R v David MARTIN

The incident 8In October 2007, David Martin and Lisa Mackett were living together in a rented house in Bateau Bay. They owned a red Ford Telstar motor vehicle. On Saturday 20 October 2007 at 5.00pm or thereabouts, they drove to the Bateau Bay Hotel, entering a large car park attached to the hotel via the Lumby Street gates. They parked their vehicle close to the hotel. 9David Martin and Lisa Mackett then spent the evening in the beer garden of the hotel. They met with friends and were described as being in good spirits. During the course of the evening, and especially towards the end of the evening, there were fights inside and outside the hotel. An experienced hotel manager described the hotel as having an "odd feeling", which he ascribed to testosterone. There were significantly more males than females. Neither Luke Hankey nor David Martin was involved in the fighting inside the hotel before the hotel closed at midnight. 10Patrons began leaving the hotel shortly before midnight. As recorded on CCTV footage, a brawl erupted approximately five minutes before midnight. At 12.12am, David Martin and Lisa Mackett passed through the exit doors into the car park. Luke Hankey and his group had gone through the same doors approximately three minutes before them. 11David Martin said that he and Lisa Mackett had intended to walk home. Their house was only a short distance from the hotel. However, as they entered the car park there was yelling and shouting. There were groups of people. They became concerned that their car might be damaged, were it left over night. They therefore determined that they would drive home. 12Lisa Mackett occupied the driver's seat, with David Martin as the passenger. The car was driven through the car park towards the Lumby Street gates. People, including Luke Hankey and his group, were walking towards the same gates. The gates provided a shared exit. Members of the group became aware of a car behind them, which they described as being driven erratically. 13Ultimately, the path of the car was blocked by pedestrians. Luke Hankey was directly in front of the vehicle when it stopped. He apparently turned his back on the vehicle, putting plant material down his trousers and, as described by his sister, "wiggled his bum". 14The horn of the car did not work. The female driver, Lisa Mackett, was heard to yell out, perhaps with expletives: "Get out of the way; you'll get yourself killed". The path of the car, however, remained blocked. Members of the crowd yelled at the occupants of the car. 15In these circumstances, David Martin and Lisa Mackett both got out of the vehicle. David Martin picked up a blunt implement as he did so. The implement had a steel shaft at least 10 centimetres in length. The wounds later inflicted by this implement had a star shaped pattern, suggesting that it was probably a Phillips Head screwdriver. David Martin passed behind the vehicle, moving swiftly. He approached a group at the side of the vehicle, which included Beau Janson. 16Using the steel implement, he struck Beau Janson twice on the left side of his neck. He inflicted wounds which penetrated the various layers of the skin. Fortunately, however, the wounds were relatively superficial. They did not require suturing. Beau Janson has been left with no residual disability (count 1). 17The attack was unprovoked. Beau Janson had neither spoken to David Martin nor made any gestures towards him before the attack. After he was struck, he stumbled as he tried to get away. 18David Martin then moved towards the front of the vehicle and confronted Luke Hankey. With a thrusting motion, requiring moderate to severe force, he struck Luke Hankey twice in the chest. The blunt implement, on one of these occasions, penetrated eight centimetres through to the heart and aorta. The other wound was relatively superficial. Again the attack was unprovoked. Within a short time, Luke Hankey collapsed. Death followed rapidly (count 2). 19David Martin then confronted a third man, Danny Andrews, a member of the group. Danny Andrews backed away, holding both palms up, saying words to the effect: "Go away, I don't want anything to do with you". David Martin then returned to the driver's seat of the vehicle. 20As this was happening, Lisa Mackett assaulted Luke Hankey's sister, Eva Hankey, and later Kellie Marshall. She then returned to the vehicle, occupying the passenger seat. 21The whole episode took seconds rather than minutes. The vehicle then left at some speed, driven by David Martin. As it drove away, it was attacked by the crowd. 22The vehicle, at the time of purchase, had a crack to the windscreen on the driver's side. As it sped off, someone in the crowd threw a blunt metal pole or similar object at the vehicle. It hit the already weakened windscreen, causing a number of additional cracks. The windscreen, however, did not shatter. The damage occasioned to the vehicle was an important aspect of the Crown case, providing a link between the vehicle of David Martin and Lisa Mackett and the incident in the car park. 23Having left the hotel, David Martin drove the short distance to Rays Road, a connecting road that ultimately led to his home. The assault, the subject of count 6, occurred in Rays Road a minute or so after they had left the car park. David Withers, the victim of the assault, had spent the evening at the Bateau Bay Hotel. He left the hotel at about midnight. He was significantly affected by alcohol. He and a friend were walking home. Their journey took them along Rays Road. Once in Rays Road, they saw a parked vehicle belonging to a friend. As they crossed the road, approaching their friend's vehicle, the red vehicle of David Martin turned the corner. As it did so, David Withers and his friend were standing in the middle of the road. David Martin slammed on the brakes. He managed to stop the vehicle about two metres from them. As David Withers moved to the side of the road, he gave a wave to the driver of the vehicle, as if to say he was sorry. It was apparent to David Martin that they were very much affected by alcohol. 24David Martin got out of his vehicle. He yelled abuse at David Withers and his companion. He then pushed David Withers in the chest and punched him in the right eye. David Withers was thrown back onto the bonnet of his friend's car. However, he was not seriously injured. 25Lisa Mackett, meanwhile, slid across to the driver's seat of the vehicle. As she did so, she yelled out: "We need to get out of here, we need to get the fuck out of here, we've got to go". David Martin got back into the vehicle, occupying the passenger seat. The vehicle then drove off.

The objective seriousness of the offences 26Under the Crimes (Sentencing Procedure) Act 1999, standard non-parole periods have been fixed in respect of a number of offences (s54A(2)). Relevantly, the Act specifies a 20-year standard non-parole period in the case of murder (count 2), and a 3-year standard non-parole period for reckless wounding (count 1) (Division 1A Table). In each case, the standard represents an "offence in the middle of the range of objective seriousness". 27Submissions on sentence were made on 30 September 2011. Such submissions were made by counsel with R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 in mind. On 5 October 2011 the High Court handed down its decision in Muldrock v R [ 2011] HCA 39. It unanimously determined that R v Way had been wrongly decided (at [25]). A sentence, including the non-parole period, must be determined in the manner described by McHugh J in Markarian v The Queen (at [26]). McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 said this at [51]: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (emphasis added) 28The maximum penalty for the offence serves as an indication of the relative seriousness of that offence. The standard non-parole period is another guide-post. 29The Crown acknowledged there was no intention to kill. The trial was run upon the basis of an intention to cause grievous bodily harm. The Crown suggested that the intention was formed sometime between leaving the car, carrying the blunt instrument, and using that instrument to stab Luke Hankey. There was, it was conceded, an absence of pre-meditation and planning (s21A(3)(b)). On the other hand, the use of a weapon was a circumstance of aggravation, as counsel for Mr Martin acknowledged (submissions p7). Further, the weapon was used with "moderate to severe force". 30Counsel for Mr Martin drew attention to the duration of the offending behaviour, which was extremely short. Having left the car, the episode took seconds rather than minutes. The court was urged to find that the weapon was taken from the vehicle and I accept that it was. There was, counsel said, no gratuitous cruelty. Both counsel, addressing the test as it was in R v Way , said that the offence fell below the mid-range, although the Crown added "not by a large margin". 31Dealing with the objective seriousness of the offence, Mr Martin and Ms Mackett exited the car because their progress was impeded. I infer that they each felt anger and frustration. It was essentially a case of road rage. I accept that the act of Mr Martin, in taking hold of the blunt instrument as he got out of the car, was impulsive. The instrument was probably a screwdriver. Although it is not an excuse, his consumption of alcohol is relevant to his state of mind. But for his impulsive decision to take hold of a weapon, these matters might have been dealt with in the Local Court and Mr Hankey would be alive today. His impulsive act in taking hold of a weapon was a moment of madness that has cost a blameless young man his life, and has had catastrophic consequences for Mr Martin himself. 32Let me move from the offence of murder to the offence of reckless wounding in respect of Beau Janson (count 1). Mr Janson, it will be remembered, was the first victim, struck twice by the offender with the same blunt instrument. The offender struck, knowing of the possibility that wounds might be inflicted, as indeed they were. Fortunately, the wounds were superficial, presumably because Mr Janson stumbled or moved to defend himself. They were dressed by a doctor, but there was no residual disability or scarring. 33The Crown acknowledged that the episode was brief and that David Martin then moved swiftly towards Luke Hankey. He also drew attention to the important statement of principle by Howie J in R v McCullough [2009] NSWCCA 94; (2009) 194 A Crim R 439 where the following was said at [37]: "Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]." 34The Crown, again with R v Way in mind, acknowledged in these circumstances that the offence was below the mid-range of objective seriousness. The submissions of counsel for Mr Martin were to the same effect. 35The offence of reckless wounding covers a large range of offending behaviour. Most wounds, although not all, are inflicted by means of a weapon. Nonetheless, the use of a weapon remains an aggravating circumstance (s21A(2)(c)). On the other hand, the fact that no substantial injury was inflicted is a mitigating factor (s21A(3)(a)).

The subjective case 36Let me move from the offences to the offender and examine the personal circumstances of David Martin. He was born in New Zealand in November 1979. At the time of the incident in the car park of the Bateau Bay Hotel, he was almost 28 years old. He will shortly turn 32 years. He did not give evidence on sentence. However, he gave evidence during the trial in which he referred to his childhood, his drug taking and the psychological problems that affected him at the time of the offences, principally anxiety. Whilst awaiting trial, he was seen on 14 September 2009 by a psychologist, Dr Katie Seidler. Dr Seidler prepared a report of 17 September 2009, which was tendered on behalf of Mr Martin. That report (exhibit 1) and Mr Martin's antecedents (exhibit A) are the source material from which the following description emerges concerning his subjective case. 37Mr Martin's parents separated soon after he was born. He has an older sister. His mother later remarried an Australian. The family, including David Martin and his sister, then moved to Australia. His mother discouraged contact with his father in New Zealand. He is largely estranged from his father and has had almost no contact with his New Zealand family. 38Mr Martin's mother and his step-father later had four children. They are now aged between 19 and 24 years. His mother, at some point, was diagnosed with schizophrenia and agoraphobia. She was said to be occasionally psychotic and often erratic. As a consequence, Mr Martin's childhood was described by the psychologist as "difficult and likely traumatic". Although he got on well with his siblings, he felt like an outsider within the family and did not feel loved. 39From an early age, perhaps 11 or 12 years, he began taking drugs and drinking alcohol. He described himself as an above average student academically. Nonetheless, his erratic parenting, poor attendance at school, and his rebellious attitude, as well as drugs, inevitably led to failure at school. He left school at the age of 15 years without having completed Year 9. 40At the same time, he ran away from home. He told the psychologist that for a time he slept in abandoned trains before moving to shared rental accommodation. He acknowledged that, at this point in his life, his peers were anti-social in their outlook. 41It is unsurprising, in these circumstances, that he began to commit crime. In October 1996, Mr Martin was dealt with by the Children's Court for possession of housebreaking implements, entering enclosed lands, and two counts of break, enter and steal. A Control Order was made for a period of five months. In late 1997 and early 1998, Mr Martin was charged with further offences, including the destruction of property, possession of cannabis, common assault and resisting a police officer. In March and April 1998, the charges were dealt with by Wyong Children's Court and Gosford Local Court. Fines were imposed in respect of a number of offences. An order was made that he serve 300 hours community service in respect of the assault, and enter a two-year recognisance for having destroyed or damaged property. The terms of the recognisance included a requirement that he attend Alcoholics Anonymous meetings and accept drug and alcohol counselling. 42In April 2001, Mr Martin was arrested under warrant for breaking and entering a building with intention to steal (three counts). The offences were no doubt a manifestation of his continuing drug use. He was also charged with having breached the recognisance. He was placed on a two-year bond. An order was made that he be subject to the supervision of the New South Wales Probation and Parole Service. He was again ordered to serve 300 hours of community service. 43On 28 February 2002, Mr Martin was arrested on a number of counts of break, enter and steal. On the 24 June 2002, taking account of matters on a Form 1, the court imposed a four year term of imprisonment commencing on the 28 February 2002 and expiring on the 27 February 2006, with a non-parole period of two years. He became eligible for release on parole on the 27 February 2004. A concurrent term of nine months imprisonment was later imposed for his failure to observe the terms of the community service order. 44The custodial history of Mr Martin (exhibit 1) shows that he committed a number of offences during his term of imprisonment. His offences are consistent with an ongoing drug problem and/or a defiant attitude. Clearly his criminal history does not entitle him to leniency. He did, however, complete some TAFE courses. 45Since leaving school, and when not in prison, Mr Martin has only worked very occasionally. Dr Seidler said this (exhibit 1): "20. According to his account, Mr. Martin has had difficulty participating in the competitive workforce consistently, which he attributed to a generalised lack of motivation for employment. Notwithstanding, Mr. Martin noted that he has worked briefly as a packer, dishwasher, factory hand and night filler. The longest period over which he has maintained consistent employment is approximately six months and Mr. Martin offered that, although he has never been terminated from employment, he has often left positions under difficult circumstances." 46Mr Martin has survived financially on the basis of social security benefits. Since forming his relationship with Ms Mackett, he has also performed domestic duties, including looking after her two daughters whilst she was at work. He told Dr Seidler that, since his release from jail in February 2004, he had a "small network of stable and prosocial friends". His record does show that for the three years or so following his release on parole he did not offend before the present offences. 47Dr Seidler, having interviewed Mr Martin for a number of hours, saw no sign of significant psychopathological symptomatology. Mr Martin was in good physical health. He presented as a strong able-bodied individual. Dr Seidler arranged for him to undergo psychological testing. He was of normal intelligence. A personality test, however, suggested quite a disorganised state, which Dr Seidler thought may be a "cry for help" from a disordered individual. He was pervasively prone to negativity and depression. He had a history of self harm, including attempts at suicide. He suffered from anxiety. His consumption of drugs and alcohol was clearly a problem. At the time of her interview he was taking a mood-stabilising drug. 48Mr Martin was arrested on 9 May 2009. He has been in custody since that time. In contrast to the 2002 to 2004 period of incarceration, there have been no offences since his arrest. I assume that he has been periodically tested for drugs. Counsel for Mr Martin submitted, and I accept, that there are signs that Mr Martin is maturing. Dr Seidler said and I accept, that whilst in jail and upon release, Mr Martin would benefit from psychological treatment in three areas: First, treatment for anxiety and depression; Secondly, treatment for anger management, since he has a propensity for aggression; Thirdly, counselling and treatment in respect of alcohol and drugs. 49Mr Martin pleaded not guilty at trial to murder and reckless wounding. There has been no acknowledgement, since the jury verdict, of his involvement in the offences, nor any expression of remorse. 50Inevitably I must impose a significant sentence. Notwithstanding the absence of an acknowledgement of responsibility and remorse, I believe that, with maturity, there are reasonable prospects for rehabilitation (s21A(3)(h) Crimes (Sentencing Procedure) Act 1999).

The appropriate sentences 51Let me turn to the appropriate sentences in respect of each offence. Beginning with murder, the starting point is that murder involves the felonious taking of a human life. It violates the sanctity of human life, which is the foundation of our community. It is the most serious crime in the criminal calendar. That seriousness is reflected in the maximum penalty that has been fixed by parliament, which is life imprisonment. It is also reflected in the standard non-parole period for a mid-range offence, which has been fixed at 20 years. Absent extraordinary circumstances, a conviction for murder calls for a substantial sentence to serve the interests of punishment. Such interests include denunciation of the conduct of the offender and deterrence of the wider community against similar conduct. 52Objectively all cases of murder are very serious. Yet, as the legislation introducing standard non-parole periods recognises, the circumstances giving rise to murder may differ widely. At one end of the scale you have cold-blooded murders, committed with pre-meditation for financial gain by adults in full-possession of their faculties. At the other end you may have a domestic dispute where one party, in the course of an argument, overreacts and forever regrets that reaction. As Adams J recently noted in R v Whitmore (2009) NSWSC 520 at [46], any just system of criminal sentencing must reflect such differences. Here, the stabbing of Luke Hankey was a brutal and senseless act. Mr Hankey was a much-loved young man of great promise. His murder not only extinguished his young life but substantially robbed his family of their peace of mind and happiness. His mother and his partner, Ms Kellie Marshall, read victim impact statements (exhibits B and C). Each was a poignant reminder of the heart-ache and endless pain occasioned by Luke Hankey's death. The court extends its condolences to the family and Ms Marshall. I must of course deal with such material in a manner consistent with R v Previtera (1997) 94 A Crim R 76. 53Having regard to all the circumstances, I accept that the crime falls below the mid-range by a margin greater than "just below". The Crown and counsel for Mr Martin have each referred to a number of authorities where persons have been recently sentenced for murder. I have read these cases with interest, although each case to some extent turns on its own facts. I have also been given statistics in relation to sentencing for murder since the introduction of standard non-parole periods. These statistics are maintained by the New South Wales Judicial Commission. 54Having considered this material, the appropriate sentence for murder, I believe, is a non-parole period of 15 years imprisonment with an additional term of five years, a total term of 20 years. 55Moving to the offence of reckless wounding, the maximum penalty for that offence is seven years imprisonment (s35(4) Crimes Act 1900). The standard non-parole period fixed for a mid-range offence is three years imprisonment. Taking account of the circumstances relevant to the sentence, the offence should be characterised as well below the mid-range. Counsel for the Crown and Mr Martin each provided a number of cases where persons had been sentenced for this offence. I have considered that material. The appropriate sentence I believe is a non-parole period of 18 months with an additional term of 6 months, a total term of 2 years. 56Finally, dealing with the assault on David Withers, the maximum penalty is two years imprisonment (s61 Crimes Act 1900). There is no standard non-parole period. The assault upon David Withers was an aggressive burst of anger, which fortunately had no lasting consequences. Alcohol again is probably part of the explanation, although not an excuse, for Mr Martin's gross overreaction. There was a plea of guilty on arraignment, reaffirmed before the jury at the trial. A discount of 15 per cent should be allowed for the plea. The appropriate sentence, taking account of the plea, and with rounding, is a fixed term of imprisonment of six months.

The total sentence 57In determining the total sentence to be imposed, issues arise as to accumulation and concurrency. What is the appropriate total sentence? Should the sentences, or some of them, be accumulated or partly accumulated? Should one or more be made concurrent? The principles have recently been helpfully restated by Hall J in R v XX [2009] NSWCCA 115. It is relevant to enquire whether the crimes were committed in the course of a single criminal enterprise or episode. If they were, that may suggest that the sentences should be concurrent. 58Here, counts 1 and 2 may be regarded as part of the same episode. They were committed within seconds of each other and in the same general area. The incident concerning David Withers was somewhat later, although not much later. It occurred several streets away. 59However, even where two crimes may be regarded as part of the same episode, the court must still consider whether the sentence for one offence adequately comprehends and reflects the criminality of the other. Hall J, in the same case, stated one of the principles which should guide that assessment in these terms (at [52]): "(8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004 ] NSWCCA 65." 60Here, there were two victims and separate acts of stabbing in relation to each. I do not believe that the sentence for murder adequately reflects the criminality involved in the additional offence of reckless wounding. There should be partial accumulation to the extent of 12 months, to reflect the principle of totality. 61On the other hand, the Crown submitted that the attack upon David Withers in Rays Road was arguably a continuation of Mr Martin's anger and rage from the car park. Although remote geographically, and separated by a short interval, I believe the sentence in respect of the assault should be concurrent. 62The total sentence, therefore, should include a non-parole period of 16 years with an additional term of 5 years, a total sentence of 21 years. It should date from the time of Mr Martin's arrest on 9 May 2009, when he was taken into custody. 63Counsel for Mr Martin urged a finding of special circumstances. It is appropriate that I make such a finding, but only to reflect the small adjustment arising from accumulation. There is no question that Mr Martin has a number of issues that must be addressed whilst he is in gaol and after his release on parole, including drugs and alcohol as well as anger management. He will require an extended period of supervision. However, necessarily, the additional term that I have fixed, during which he will be eligible for parole, is significant. I believe it will be sufficient, without further adjustment, for him to undergo the treatment contemplated by the psychologist. 64David MARTIN , I sentence you as follows: First, in respect of the charge of reckless wounding (count 1), you are sentenced to a non-parole period commencing on 9 May 2009 and ending on 8 November 2010 with an additional term of 6 months ending on 8 May 2011, a total term of 2 years. Secondly, in respect of the assault against David Withers (count 6), you are sentenced to a fixed term of 6 months, concurrent with the previous sentence, commencing on 9 May 2009 and ending on 8 November 2009. Thirdly, in respect of count 2, the murder of Luke Hankey, you are sentenced to a non-parole period of 15 years commencing 9 May 2010 and ending on the 8 May 2025, with an additional term of 5 years, ending on 8 May 2030. 65You will therefore be obliged to serve a total non-parole period of 16 years, with an additional term of 5 years. 66You will be eligible for release on parole on 8 May 2025 and your sentence will expire on 8 May 2030.

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