R v Martinez; R v Tortell

Supreme Court of NSW|2020-02-18|Before: Johnson J, Mr J

REMARKS ON SENTENCE

JOHNSON J: The Offenders, Wade Martinez and Jake Tortell, stood trial by jury in this Court commencing on 12 November 2019 on an indictment charging each of them with the murder of Gewargis ("George") Garmo on 14 February 2015. In addition, Mr Martinez was charged with reckless wounding of Mr Garmo on that date.
On 17 December 2019, the jury found each Offender not guilty of murder, but guilty of manslaughter. The Offender Martinez was found not guilty of the offence of reckless wounding.
It remains for the Court to sentence each Offender for manslaughter, an offence carrying a maximum penalty of 25 years' imprisonment: ss.18(1)(b) and 24 Crimes Act 1900.

Applicable Principles Concerning Fact Finding On Sentence After Trial

It is the responsibility of the Court to determine the facts on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4]-[5]. In finding facts for the purpose of sentence, the primary constraint upon the Court is that the view of the facts to be adopted for the purpose of sentencing must be consistent with the verdicts of the jury. Some of those facts will have emerged in evidence at the trial, others may only emerge at the sentencing hearing. Findings of fact made against each Offender on sentence must be arrived at beyond reasonable doubt: Cheung v The Queen at [14]-[15].
On the other hand, if there are matters which each Offender seeks to rely upon to reduce his penalty, it is enough if those matters are proved by that Offender on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28].
A sentencing Judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform an offender's moral culpability. However, it may not be possible for the Judge to ascertain everything which is relevant, especially where an offender (as here) chooses not to give evidence at trial or on sentence: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. When sentencing an offender where there is a dispute as to the facts of the offence, the Court should not draw an adverse inference by reason of an offender's failure to give evidence save in rare and exceptional circumstances which do not apply to the present case: Strbak v The Queen [2020] HCA 10 at [13].
Not every matter urged on a sentencing Judge has to be, or can be, fitted into categories of aggravating or mitigating circumstances. There are matters of human behaviour that lie between those extremes: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22]. The Court may be unpersuaded of matters urged in mitigation or aggravation. Of course, the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen at [24].

Basis for Verdicts of Guilty of Manslaughter

In approaching factual findings for the purpose of sentence, it is necessary to have regard to the basis upon which the jury found each Offender not guilty of murder, but guilty of manslaughter.
The trial was conducted upon the basis that Mr Garmo was stabbed to death by one or other of the Offenders. No scenario was left to the jury which raised the prospect of a third party killing Mr Garmo. The nature of the knife attack upon Mr Garmo, which involved nine stab wounds including major wounds to the chest and the back, was such that the jury would have had no difficulty in finding beyond reasonable doubt that the person who stabbed Mr Garmo intended to kill him or, at the very least, to cause him grievous bodily harm.
A central issue in the trial was whether the jury could be satisfied beyond reasonable doubt which one of the Offenders had stabbed Mr Garmo. An associated question concerned the existence of an agreement between the Offenders by way of a joint criminal enterprise to kill Mr Garmo or to cause him grievous bodily harm or to inflict physical harm to him falling short of grievous bodily harm. A number of permutations and combinations were left to the jury in the form of 10 scenarios which arose for consideration in the circumstances of the trial. These scenarios were provided to the jury in written form (MFIs 71, 82 and 86).
It is appropriate, at this point, to observe that each Offender had been found guilty of the murder of Mr Garmo at a trial before Mathews AJ and a jury in 2017. The Offenders appealed successfully to the Court of Criminal Appeal with the convictions being quashed on 10 July 2019 and a retrial ordered: Martinez v R; Tortell v R [2019] NSWCCA 153. It was the retrial of the Offenders which proceeded in November-December 2019.
The principal basis upon which the Offenders succeeded on appeal was the failure of the trial Judge at the 2017 trial to leave to the jury the possibility of an alternative verdict of manslaughter on the basis of a joint criminal enterprise involving an agreement falling short of intentional infliction of grievous bodily harm. In that respect, the Court of Criminal Appeal (Macfarlan JA, R A Hulme and Adamson JJ agreeing) summarised features of the evidence which pointed to one or other of the Offenders as being the assailant who stabbed Mr Garmo. Having considered the evidence which pointed in one direction or the other (at [79]-[82]), Macfarlan JA said at [83]: "In the event that the jury was not satisfied beyond reasonable doubt of the identity of the assailant, which I have just indicated was a possible view, it had to consider whether Wade and Jake agreed to kill George or inflict grievous bodily harm on him. There were reasons as follows why the jury might not have been satisfied beyond reasonable doubt that Wade and Jake made such an agreement …"
Macfarlan JA then summarised submissions made on the appeal as to why the jury might or might not have been satisfied beyond reasonable doubt that there was such an agreement.
Macfarlan JA then continued at [85]: "These arguments have force but they raise factual questions which were for the jury, not this Court, to assess and to determine. They are not of such strength that they demonstrate to this Court that it was not open to the jury to conclude that the Crown had not excluded as a reasonable possibility that any agreement between Wade and Jake was for the infliction of a lower level of violence on George than grievous bodily harm. If the jury had so concluded, it would have been entitled to return verdicts of manslaughter. Verdicts of manslaughter were therefore open on the evidence before the jury. The possibility of returning them, on the basis to which I have referred, ought to have been left to the jury."
I am satisfied that the jury at the 2019 trial reached verdicts of guilty of manslaughter for each Offender upon the basis identified by the Court of Criminal Appeal as being an available pathway to a manslaughter verdict for each Offender. The jury was not satisfied beyond reasonable doubt as to the identity of the person who stabbed Mr Garmo to death. The jury was satisfied beyond reasonable doubt that it was one or other of the Offenders, but could not say which one it was. Further, the jury was not satisfied beyond reasonable doubt that there was a joint criminal enterprise as between the Offenders involving an agreement between them to cause at least grievous bodily harm to Mr Garmo.
The remaining pathway to verdicts of guilty of manslaughter involved an agreement between the two men to cause a level of violence to Mr Garmo (which constituted an unlawful and dangerous act) falling short of grievous bodily harm. I am satisfied that it was upon this basis that the jury found each Offender not guilty of murder, but guilty of manslaughter. I will proceed to sentence each Offender upon that basis.
A consequence of this finding is that neither Offender can be sentenced upon the basis that it was he who actually stabbed Mr Garmo to death. Each Offender is to be sentenced upon the basis that they were parties to a joint criminal enterprise to cause injury falling short of grievous bodily harm to Mr Garmo.
This is the approach which the law requires given the verdicts of the jury in the circumstances of this case applying the principles stated by the High Court of Australia in GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [22]-[23]. Each Offender will be sentenced as a party to a joint criminal enterprise to cause physical harm to Mr Garmo falling short of grievous bodily harm, but not as a principal actor who stabbed Mr Garmo: GAS v The Queen at [22].
As the High Court observed in GAS v The Queen at [20], there is "an element of artificiality" in sentencing each Offender on this basis in circumstances where one or the other must have been the actual assailant. However, that is a necessary consequence of the verdicts returned by the jury at trial, with this being a prospect identified by the Court of Criminal Appeal as a potential outcome at a retrial where manslaughter was left to the jury.
That does not mean that each Offender should receive identical sentences. When sentencing persons for offences arising from a joint criminal enterprise, it is always relevant to refer to the particular conduct of each participant with a view to identifying the level of culpability for which each must be sentenced: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]-[162]. Further, there may be other features which distinguish the Offenders in their subjective circumstances.
In finding facts concerning the offences for the purpose of sentence, I will refer to aspects of the case which relate to the level of culpability of each Offender.

Facts of Offences

What follows is drawn from the evidence at the trial, much of which was not in contest. Background
The Offender Martinez, the Offender Tortell and Mr Garmo attended Bossley Park High School although they were not all in the same year. As at 14 February 2015, the Offender Martinez was 21 years old and the Offender Tortell was 18 years and 10 months old. Mr Garmo was 20 years of age.
Amongst the friends and associates of the Offender Martinez and Mr Garmo were the McVerry sisters, Jade and Krystal, and Christian Younan, all of whom had associated with each other since their school days. Issues Giving Rise to Conflict Between the Offender Martinez and Mr Garmo
Part of the background to the events of 14 February 2015 involved alleged criminal conduct on the part of Mr Garmo in 2014 in the Bossley Park area.
The officer-in-charge, Detective Sergeant Barnes, gave evidence at the trial that drive-by shooting-type incidents occurred on 22 May 2014 and 31 May 2014 directed to the family home of the Offender Martinez in Bossley Park. Although Mr Garmo was not charged with these offences, police believed that Mr Garmo had either carried out these offences or directed that they occur arising from some unidentified grievance he had with the Offender Martinez.
Based upon the evidence of Detective Sergeant Barnes, the trial was conducted upon the basis that police believed that Mr Garmo had committed or caused to be committed violent acts of this type directed towards the family home of the Offender Martinez.
The Offender Martinez did not give evidence at the trial or the sentencing hearing, so there is no account from him as to what the problems were between Mr Garmo and himself in 2014 and 2015.
At the sentencing hearing on 18 February 2020, Detective Senior Constable Robert Grigor gave evidence concerning these matters. He stated that on 31 May 2014, he attended an address in Bossley Park where the Offender Martinez and his family resided. On arrival, he observed the Offender Martinez standing out the front of the residence and he spoke to him. The Offender Martinez told the police officer that he had not been at home at the time of the shooting at the residence which was the reason for police attendance.
Detective Senior Constable Grigor asked the Offender Martinez "Who was home?". The Offender Martinez replied "No one". He was asked "Can you tell me anything about the shooting?" and the Offender Martinez said "Nah". He was asked "Do you want to provide a statement to assist police?" and he replied "No".
A Crime Scene Warrant Occupier's Notice was served on the Offender Martinez and the conversation continued between him and Detective Senior Constable Grigor: Grigor: "What did you get up to last night?". Martinez: "Went out". Grigor: "Well, what has happened?". Martinez: "Dunno". Grigor: "Did you root someone's missus or something?". Martinez: (laughing) "No". Grigor: "Well something has happened". Martinez: "I didn't call police. I don't want your help". Grigor: "I didn't say you did".
Later on the morning of 31 May 2014, Detective Senior Constable Grigor again returned to the Bossley Park home of the Offender Martinez, this time in the company of Detective Sergeant Barnes. The Offender Martinez told police that the home had been the subject of a drive-by shooting on 22 May 2014. The Offender Martinez stated that he did not report the shooting. He pointed out the damage to the house, being a hole in the front window and a hole in the door of the front bedroom. A further conversation took place between police and the Offender Martinez concerning the earlier incident: Grigor: "The one last week, when was that?" Martinez: "Thursday". Grigor: "What time". Martinez: "3.00 am". Barnes: "Were you asleep?". Martinez: "I wasn't home. I got home after it". Grigor: "What was it? It was just a single shot like a hole in the door?". Martinez: "Yeah". Grigor: "Like was the scattering?". Martinez: "Nah, it was a 22". Barnes: "There was some talk of a shotgun". Martinez: "Nah it was a 22". Grigor: "Did you look out the front on the ground". Martinez: "Nah there were no shell casings". Barnes: "The CCTV on the house?". Martinez: "It doesn't record bro, it just monitors".
In her evidence at the trial, Jade McVerry was asked if she knew if there was a relationship between Mr Garmo and the Offender Martinez to which she replied "I just knew that they both didn't like each other" (T164, 14 November 2019). She said that Mr Garmo had visited her house in Villawood in January 2015. Whilst there, Mr Garmo said that "he wanted the [Offender Martinez] dead". Jade McVerry did not tell the Offender Martinez what Mr Garmo had said (T164, 258).
Jade McVerry said that on an occasion during a visit to her mother's house, the Offender Martinez "wanted to find out where George hangs out", but she did not answer the question (T164). She stated that the Offender Martinez said not say why he wanted to locate Mr Garmo (T154).
What has just been summarised represents the totality of the evidence at the trial and the sentencing hearing concerning prior incidents and grievances which appear to have existed as between Mr Garmo and the Offender Martinez. The evidence does not disclose why there was a grievance between the two men in 2014 and 2015.
On the evidence, the Offender Martinez did not seek the assistance of police concerning the shooting incidents at his family's home. It is not open to the Court, for the purpose of sentence, to draw adverse inferences concerning the Offender Martinez in the sense of concluding in some way that he had been involved in some criminal activity connected with Mr Garmo which gave rise to the attacks upon the Martinez family home and his subsequent unwillingness to involve police in the investigations, despite the apparent threat which was directed to his own family residing in the house. Although it may be suspected that there was no innocent or benign explanation as to why the Offender Martinez took this approach at the time, this aspect cannot be utilised in an adverse fashion with respect to the sentencing of the Offender Martinez for manslaughter.
It is, however, a significant background fact to assess the events which unfolded on the night of 14 February 2015. The unchallenged evidence of Detective Senior Constable Grigor reveals that the Offender Martinez did not wish police to investigate these serious acts directed to his own family home. The Crown submitted that the Court should conclude that the Offender Martinez determined to take care of the matter himself with his aggressive pursuit of Mr Garmo on the night of 14 February 2015 to be viewed as a type of vigilante action on the part of the Offender Martinez. There is considerable substance in this submission. An Incident in late January or Early February 2015
On an evening in late January or early February 2015, the McVerry sisters met Mr Garmo and his girlfriend, Nicole David, and other friends at a park in Dashmere Street, Bossley Park.
Jade McVerry (T163-164) and Nicole David (T71) saw a black Lexus motor vehicle drive by whilst they were in the park with Mr Garmo saying that the Offender Martinez was driving the vehicle. A Chance Encounter Between the Offender Martinez and Mr Garmo on 14 February 2015
In February 2015, Tracy McVerry, the mother of Jade and Krystal, was living in Dashmere Street, Bossley Park. The Offender Martinez was friends with Tracy McVerry and her daughters. He called Tracy McVerry that day and asked if he could come over to give a duckling to Jade McVerry's young son as a gift.
The Offender Martinez and the Offender Tortell attended Tracy McVerry's home in Dashmere Street, travelling in the Offender Tortell's black Lexus vehicle.
Shortly before 10.00 pm on 14 February 2015, the McVerry sisters and Mr Younan were out having a drink in the Bossley Park area. The Offender Martinez called Jade McVerry and asked her to bring a McDonald's family box back to the house in Dashmere Street.
At 9.57 pm, the food was purchased from McDonald's at Wetherill Park Stocklands and the McVerry sisters and Mr Younan travelled in a Toyota Camry vehicle back to Dashmere Street.
Coincidentally, at about the time when the McVerry sisters and Mr Younan were returning to Dashmere Street, Mr Garmo and his girlfriend, Ms David, were walking along Dashmere Street heading towards McDonald's at Wetherill Park. Mr Garmo and Ms David stopped to talk to the McVerry sisters and Mr Younan.
This was a chance meeting occurring in benign circumstances, but with what turned out to be fateful consequences.
What happened thereafter involved a fast-moving chain of events arising from the unexpected presence of Mr Garmo outside the house in Dashmere Street at a time when the Offender Martinez and the Offender Tortell were present visiting Tracy McVerry.
The Offender Martinez observed Mr Garmo outside the house. The Offender Martinez picked up a kitchen knife from the house and walked outside. An altercation occurred on the footpath between the Offender Martinez and Mr Garmo in which Mr Garmo received a cut to the hand. It was this event which gave rise to the charge of reckless wounding against the Offender Martinez of which he was found not guilty by the jury.
The evidence indicated that the Offender Martinez approached Mr Garmo holding the knife and a melee occurred between the two men on the footpath. As might be expected, the accounts of those who were present during this incident varied. All were standing in the dark on the footpath when the melee erupted. 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 the Offender Martinez, whether the Crown had excluded self-defence having regard to the prior history between the Offender Martinez and Mr Garmo arising from the 2014 shootings at the Martinez family home. I am unable to conclude upon which basis the jury returned a verdict of not guilty on this count. The significance, for present purposes, is what happened next. Mr Garmo Flees on Foot with the Offenders in Pursuit
What followed in the subsequent minutes was largely not in dispute at the trial.
Mr Garmo 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. It is clear that Mr Garmo was fearful and was running away from the scene of the altercation. Mr Garmo was not looking for trouble nor was he wishing to instigate any further conflict at the time. I am satisfied that Mr Garmo did not possess any weapon at that time. He was, after all, walking with his girlfriend to have something to eat when the evening took this unexpected and terrible turn.
I am satisfied that Mr Garmo was fleeing from the Offender Martinez who wished to take aggressive action against Mr Garmo against the background of their dispute in relation to which he did not want a police investigation.
There is no evidence of any prior adverse history as between Mr Garmo and the Offender Tortell.
The Offender Martinez and the Offender Tortell got into the black Lexus in Dashmere Street and left the scene looking for Mr Garmo with the Offender Martinez driving the vehicle. In the meantime, Ms David, Mr Younan and the McVerry sisters travelled in the Toyota Camry looking for Mr Garmo to help him.
At 10.05 pm, Mr Garmo rang Chantelle David (Nicole David's sister), on his mobile phone telling her "Tell Nicole to get the fuck out of there".
At 10.07 pm, a resident in Dashmere Street, made a "000" call to police having observed the commotion in the street. Soon after, police responded to the "000" call, but could not locate anyone in the vicinity of Dashmere Street. That was because the Lexus and Camry vehicles containing the two groups of people had departed, as had Mr Garmo fleeing on foot.
At 10.07 pm, Nicole David used Jade McVerry's phone to call Mr Garmo and he told her that he was in Rimfire Close. The occupants of the Toyota Camry drove into Rimfire Close to pick up Mr Garmo.
Unfortunately, the Offenders in the black Lexus observed this happening. The Offenders (in the black Lexus) commenced pursuit of the Toyota Camry which, by this time, also contained Mr Garmo. Krystal McVerry was driving the Toyota Camry. She described the black Lexus in close pursuit behind her vehicle as she drove out of Rimfire Close into Dashmere Street, then Mimosa Road and then onto Mulligan Street, Bossley Park. The two vehicles were travelling at high speed.
I am satisfied that the Offender Martinez (who was driving the Lexus) was angry and agitated and intended to do harm to Mr Garmo. The Offender Tortell shared his intention, as well, with the two men agreeing to do physical harm to Mr Garmo short of grievous bodily harm.
Near the intersection of Mulligan and Barrington Streets, Bossley Park, the black Lexus cut off the Camry and the two vehicles came to a halt. Apart from the oral evidence of the persons in the Toyota Camry, there was CCTV footage (from nearby houses) also in evidence showing the movement of vehicles in the vicinity of Mulligan Street. In addition, a number of residents in Mulligan Street gave evidence of their observations of the movement of the vehicles and persons in the street as they left the vehicles.
Mr Garmo got out of the Toyota Camry and ran down Mulligan Street towards Lofty Crescent, Bossley Park. The Offenders both left the black Lexus, but the Offender Martinez returned a very short time later as the Lexus was rolling towards the front fence of a house in Mulligan Street. He applied the brakes and remained in the Lexus. The Offender Tortell continued to chase Mr Garmo on foot towards Lofty Crescent.
As Mr Garmo ran down the street with the Offender Tortell pursuing him, I am satisfied that the Offender 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.
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.
Meanwhile, the McVerry sisters, Ms David and Mr Younan travelled in the Camry in an unsuccessful attempt to locate Mr Garmo. Mr Garmo Reaches 8 Garnet Street, Bossley Park
A blood trail in Lofty Crescent and across fences and yards indicated that Mr Garmo had climbed the fence and moved through premises arriving in the rear yard of 8 Garnet Street, Bossley Park. He was clearly frightened and considerable physical exertion would have been required for him to complete the type of obstacle course that led to the place where he died. The physical demands of this process would have been heightened by the wound to his hand sustained in Dashmere Street.
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. The injuries were described by Professor Johan Duflou, the forensic pathologist who conducted the autopsy on Mr Garmo. It was his evidence that a wound in the vicinity of the heart was the likely fatal injury and that it would have likely caused a quick death.
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.
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.
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.
In this respect, I keep in mind that from the beginning of these events in Dashmere Street to their conclusion with the killing of Mr Garmo at 8 Garnet Street, some 12 minutes only passed. 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.
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.
At 10.12 pm, Jade McVerry attempted to call Mr Garmo without success. I am satisfied that Mr Garmo was already dead at this time.
At 10.14 pm, the Offender Martinez made a 30-second phone call to Krystal McVerry. I am satisfied that the Offender Martinez made this call telling Krystal McVerry to keep her mouth shut.
At 10.26 pm, the Offender Martinez made a similar call to Jade McVerry, also telling her to keep her mouth shut.
I am satisfied that the Offender Martinez and the Offender Tortell were both in the Lexus vehicle after Mr Garmo was killed. They travelled together in that vehicle to different locations and cell tower evidence indicated that they were moving towards their respective residences in the early hours of 15 February 2015.
At about 4.15 am on 15 February 2015, police attended an address in Bonnyrigg and located the Lexus motor vehicle which was taken into police custody.
After 3.00 pm on 15 February 2015, police attended the Offender Tortell's premises and observed a scratch on his neck.
On 24 August 2015, a conversation between the Offenders was recorded by a surveillance device lawfully obtained by police at a time when the two Offenders were sitting in a vehicle together. This evidence was before the jury: R v Tortell; R v Martinez (No. 5) [2019] NSWSC 1665.
Statements made by each Offender during this conversation constituted evidence of consciousness of guilt of their criminal involvement in the killing of Mr Garmo. However, the evidence did not assist on the question of which Offender was the assailant.
It is not necessary to recite other aspects of the evidence for the purpose of making necessary findings of fact for the purpose of sentence. Arrest and Charging of Offenders
On 27 August 2015, each of the Offenders was arrested and charged with the murder of Mr Garmo.
Both Offenders have remained in custody from that date, so that the sentences to be passed should commence on 27 August 2015. Conclusions Concerning the Killing of Mr Garmo
The following conclusions should be expressed with respect to the events surrounding the killing of Mr Garmo: 1. 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; 2. the evidence did not reveal any history of animosity as between the Offender Tortell and Mr Garmo; 3. 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; 4. 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; 5. 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; 6. 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; 7. 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; 8. 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; 9. 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; 10. 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; 11. after Mr Garmo was killed, the two Offenders travelled together in the Lexus vehicle for a considerable period before returning to their homes; 12. the knife used to inflict the fatal injuries has never been found.

Subjective Circumstances of the Offender Martinez

The Offender Martinez was born in October 1993 and was 21 years old at the time of the offence. He is now 26 years old.
The Offender Martinez has a prior criminal history. On 19 July 2011, he was dealt with at the Parramatta Children's Court for an offence of aggravated robbery and using corporal violence for which he received a suspended 12-month control order. On the same day, good behaviour bonds were ordered for offences of assaulting an officer in the execution of duty and resisting an officer in the execution of duty.
On 14 September 2012, the Offender Martinez was fined for two offences of intimidating a police officer in the execution of duty.
On 13 January 2014, he was ordered to perform 100 hours community service for an offence of assault occasioning actual bodily harm.
Reports of Dr Stephen Allnutt, psychiatrist, dated 31 July 2017 and 27 January 2020 were tendered in the defence case on sentence. To the extent that those reports contain an account of the Offender Martinez with respect to the offence, I attach no weight to that account in circumstances where the Offender Martinez did not give evidence at the trial or on sentence.
Dr Allnutt stated that the Offender Martinez did not manifest symptoms of a diagnosable active psychiatric disorder. Dr Allnutt referred to a level of anxiety which the Offender Martinez experienced having spent some five years in custody whilst these proceedings have been on foot.
The Offender Martinez gave Dr Allnutt a history of a troubled upbringing in a household marked by parental alcoholism and domestic violence. I give some weight to this account, but note that it is not corroborated independently and was not the subject of evidence from the Offender Martinez.
A number of certificates were tendered which demonstrated that the Offender Martinez had undertaken TAFE courses whilst in custody in automotive retail service and repair training, in outdoor power equipment technology and in carpentry.
However, the Offender Martinez has also committed a number of disciplinary offences whilst in custody since 2015, including fighting (2016, 2018), possession of a drug (2017), failing or refusing a drug test (2017, 2018 (twice)), possession of an offensive weapon (2017 (twice)) and disobeying a direction (2017). Making all due allowance for the correctional setting, these offences do not assist the Offender Martinez.
Also tendered on sentence was a letter from the Offender Martinez' aunt and a family friend who describe him in favourable terms.

Subjective Circumstances of the Offender Tortell

The Offender Tortell was born in March 1996. He was 18 years and 10 months old at the time of the offence. He is now almost 24 years of age.
The Offender Tortell has no prior criminal history.
A report from Julie Dombrowski, psychologist, dated 13 February 2020 was tendered in the defence case on sentence. In circumstances where the Offender Tortell did not give evidence at the trial or on sentence, I attach no weight to that part of the report which contains his account of events giving rise to the conviction.
Ms Dombrowski states that she assessed the Offender Tortell in June 2017 and again in February 2020. She expresses the opinion that the Offender Tortell is not inherently antisocial and his offending "can be explained by social immaturity and poor judgment (and possibly peer pressure) fuelled in part by an episode of heavy alcohol use rather than a flagrant disregard for the law". She expresses the opinion that his "criminogenic treatment needs are therefore minimal".
Also tendered in the defence case on sentence were certificates concerning the Offender Tortell's history and progress at Bossley Park High School, from which he graduated in September 2013. A reference dated 7 November 2013 from the then principal of Bossley Park High School described the Offender Tortell in favourable terms.
A number of certificates were tendered demonstrating that, whilst in custody, the Offender Tortell had completed TAFE certificate courses in business as well as completing the Young Adult Satellite Program organised by the NSW Department of Corrective Services. A letter dated 1 March 2019 from the facilitator of that program describes the Offender Tortell's involvement in that program in positive terms.
However, the Offender Tortell also has a number of disciplinary offences in custody. These include possession of a drug (2016 (twice)), failing to comply with correctional centre routine (2017) and receiving an unauthorised article from a visitor (2017). These offences do not assist the Offender Tortell although they have not been recent.
Also tendered in the defence case was a letter dated 11 February 2020 from the mother of the Offender Tortell. She confirmed that, upon his release from custody, he will again be residing with his mother and sister at their address at Edensor Park.
A letter dated 3 February 2020 from Shannon Tortell, his first cousin, contains an offer of employment as an apprentice automotive mechanic when the Offender Tortell is released from custody.
Finally, a letter from Christopher Isika, the former Chaplain at Macquarie Correctional Centre at Wellington, speaks highly of the Offender Tortell and his involvement in activities and courses at that correctional centre in 2018 and 2019.

Objective Gravity of the Offences

It has been said that manslaughter can take an infinite number of forms with varying degrees of gravity: R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 at [133]-[134].
Submissions were made at the sentencing hearing concerning findings to be made with respect to the objective gravity of the offence committed by each Offender. It was argued for each Offender that the other Offender had played a greater role in the offence giving rise to the manslaughter verdicts.
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: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]-[113].
It was the Offender Martinez who took immediate steps on the evening of 14 February 2015 to warn off the McVerry sisters, with this being indicative of his role as the prime mover in the attack upon Mr Garmo.
The Offender Tortell was supporting the Offender Martinez who was the one with a grievance and desire to further harm Mr Garmo. The Offender Tortell did not have an independent motive to cause physical harm to Mr Garmo.
Each Offender was involved in the resolute pursuit of Mr Garmo and did not withdraw from that process. They had agreed to cause physical harm to Mr Garmo falling short of grievous bodily harm. The Offenders were the aggressors with Mr Garmo bleeding and in full retreat, fleeing from the two Offenders who were in hot pursuit.
Whatever lay behind the incident to the point where Mr Garmo fled, there was no need for the Offenders to chase him for the purpose of inflicting further injury. I approach the sentencing of the Offenders in this respect upon the basis that what was intended was to cause further gratuitous injury to the already injured and frightened Mr Garmo.
The Crown submitted that the offences of manslaughter were aggravated under s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 as the offence was committed in company. I do not accept the Crown submission that this aspect constitutes an aggravating factor under that provision. The fact that the two Offenders were acting in company was an integral part of the foundation for each of them being convicted of the offence. This was a Crown case based upon joint criminal enterprise and involved the two men acting together in their pursuit of Mr Garmo as described in these sentencing remarks. That was an inherent part of the Crown case leading to their conviction for manslaughter.
In this case, the liability of each Offender for the crime of manslaughter arose because of the existence of the joint criminal enterprise between them. In my view, the statutory aggravating factor in s.21A(2)(e) does not apply in this case: Tabbah v R [2019] NSWCCA 324 at [113]-[116].
That said, I accept that the fear experienced by Mr Garmo was heightened by the fact that there were two men pursuing him using, at times, different means of pursuit on foot or in the Lexus.
The objective gravity of the crime of manslaughter committed by each Offender was of a high order. The two Offenders pursued Mr Garmo to harm him and he died as a result of their criminal acts.
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.
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: KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[26].
These aspects will be taken into account in the sentences to be passed for each Offender.

Offers to Plead Guilty to Manslaughter

As mentioned earlier, each Offender was charged with murder on 27 August 2015. Both men proceeded to trial before Mathews AJ in 2017 and were found guilty of murder. The murder convictions were overturned on appeal in 2019.
The trial of the Offenders was listed to commence on 11 November 2019.
On 6 September 2019, the solicitors for the Offender Tortell wrote to the Crown offering (for the first time) to plead guilty to manslaughter subject to the drafting of mutually agreeable facts.
On 16 October 2019, the Crown rejected that offer.
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.
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.
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.
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.
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.
Submissions were made on behalf of each Offender that some discount should be allowed in the circumstances of this case.
The principles to be applied in circumstances such as this have been considered recently in Magro v R [2020] NSWCCA 25 at [58]-[64].
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.
I take into account that the offers to plead guilty were made on the last working day before the trial.
A discount of 5% will be applied for each Offender as a result of their offers to plead guilty to manslaughter before the trial.

Contrition and Remorse

Neither Offender has demonstrated contrition or remorse for his offence.
To the extent that either Offender has expressed regret (and there is no evidence from either Offender in that respect), any sentiment of that type should be approached as regret for the consequences for himself flowing from his apprehension for the offence: Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257 at [52]-[54].

Prospects of Rehabilitation and Risk of Reoffending

I am satisfied that a finding should be made that the Offender Tortell has good prospects of rehabilitation and a low risk of reoffending. He committed this offence when he was just short of 19 years old. That said, the gravity of his offence was substantial and reflected a sustained and cruel pursuit of a wounded man who was trying to get away from his pursuers.
I am satisfied that the Offender Tortell has made constructive use of his time in custody and that there is every prospect that he will not come into conflict with the criminal law again.
The Offender Martinez was older at the time of the offence and has a criminal history which does not assist him on sentence. It was the Offender Martinez who had a history of animosity with Mr Garmo, which serves to explain why it was that the two Offenders pursued Mr Garmo for the purpose of causing him even further injury at a time when Mr Garmo was attempting to escape and not engage with the Offenders in any conflict.
A more guarded approach should be adopted concerning the Offender Martinez' risk of reoffending and prospects of rehabilitation. However, he has made constructive use of his time in custody which should assist in this respect. I conclude that he has reasonable prospects of rehabilitation and a moderate risk of reoffending.

Absence of Victim Impact Statement

No victim impact statement was furnished to the Court on behalf of the family of Mr Garmo.
The absence of a victim impact statement given by a family victim does not give rise to any inference that the offence had little or no impact on the members of Mr Garmo's immediate family: s.30E(6) Crimes (Sentencing Procedure) Act 1999.

Specific and General Deterrence

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.
Specific deterrence should also be reflected on sentence, more so in the case of the Offender Martinez who had a history of offences before the commission of this offence, based as it was upon his desire to punish Mr Garmo in circumstances which led to his death.

Determining Appropriate Sentences

All crimes of manslaughter are serious as they involve the criminal taking of a human life: R v Hill (1981) 3 A Crim R 397 at 402. The importance of denunciation in sentencing for manslaughter has been stressed: R v Nguyen [2005] NSWSC 600 at [23].
The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences or tariff for manslaughter: Tabbah v R at [128]. Nor do I consider that any real assistance is provided in this case by reference to sentencing decisions, although I have considered the decisions to which the Court was taken.
I have had regard to all objective and subjective factors relating to the sentencing of each Offender together with the other principles and aspects of the case to which mention has been made in these sentencing remarks.
The non-parole period in each case should reflect the minimum period which each Offender should serve in custody having regard to all factors relevant to the imposition of sentence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [57], [65].
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.
In all the circumstances, after application of the 5% discount (with some rounding), I am satisfied that a sentence of imprisonment for eight years and five months should be imposed in the case of the Offender Tortell. Having regard, in particular, to his youth at the time of the offence, I find special circumstances so that some modification should be made with respect to the relationship between the head sentence and the non-parole period. A non-parole period of five years and six months should be fixed in his case with the sentence to date from 27 August 2015.
As each Offender has been convicted of manslaughter, a "serious violence offence" for the purpose of s.5A(2A)(b) Crimes (High Risk Offenders) Act 2006, the Court is required by s.25C of that Act to warn each Offender of the existence of that Act and its potential operation in the future concerning each Offender. I ask the solicitor for each Offender to undertake that task on the Court's behalf.
Would each Offender please stand.
Wade Martinez, for the manslaughter of Gewargis Garmo, I sentence you to imprisonment for 10 years and six months comprising a non-parole period of seven years and seven months commencing on 27 August 2015 and expiring on 26 March 2023, with a balance of term of two years and 11 months commencing on 27 March 2023 and expiring on 26 February 2026.
The earliest date upon which you will be eligible for release on parole is 27 March 2023.
Jake Tortell, for the manslaughter of Gewargis Garmo, I sentence you to imprisonment for eight years and five months, comprising a non-parole period of five years and six months commencing on 27 August 2015 and expiring on 26 February 2021 with a balance of term of two years and 11 months commencing on 27 February 2021 and expiring on 26 January 2024.
The earliest date upon which you will be eligible for release on parole is 27 February 2021.

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: 20 March 2020

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