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).