51]). In that context, one of the guidelines enunciated in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] ("Thomson") was that "the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence" with the "primary consideration determining where in the range a particular case should fall, [being] the timing of the plea". However, that is only "a guideline [and it] creates no presumption nor entitlement to a particular discount to reflect the utilitarian value of an offender's plea of guilty" (Hallak v R [2014] NSWCCA 48 at [22]; "Hallak"). The determination of the level of discount to be afforded remains a matter for the sentencing judge's discretion (Hallak at [17]; Thomson at [10] and [72]). In Hallak, this Court did not interfere with a discount of 5% which was applied when the offender pleaded guilty on the day the trial was due to commence (at [3]).
6. The various cases identified in Martinez's submissions illustrate that the discount usually afforded to a plea offer of the kind made here on the day before the trial commences, is 10%. However, they do not demonstrate that affording a discount of 5% was somehow erroneous either as a matter of principle, unreasonable, unjust or otherwise "not open". It is an especially difficult task for this Court to second guess the assessment of the lost utilitarian value of a plea offer made by the judge who actually conducted the trial.
7. During the course of oral argument, Ms Bashir SC, articulated a further attack on the discount afforded by his Honour. Ms Bashir contended that the above reasoning disclosed error in that his Honour impermissibly considered the failure of Martinez to proffer a plea of guilty to manslaughter in the presence of the jury. I accept that submission.
8. In R v Cardoso (2003) 137 A Crim R 535; [2003] NSWCCA 15 at [20], Hidden J (with whom Meagher JA and Greg James J agreed) did not accept the relevance of a failure to plead guilty to manslaughter in front of the jury to the assessment of the discount afforded to a rejected offer to plead guilty to that charge when that offer corresponds with the jury's ultimate verdict. In Magro, this Court found error on the part of the sentencing judge by having regard to the failure of the offender to plead guilty to manslaughter in front of the jury in assessing the level of discount afforded on account of a rejected plea offer (at [57]). This approach accords with the underlying rationale for offering a discount namely the lost utilitarian benefit; the fact that no plea was offered in front of the jury is irrelevant to the assessment of that benefit.
9. In the end result, the debate about this complaint reduced to considering whether, in referring to the absence of a plea of guilty in front of the jury, his Honour was merely recounting the history of the plea offers or considered it as part of his assessment. In circumstances where his Honour did refer to that matter and did not refer to any assessment of the utilitarian benefit that would have ensued had the plea been accepted, I am satisfied that it was considered and in doing so his Honour erred.
10. I would uphold this ground.

Ground 5: Special Circumstances

1. Ground 5 of the application contends that his Honour "erred in his determination that a finding of special circumstances should not be made for the applicant".
2. At the sentence hearing, the Crown Prosecutor conceded that his Honour could find special circumstances for both Martinez and Tortell on the basis of their youth and that it was their first time in custody. Counsel for each offender urged the making of such a finding but, as noted, his Honour declined to make such a finding in relation to Martinez although such a finding was made in relation to Tortell. The relevant part of the sentencing judgment concerning these findings was as follows (at [145] to [146]): "With respect to the Offender Martinez, after application of the 5% discount (with some rounding), I am satisfied that a sentence of imprisonment for 10 years and six months should be passed. I am satisfied that there are no special circumstances warranting departure from the usual ratio as between the head sentence and the non-parole period. Accordingly, the sentence of imprisonment in his case will be imprisonment for 10 years and six months with a non-parole period of seven years and seven months to date from 27 August 2015. In the case of the Offender Tortell, he has no prior criminal history and was 18 years old at the time of the offence. He has good prospects of rehabilitation and a low risk of reoffending. There are significant differences between the subjective cases of the two Offenders with the Offender Tortell having a stronger subjective case on sentence."
3. In R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73], Spigelman CJ characterised the process of making a finding of special circumstances as being "first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence". His Honour added that "there are well known restraints on an appellate court from interfering with decisions of this character" and noted that "as a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive". I take the former to be a reference to House v The King (1936) 55 CLR 499 ("House"; see Bell v R [2019] NSWCCA 271 at [2]). I do not take the latter as holding that a challenge to a finding concerning special circumstances cannot be a basis in its own right for seeking leave to appeal against sentence. Such a proposition would be difficult to reconcile with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell").
4. Martinez's submissions do not contend that his Honour failed to provide adequate reasons for declining to make a finding of special circumstances. In any event, his Honour's reasons for doing so are clear when regard is had to his reasons for making such a finding in relation to Tortell. His Honour did not regard Martinez's subjective case, specifically, his age, his prior criminal record and his "guarded" prospects of rehabilitation as warranting such a finding.
5. Martinez contended that it was "not open" to his Honour to not be satisfied that there were special circumstances which I take to be a reference to his Honour's conclusion being "unreasonable or plainly unjust" (House at 505). His submissions referred to his relative youth at the time of the offence (21) and his current age (27), that it was his first time in custody, the importance of promoting his rehabilitation and his Honour's findings about rehabilitation and the lengthy time he would otherwise spend in custody. The submissions also referred to a report of a psychiatrist which concluded that Martinez had a substance use disorder and recommended drug and alcohol counselling.
6. All of these matters have force and no doubt could have constituted the basis for a finding of special circumstances but they did not compel such a finding. His Honour was clearly cognisant of the matters that bore upon an assessment of whether special circumstances were demonstrated and his refusal to make the finding was not unreasonable or unjust.
7. I would reject this ground.

Resentence

1. In light of the conclusion on ground 4 it is necessary to re-exercise the sentencing discretion (Kentwell).
2. In light of the failed challenge to his Honour's findings about the knife used in stabbing Mr Garmo and his Honour's failure to find that Martinez did not stab him (and the finding set out above at [59]), it is appropriate to adopt his Honour's findings on those matters as well as the findings concerning the objective seriousness of Martinez's offence and his subjective case (Turnbull v R [2019] NSWCCA 97 at [44] to [46]). In relation to Martinez's prospects of rehabilitation, at the hearing of the application, an affidavit sworn 25 October 2021 by him was read on the "usual basis" along with an affidavit sworn by a solicitor employed in the Office of the Director of Public Prosecutions ("ODPP") on 26 October 2021 (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]). In his affidavit Martinez describes his work history in jail and his completion of various training courses. These matters are to his credit but he also accepts that he has engaged in misconduct including assaulting another inmate, refusing to be drug tested and possessing drugs. These are also described in the ODPP solicitor's affidavit. This material is consistent with the sentencing judge's assessment of Martinez's prospects of rehabilitation which I adopt. Martinez's affidavit also describes the effect of pandemic restrictions on prisoners and his anxiety about becoming infected with COVID-19 especially considering he has a medical history of breathing problems. I have considered those matters.
3. Given Martinez's criminal antecedents and the objective seriousness of his offence, I agree with the sentencing judge that a finding of special circumstances is not warranted. In light of the above analysis of ground 4 and what is known about the length of the trial I consider a discount of 10% is appropriate for the plea offers that were rejected.
4. An annexure to Martinez's submissions is a precis of a number of first instance decisions imposing sentences for manslaughter by a dangerous and unlawful act where the offender participated in a joint criminal enterprise. A review of those decisions reveals what is otherwise implicit in the above analysis namely the necessity to consider, inter alia, the scope of the joint criminal enterprise and whether it extended to the use of a weapon, the degree of planning or premeditation involved and the individual acts of the offender along with the other sentencing factors. Martinez's overall submission is that a lesser sentence is warranted in law, a submission I accept.
5. In considering the appropriate length of sentence it is necessary to have regard to the need for parity with Tortell's sentence but like the sentencing judge I note that Martinez was older, had a criminal record and that the objective seriousness of his offending is worse. Prior to any allowance for his rejected offers to plead guilty I consider that the appropriate sentence is imprisonment for 10 years and 3 months. After allowance for the offers to plead guilty and rounding, the appropriate head sentence is 9 years and 3 months with a non-parole period of 6 years and 11 months.
6. Accordingly, I propose the following orders: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) Set aside the sentence imposed by Johnson J on the applicant on 20 March 2020; (4) In lieu thereof: 1. sentence the applicant to a term of imprisonment of 9 years and 3 months to commence on 27 August 2015 and expire on 26 November 2024 with a non-parole period of 6 years and 11 months; and 2. specify that the earliest date the applicant will be eligible to be released on parole is 26 July 2022. (5) Direct the applicant's solicitor to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offence the subject of this application.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2022