R v Micheal Martin

An assessment of the objective criminality of the crimes

1. To determine whether it is appropriate to impose a sentence of life imprisonment for the third count, and to consider the correct application of the various standard non-parole periods in accordance with established authority, [2] it is necessary to make an assessment of the objective seriousness of the offending. In particular, it is useful to see where the offences lie on a scale of seriousness relative to other offences charged under the same legislative provisions. For the purpose of the standard non-parole period this assessment must be made without reference to matters subjective or personal to the offender.
2. For the purpose of this assessment, I am satisfied beyond reasonable doubt of the following facts.
3. Mr Martin Snr was an alcoholic and a drug user for many years. As a result he was a neglectful father to the offender. The extent to which he was abusive is a little difficult to say as the history is largely based on the account of Mr Martin which, on critical facts, was rejected by the jury. Further, and independent of the jury's verdict, I found him to be a witness of very little credit. However, there was some support for aspects of the history provided by the offender in his police interviews, in his evidence at trial and in his consultation with a psychiatrist for the purpose of preparing a report on sentence. In particular, there is evidence of a statement made by Mr Martin to police when he was just 13 years of age. That statement alleged that he had been subject to serious assaults at the hands of the deceased when he was a child. [3] There was also evidence from the deceased's mother (the offender's grandmother) that she understood that Mr Martin Snr was mistreating him and inflicting violence upon him. [4] Jenine Bryce (the deceased's former partner and mother of his two younger children) also gave evidence that she saw the deceased subject his eldest son to "very bad verbal abuse" and that he was "utterly delinquent" as a father. [5]
4. This history explains the offender's statements to various witnesses that he "hated" his father. [6] I am satisfied the offender was exposed to drug use and the criminal milieu when he was a child. There was ample evidence in support of the offender's account in this regard and it also explains Mr Martin's rather sanctimonious attitude to drugs and drug users. [7]
5. As a result of the highly dysfunctional relationship between father and son, the pair was estranged for a substantial period of time. In late 2013, Mr Martin re-established contact. I am unable to determine his motivation for doing so at that time. However, by the time he commenced to take out insurance policies over his father's life, I am satisfied beyond reasonable doubt that he had in his mind the possibility that he may arrange to have him killed or to murder his father himself.
6. On 2, 3 and 21 February 2014, the offender took out three insurance policies over his father's life. Two of these policies, with a total value of $1.5 million, were to benefit the estate of Mr Martin Snr. The offender was a likely beneficiary, probably to the extent of one third (with the other two thirds going to the deceased's two younger children). The third policy, with a value of $1 million, was to benefit Mr Martin himself. I am satisfied that these policies were taken out without the knowledge of the deceased or the other children. Apart from the evidence of the offender himself, there is no direct evidence that anybody apart from his wife was aware of these policies. I do not accept Mr Martin's evidence on this issue. He lied to the police about this subject until his lies were plainly exposed. He also made enquiries with at least one of the insurance companies pretending to be his father. [8] In making this finding, I have considered the evidence of Mitchell Martin (the deceased's second son) that his father told him that he would get a lot of money if the latter died but I am satisfied that this was a reference to a funeral benefit policy. A recorded conversation between the deceased and an insurance representative tends to support that finding, and is inconsistent with the deceased wishing to take out further insurance. [9]
7. Accordingly, I am satisfied by the end of February 2014 Mr Martin planned to kill his father. The evidence established that at the relevant time Mr Martin and his wife were in somewhat dire financial circumstances. [10] Avarice was Mr Martin's primary motivation although I accept that part of his motivation stemmed from his anger and disappointment arising from the neglect and abuse he suffered as a child and a teenager. I accept that the early abuse, and its psychiatric sequelae, played a part in the offender embarking upon such a cold-blooded and calculated plan.
8. On 6 April 2014 the offender, his wife and children met the deceased for lunch at a hotel in Murwillumbah. After lunch, the offender dropped off a large bottle of homemade whiskey at his father's flat, leaving it with Mr Manning. The offender knew his father was an alcoholic and that it was likely that he would drink excessively, thus making him a more vulnerable target for the attack that was to occur later that night.
9. Mr Martin drove his wife and children home to Esk in Queensland. He then drove back to Murwillumbah and carried out the first and second offences on the indictment. I am satisfied that the offender attempted to set up a false alibi by making this journey. The way in which the case was put to the jury means that the verdicts necessarily determined that Mr Martin was personally involved in the attack on his father and Mr Manning. I am satisfied beyond reasonable doubt that the offender acted with at least one, and possibly two, other people in carrying out the attack. [11] The attack occurred in the home of Mr Manning and Mr Martin Snr. I am satisfied that the attack involved the use of a weapon or weapons, capable of inflicting blunt force trauma. Both victims sustained life-threatening injuries.
10. Mr Martin Snr received an injury to his left eye resulting in a permanent loss of vision along with injuries to his chest causing the collapse of both lungs, a penetrating injury to his neck and fractures of the cheek bones, zygoma, mandible and nasal bones. He was placed on life support to ensure his survival. Complications in his treatment resulted in "dead bowel", potential renal failure, septic shock and the need for dialysis. He remained in intensive care until 9 May 2014, remained in hospital until 2 June 2014 and continued his recovery under the care of his ex-girlfriend (Jenine Bryce) until 11 June 2014. But for the medical treatment, Mr Martin Snr would almost certainly have died.
11. Mr Manning received fractures of the collarbone, ribs, nose, maxilla and zygoma. He had a collapsed lung and bruising to the root of his neck. His ear was "cut off and the bottom side was hanging down". He was on life support for four days and in a coma for six days. He lost about 20kgs while he was in hospital. He would probably have died without emergency medical treatment.
12. The attack on Mr Martin Snr was planned and premeditated although I do not find, for the purpose of s 21A of the Crimes (Sentencing Procedure) Act that it was part of a "planned and organised criminal activity". [12] It took place in the victim's own home, in company, involved the use of weapons, and was carried out for financial gain on a vulnerable victim. [13] The attack on Mr Manning was carried out because he happened to be present at the time of the attempt to kill Mr Martin Snr. I accept that he was asleep (and thus vulnerable) and in his own home when he was attacked. [14]
13. The offence against Mr Manning falls within, or just below, the middle of the range of objective seriousness of offences charged under s 33 of the Crimes Act. The attempted murder of Mr Martin Snr falls substantially above the putative mid-range for such offences.
14. During the deceased's recovery, Mr Martin visited him in hospital on a number of occasions. He was well aware of his father's suffering and the extreme consequences of his actions on 6-7 April 2014. I accept that his feelings were mixed and complicated during this period and that he may even have experienced some guilt for his behaviour. [15] Even so, I am satisfied that the offender never relented from his determination to kill his father in order to profit from the insurance policies. This finding is supported by Mr Martin's actions in the days after his father left the home of Ms Bryce.
15. On 11 June 2014, the offender picked his father up from Ms Bryce's home at Beerwah near the Glasshouse Mountains where he had been recovering from the April attack. The pair travelled to the offender's home in Esk and stayed in the family home that night. The following day, 12 June 2014, the offender drove his father back to Murwillumbah under the pretext of cleaning up the flat that remained blood stained and in a messy state after the April assault.
16. The two men dined at a local hotel and then returned to the premises. At some stage Mr Martin attacked his father with a bladed weapon causing multiple penetrating injuries, including a chest wound which penetrated his heart (pericardial sac) and caused his death. [16] I am satisfied that the weapon used was a katana or samurai sword. This finding is based on the whole of the evidence including: 1. The nature of the weapon compared with the number and nature of the wounds. The wounds included both incised (or slashing) wounds as well as stab wounds. A katana is a weapon capable of inflicting both types of injuries and able to be used in both a slashing and a stabbing motion. 2. Mr Martin was trained in the use of the katana. 3. Mr Martin owned a katana. 4. Mr Martin gave a false account as to what happened to his Katana. 5. An independent witness saw somebody walking away from the scene carrying an item that was generally consistent in appearance with a sword.
17. The Crown Prosecutor faintly submitted that the attack involved "gratuitous cruelty." [17] I cannot accept this submission. As callous and brutal as the attack was, there is little (if any) evidence to support the proposition that it was carried out sadistically, or with the intention of inflicting pain for its own sake, or for the attacker to derive pleasure from the infliction of pain. Rather, the purpose of the attack was to kill and that purpose appeared to be carried out with some precision and determination. There is no evidence that the attack lasted for a very long time.
18. After the assault, the offender staged the scene in such a way that he could assert that he was also the victim of a "home invasion". He was found by a neighbour bound with tape near the stairs up to his father's apartment. He asserted that a number of assailants attacked him and his father. He said he thought his father was dead. He maintained this version of events in his initial conversations with police officers who attended the scene, in interviews over the following weeks and months, in communications with the insurers and in his evidence before the jury. There is no doubt, based on the evidence and the verdict of guilty in relation to count 3, that his version was fabricated. It is likely that the offender had some assistance in staging the scene and disposing of the weapon but there is no suggestion that the murder itself was committed in company and there is no need to work out exactly how Mr Martin executed his plan.
19. The offence was committed for financial gain. It involved a brutal attack on a vulnerable man in the victim's own home. It was a premeditated and planned execution. There can be little doubt that, objectively, the offence was close to the most serious examples of homicide. The offence was carried out with a cold-blooded determination scarcely imaginable to ordinary members of the community guided by moral and ethical standards inherent in most human beings.
20. For reasons to which I will presently turn, I am not persuaded that Mr Martin's objective criminality is reduced by reference to the alleged provocation arising from the actions of his father many years earlier although I am persuaded that his moral culpability is diminished as a result of his depressive illness which, more probably than not, was caused by his childhood deprivation and the neglect and abuse at the hands of his victim.
21. For the purpose of the application of the standard non-parole period, I record my assessment that the crime charged in count 3 falls substantially above the middle of the range of objective seriousness for all offences of murder. The matters that aggravate the objective criminality of the offence in particular are the fact that the offence was committed for financial reward, the vulnerability of the victim who was still recovering from the earlier attack and the fact that the offence was committed in his own home. There are a number of other aggravating features (for example the use of a weapon). However, those matters are taken into account in an assessment of the objective criminality and are facts commonly associated with offences of this kind. They ought not in the circumstances be used further to aggravate a proper assessment of the offender's criminality.
22. There are a number of mitigating features in this case and I will turn to those presently. First I would like to speak to the victims.

The impact of the crimes on the victims

1. MM was the youngest child of the deceased. There is to be no publication of material that might identify her [18] . She was just 14 years old at the time of the killing. She read a statement to the Court and was very distressed, crying throughout the ordeal. However, she soldiered on bravely. MM expressed no rancour to the offender but focussed on the impact her father's murder has had on her. She said the killing of her father nearly destroyed her. She spent many months in a state of depression, engaged in self-harm and came close to taking her own life. She watched her father recovering after the first assault and was resolved to build a better relationship with him. Then his life was taken away and she is left without a father to celebrate and share in her achievements. She no longer gets joy at Christmas, birthdays and other special occasions. She could not take part in the father and daughter dance at her school formal. She knows that she will miss her father for the rest of her life and that he will not be there for her major life events. She has uncomfortable conversations with people when they ask about her parents. She cherishes a small gift her father gave her when she was young.
2. The impact of this crime has been devastating on MM who remains, even now, a young woman having difficulties processing these tragic and momentous events.
3. MM you have my deepest sympathies. I know that nothing I say or do can ease your suffering and confusion. I hope the pain will go away with time but I fear you will never really get over such an enormous event. I hope the end of these criminal proceedings will help you to obtain some closure on this awful time of your life.
4. The Crown made no application under s 28 (4) of the Crimes (Sentencing Procedure) Act. However, in every case of homicide the family and friends of the deceased are left shattered and confused. Sentencing judges must always keep in mind that all human life is sacred and that the law requires punishment that vindicates the dignity of the victim and is considerate of those left behind to grieve and to try to pick up the pieces of their shattered lives.
5. Mr Manning, who became a victim because he was in the wrong place at the wrong time, also provided a victim impact statement. Apart from the really serious physical injuries he suffered, he has post-traumatic stress disorder and is suspicious of everyone. He can't go to restaurants. He is fearful of crowds. He trusts no one. He did not think he would survive the assault and the impact on him, both physical and psychological, is likely to last his whole life.
6. Mr Manning also has the sympathy of the Court. I have taken into account his injuries and suffering as part of my assessment of the objective criminality involved in the offence. However, because grievous bodily harm is an element of the charge, it is not a matter that further aggravates the offence under s 21A(2)(g) even though the harm done to Mr Manning was self-evidently substantial.

Mr Martin's personal history and mitigating features

1. Mr Martin was 25 years old at the time of the offences. He is now 28 and will turn 29 in late March of this year. At the time of the offences he was a married man with young children. The relationship, as I understand it, has now dissolved. No submission was made that the children's situation was so exceptional that it should impact on the proper exercise of the sentencing discretion.
2. In 2008, a Magistrate in Queensland fined him without recording a conviction for an offence of common assault and an offence described as dangerous conduct with a weapon. In 2011, he was fined without conviction and placed on an 18 month good behaviour bond for offences of counterfeiting, dishonestly obtaining property and unlawfully possessing a weapon. The details of those offences are scanty. I am prepared to act on the basis that he has no significant record of prior offences. This is a mitigating factor. [19]
3. Those offences, and his dishonest interactions with the insurers leading up to the present offences, make it difficult to find that he was a person of good character. However, the evidence at the trial established that he was in full-time employment and regarded by his supervisors as highly motivated and hard working. His neighbours and martial arts instructors seemed to think highly of him. On balance I am satisfied that he was a person of good character. [20]
4. The offender told the police, and confirmed in his evidence, that the deceased was a neglectful and abusive father. As I have said, his evidence received some support in the form of a contemporaneous police statement made when he was 13 years old and in the evidence of his grandmother, Ms Bryce and his half-siblings [21] . I accept that the offender was subject to serious assaults, verbal abuse, neglect and exposure to drugs and criminals during his formative years. I also accept that he was exposed to the aftermath of the suicide of a friend of his father in 2001 although his memory of that incident was not perfect. I am unable to act on two of the more extreme aspects of the history of abuse to which Mr Martin deposed. I simply do not know whether, as he alleges, he was subject to sexual abuse by one of his father's friends and was exposed to a savage murder committed by his father. Even so, the evidence of the abuse, violence and neglect is otherwise compelling.
5. On the basis of this evidence, it was submitted that I should find that the "offender was provoked by the victim". [22] While the jury rejected the reasonable possibility of "extreme provocation", it is still open to find provocation as a mitigating factor even if the technical requirements of provocation are not established. However, I cannot accept on balance of probabilities that the offender acted under provocation. The evidence that the offender lost self-control is scanty and unconvincing. In a letter to his wife, apparently written shortly before his arrest, the offender said: [23] "After that trip to Nanna and Pa's and that night thereafter, I feel so guilty, but not for what happened but for the way I let myself lose control. 25 years of torture from these people led me to do the unthinkable. I let myself lose control and it scared me. Not at what I did but the mere fact that the animal side got the better of me. I know for a fact that I can control myself every other time. But for those few minutes, I let my emotions control everything I did and the result could be seen. I was a very hurt man who had been hurt by the very person who should have loved me the most but caused me so much pain."
6. The context of this passage, and the reference to the trip to Nanna and Pa's, makes it clear that it was a reference to the incident that occurred in April. As to the night of the murder, Mr Martin told his wife in the letter: "I had a choice that night. I could have quite easily packed up and brought him home but I wanted to ease his pain. But was that my place [?]. I now know it wasn't but I felt at the time that I had caused every bit of his pain for the last 25 years so I carried through with my plan. As I said, I'm too good a person to be professional and let that demon be released again. I can't explain how scared that makes me and from that morning on, I vowed to never let myself lose control ever again." [24]
7. He later apologised to his wife and expressed "the regret I have about losing control last year with those two events." [25]
8. In the face of the evidence of the planning involved in the murder I cannot accept that this discursive and somewhat self-serving letter establishes (on balance) that Mr Martin lost self-control at the time he killed his father. I am satisfied that the offender took a weapon with him and drove from Esk in Queensland to Murwillumbah with the intention of killing his father. He had raised the insurance policies months earlier and made inquiries as to the circumstances in which the insurer would pay out if his father was killed.
9. Another factor militating against a finding of provocation is the length of time between the provocative conduct and the murder and the number of intervening events. This is not determinative but it militates against the finding urged by counsel for the offender. The assaults of which the offender complained to police took place in 2003, more than ten years earlier. I accept there may have been further provocative conduct in the intervening years but there was a lengthy period of separation and it was the offender who renewed contact in the latter part of 2013.
10. In the circumstances, and based on all of the evidence, I not satisfied that the offender was acting under the provocation of the victim.
11. However, the abusive relationship is relevant in another way. I accept that the offender was suffering from a depressive illness in the period leading up to the offences. He made attempts on his own life in late 2013 and 2014. In around March 2014 a doctor referred him to a psychologist. The psychologist gave evidence at the trial that he was "highly stressed, quite anxious and somewhat depressed." She diagnosed him as suffering from post-traumatic stress disorder (PTSD) and understood the cause was that he "had a terrible, abusive childhood relating to his dad." [26] A psychiatric report tendered on sentence discounted the diagnosis of PTSD because he did "not present with any avoidance of situations relating to his past traumatic experiences". [27] However, Dr Farrar diagnosed Mr Martin with a depressive disorder. The history of suicide attempts is strongly supportive of this diagnosis.
12. The weight to be afforded to the evidence of both experts must be considered in light of the fact that the offender was not honest in providing his history. He told Ms Lawson that his father was assaulted and later killed without mentioning his own involvement in those attacks. He denied his involvement in the murder when he consulted Dr Farrar. As a result, Dr Farrar was unable to establish any "nexus" between the depressive illness and the commission of the offences.
13. However, I am satisfied based on the history (particularly of suicide attempts), his presentation to Ms Lawson and the opinion of Dr Farrar (who was not cross-examined) that the offender suffered a serious depressive illness at the time of the commission of the offences. In spite of Dr Farrar's appropriately circumspect approach to whether there was a nexus between the psychiatric condition and the offending, I infer that there was such a link, albeit perhaps an indirect one [28] . The abuse and neglect he suffered was at the hands of his father. It occurred when he was at a formative stage of his development. His exposure to drugs and to criminals no doubt impacted on his morality and psychological development. This is not based on speculation but on the inferences reasonably arising on the whole of the evidence. It was this abuse and neglect that Ms Lawson considered to be the "trauma" at the heart of his psychological condition. It caused his depression. It is difficult to explain the offender's conduct from February to June 2014 otherwise than by reference to his psychiatric state. It is not any coincidence that the target of his crimes was the man he held responsible for his difficulties.
14. I accept the Crown Prosecutor's submission that this evidence does not impact in any substantial way on the requirement that the sentence contain a significant component of both general and specific deterrence. I also accept that there is no evidence that the offender's depressive illness will make his time in custody more onerous. However, I do accept that his moral culpability is somewhat diminished as a result of the combination of the childhood trauma and consequent depressive illness.
15. It is also relevant to an assessment of whether the offender is unlikely to offend again or, looked at from the other direction, whether he represents a danger to the community. On those issues, I am unable to make any positive finding one way or another. The length of the sentence is such that it would be purely speculative to make any positive determination. However, the Crown properly accepted that the nature and perpetrator of the abuse and the target of the assault was such that the offences could properly be described as "somewhat situational". [29] For that reason I do not find, adversely to Mr Martin, that he will necessarily represent a danger to the community on his ultimate release although the gravity and heinousness of his crimes means that such a finding would be open. Equally, I am not satisfied on balance of probabilities, that Mr Martin has good prospects of rehabilitation or that he is unlikely to re-offend. [30]
16. A final matter said to be mitigating is the extent of pre-trial disclosure. [31] I am not satisfied that there should be any reduction in the appropriate sentence based on this factor. Insofar as the Crown may have made any concession in this regard, I am unable to accept such a concession. Any useful pre-trial disclosure was minimal. The offender ran a false alibi on counts 1 and 2 and maintained that he was the victim, not the perpetrator, on count 3. The trial was conducted with appropriate vigour by skilful and experienced counsel. While Mr Martin is not to be punished for conducting his defence, nor should he receive any reduction in his sentence because he made self-evident concessions and did not contest every point.

Equal justice: proportionality and the sentence imposed on Candace Martin

1. Candace Martin was the offender's wife. She pleaded guilty to the attempted murder of her father-in-law and for being an accessory after the fact to the murder. On 3 November 2017, she was sentenced to a total effective sentence of 9 years with a non-parole period of 4 years. [32] For the attempted murder she received a sentence of 7½ years with a non-parole period of 2½ years although the non-parole period was reduced as a result of the accumulation and other special circumstances. The "starting point" for the attempt murder was 10 years and she received a total discount of 25% for her late plea of guilty and offer of assistance.
2. In Mr Martin's sentencing case, experienced counsel for each side took diametrically opposed positions. The Crown Prosecutor submitted that there was no parity issue at all while Mr Wendler seemed initially to suggest that the same sentence (or starting point) was appropriate. Neither of these extreme positions should be accepted. Rather, in sentencing Mr Martin, the sentence imposed on his co-offender and wife (and in particular the starting point before discount) must be taken into account and, giving proper allowance for relevant differences between the cases, the sentences should be in due and fair proportion to each other. [33] That is the correct operation of the fundamental principle of equal justice.
3. There is always a complication in the application of such principles when different evidence was presented in each case. On any view, there was a significant difference between the roles of the offenders. Candace Martin's role - providing a false alibi - was important in emboldening her husband and in facilitating his actually carrying out the attempted murder. However, each stood to gain financially from the insurance policies and I did not accept her evidence as to her state of knowledge and motivation. They were both part of a joint criminal enterprise. A further major distinction between the cases is that Candace Martin was responsible for four children under 10 years of age including a baby of just 9 months. The children had medical and other difficulties. I indicated at [84] that the sentence imposed might otherwise be seen as being unduly lenient.
4. The sentence imposed on Mr Martin takes account of these principles and the relevant differences between the cases. In doing so, there has been some moderation in the sentence for the attempted murder.
5. A final observation is that this issue is somewhat academic because of the length of the sentence to be imposed on the murder count. If a life sentence is imposed, the other sentences will necessarily be concurrent. If a determinate sentence is imposed, the real issue is not so much the length of the sentence imposed on count 1 but the degree of accumulation.

Purposes of punishment

1. I have taken into account the purposes of punishment in s 3A of the Crimes (Sentencing Procedure) Act. Adopting the paragraphs in that section, of particular significance in the present case are: (a) To ensure Mr Martin is adequately punished for these grave crimes. (b) General and personal deterrence. (e) To make Mr Martin accountable. (f) To denounce this reprehensible conduct. (g) To recognise the harm done to the victims.
2. The sentence must, by necessity, be of such magnitude that it is difficult to see how I can promote the rehabilitation of the offender. [34] As I have explained, I am not satisfied that the protection of the community is a significant factor in the present case although I have of course taken it into account. [35]

Sentences of life imprisonment

1. In R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774, I explained what I consider to be the correct approach to a determination of whether a sentence of life imprisonment should be imposed on an offender under the provisions currently in existence in New South Wales. I take the same approach in the present case and will now set out what I said as to the relevant principles in the Qaumi judgment. I will omit the references to authorities and citations. 182. Section 19A of the Crimes Act provides that the maximum penalty for murder is imprisonment for life. A person sentenced to imprisonment for life for murder is to serve that sentence for the term of their natural life. Since the abolition of the death penalty, this is the most severe penalty contemplated under Australian law. It should only be imposed in the extreme circumstances provided for by the law. It has a capacity to crush hope and kill any motivation an offender may have to reform. It is considered by some societies and some tribunals to be inhumane and contrary to human rights. However, it is part of the law of New South Wales and must be imposed in extreme cases. The relevant statutory provision reflects this. 183. Section 61(1) of the Crimes (Sentencing) Procedure Act provides: "61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 184. The first thing to note about the section is that the imposition of a life sentence is mandatory if the court is satisfied of the statutory prerequisite that "the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition" of a life sentence. The second thing to note is the importance of the use of the word "only" within that statutory requirement. If any other sentence will meet the community interest in the four matters referred to, that other sentence - and not a life sentence - should be imposed. 185. Section 61(3) provides "nothing in subsection (1) affects section 21(1)". Section 21(1) preserves the Court's discretion to impose a penalty less than the maximum even in cases where the offender is liable to a maximum penalty of imprisonment for life. In Knight v R [2006] NSWCCA 292 McClellan CJ at CL (with whom Adams and Latham JJ agreed) said that the operation of s 61(1) and s 21(1) required a "two stage approach" stating at [23]: "23 Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50." The High Court recently criticized the use of phrases such as "worst category" and held that the "better approach is for the court to clearly record whether the offence is, or is not, so grave as to warrant the imposition of the maximum penalty. The High Court has criticised two stage sentencing in other contexts. Many of the cases describing this two stage process were decided before the High Court made its decision in Muldrock v The Queen. The "two stage approach" was employed in cases such as R v Miles [2002] NSWCCA 276 at [204]; R v Merritt [2004] NSWCCA 19 at [37]; and Dean v R [2015] NSWCCA 307 at [73]. In Miles Stein JA described the two-stage process at [52]: "The first question is whether the level of culpability is so extreme as to warrant the imposition of a life term? Secondly, whether the subjective features are capable of displacing the need to impose the maximum term?" Some of the authorities recognise that a tension exists between s 61(1) and s 61(3). In Dean v R their Honours said (at [95]) that: "Certainly, the tension recognised in the authorities as existing between s 61(1) and s 61(3) can only readily be reconciled by assuming that that there has been a determination that a life sentence is required to be imposed and then asking whether, in the circumstances, nevertheless a lesser (fixed term) sentence is appropriate. In other words, there must first be an assessment that the level of culpability is such that a life sentence is required, having regard to the four indicia specified in s 61(1), before one can sensibly apply s 21(1)." 190 Similarly, in R v Merritt [2004] NSWCCA 19 Wood CJ at CL (Tobias JA and Hidden J agreeing) noted at [36] the tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) and the preservation by s 61(3) of the s 21(1) discretion to impose a lesser sentence. 191 There is debate as to whether the two-stage process is the correct approach. I doubt that it is. The case of Dean v R was subject to an application for special leave to appeal to the High Court. It was submitted that the two stage approach is wrong and that the "two sections have to sit alongside each other" with s 21(1) merely preserving the court's discretion in sentencing. While the application was refused on the facts of that case, Bell J commented: "We would not wish to be taken to be endorsing everything stated by the Court of Criminal Appeal in determining this matter." 192 That comment is rather (and, no doubt, deliberately) opaque. It is axiomatic that the observations of the High Court in granting or refusing special leave do not constitute binding precedent. However, the statements of the High Court in cases such as Markarian v The Queen, Muldrock v The Queen and most recently in Kilic v The Queen, satisfy me that the correct approach does not involve a two stage process. I do not consider the earlier judgments of the Court of Criminal Appeal suggesting otherwise are binding in the sense that they mandate that a two stage approach is necessary. 193 The correct approach to s 61 is for the sentencing judge to consider all of the evidence relevant to the sentencing discretion, apply the relevant sentencing principles (common law and statute) and make an assessment of the extremity of the offender's culpability and the "community interest in retribution, punishment, community protection and deterrence." The sentencing Judge must consider whether the only way that the community interest so identified can be met is by the imposition of a life sentence. This is not a multi-stage process. Rather, it is an intuitive evaluation of the all of the material and principles and an application of the legislation providing for mandatory life sentences. 194 In R v Adams (No 7), Button J identified a number of features of cases that have attracted life sentences. These included cases of multiple murders, cases featuring "some exceptional heinous act of cruelty, torture or mutilation" and, relevantly, "a cold blooded contract killing."
2. The present case has some things in common with a cold blooded contract killing. It was carried out in an attempt to obtain the proceeds of insurance policies that had been taken out months earlier. After the first attempt failed, Mr Martin observed at first hand his father's suffering after he awoke from the coma and his slow recovery from life threatening injuries. Even then, Mr Martin was not diverted from the course of killing him for financial gain. The moral delinquency involved in this course of conduct is staggering. However, most contract killings take place in the context of organised crime and the background to the present case, particularly the childhood neglect and abuse suffered by the offender, is unusual for a killing carried out for financial reward.
3. In the end, I am not satisfied that the various community interests referred to in s 61(1) can only be satisfied by the imposition of a life sentence. In reaching that conclusion I have given particular weight to:

• The history of abuse and neglect.
• The consequent psychiatric condition of the offender.
• Mr Martin's age and lack of significant criminal history.

1. I am satisfied that the determinate sentence I intend to impose will amply satisfy the community interests of particular relevance in the present case. It follows that an indeterminate life sentence is not the only sentence that will meet those interests.

Aggregate sentencing, totality, concurrence and accumulation

1. Rather than imposing individual sentences for each offence, I propose to impose an aggregate sentence and non-parole period. In doing so, I must indicate the sentence and non-parole period that would have been imposed had I not decided to impose an aggregate sentence.
2. Because an aggregate sentence is to be imposed, the precise details of the degree of concurrence and accumulation are of less significance. However, the totality principle remains important, as does the requirement that the sentence must adequately reflect the gravity of the course of conduct undertaken by the offender. The sentencing response must be proportionate to the extreme gravity of the crimes.
3. If individual sentences were imposed, it would be appropriate for there to be a degree of accumulation in relation to the sentences imposed on counts 1 and 2 in order to vindicate the dignity of the two separate victims while bearing in mind the fact that both offences were committed at the same time. The third count involved a separate act of criminality and, in spite of the common motivation, there would be some substantial accumulation. The totality principle would require that I recognise that all three offences were part of the one course of criminal conduct.

Comparable cases

1. Counsel referred me to a number of authorities said to provide some guidance to the appropriate sentence. [36] I am grateful for counsel's diligence but I accept Mr Wendler's ultimate submission that no case appears to have the same features as the present case and that, in any event, each sentencing exercise must be carried out on the basis of individualised justice.
2. I have considered the sentencing outcomes in the cases referred to by counsel. The case of Willard is probably the closest case on a factual level. Mrs Willard had unsuccessfully made a fraudulent insurance claim on a life policy over her husband's life and was sentenced for that offence. [37] Later she contracted some local hoodlums to murder her husband in order to collect on the policies. She was convicted of murder after trial and sentenced to 36 years with a non-parole period of 26 years.
3. I have also revisited the outcomes in cases of contract killings in which determinate sentences were imposed. I considered these cases in the course of sentencing the Qaumi brothers. [38]
4. Of course, the significant (and perhaps unique) mitigating feature that distinguishes Mr Martin's case is the history of childhood abuse and his associated psychiatric illness.

Sentence

1. The sentences will commence on 14 March 2015 the date upon which the offender was arrested.
2. There is nothing that would justify a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act and the sentence I impose, and the individual sentences I indicate, will comprise a non-parole period that is 75% of the total sentence.
3. For the purpose of ss 53A(2)(b) and 54B(4) of the Crimes (Sentencing Procedure) Act I indicate that I would have imposed the following sentences had I not decided to impose an aggregate sentence:

• Count 1: A sentence of 15 years with a non-parole period of 11 years and three months.
• Count 2: A sentence of 8 years with a non-parole period of 6 years.
• Count 3: A sentence of 32 years with a non-parole period of 24 years.

1. The aggregate sentence will be one of 37 years with a non-parole period of 27 years and 9 months.

FORMAL ORDERS

1. Micheal Phillip Martin, for the three offences of which you have been convicted, I sentence you to a non-parole period of 27 years and 9 months commencing on 14 March 2015 and expiring on 13 December 2042. There will be a balance of term of 9 years and 3 months commencing 14 December 2042 and expiring on 13 March 2052.
2. I am required to inform you that the Crimes (High Risk Offenders) Act 2006 applies to the offences for which you have been sentenced. I will leave it your lawyers to explain the implications of that.

Endnotes

1. Actual spelling of the offender's name.
2. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
3. Ex Q.
4. Transcript (T) 204.
5. T 407, 412.
6. See, for example, Mrs Green at T 804 and Mr Friss at T 815.
7. Ex S 1 p 5.
8. Ex W.
9. Ex EE.
10. Ex QQ - UU.
11. See, for example, Ex G (a "000" call in which Mr Manning said "they've pissed off"), the evidence of Mr Woodgate who said he heard a female voice (T 246) and the version provided by the deceased who heard a male voice (Ex H).
12. Crimes (Sentencing Procedure) Act 1999, s 21A(2)(n), cf Fahs v R [2007] NSWCCA 26.
13. Crimes (Sentencing Procedure) Act 1999, s 21A(2)(c),(e),(eb) and (o).
14. Crimes (Sentencing Procedure) Act 1999, s 21A(2)(eb) and (l).
15. See for example Ex JJJJ.
16. Dr Vuletic, T 701.
17. Crimes (Sentencing Procedure) Act s 21A(2)(f).
18. Children (Criminal Proceedings) Act 1987 s 15A.
19. Crimes (Sentencing Procedure) Act 1999, s 21A(3)(e).
20. Crimes (Sentencing Procedure) Act 1999, s 21A(3)(f).
21. See, for example, Mr Capewell at T 359.
22. Crimes (Sentencing Procedure) Act 1999, s 21A(3)(c).
23. Ex JJJJ, p 7.
24. Ex JJJJ, p 8.
25. Ibid.
26. Ms Lawson, T 1501.
27. Dr Farrar, Ex S -1, pp 7-8.
28. Luque v R [2017] NSWCCA 226 at [80]-[82] and [114]-[115]; Ryan v R [2017] NSWCCA 209 at [15].
29. Transcript of sentencing proceedings, p 12.
30. Crimes (Sentencing Procedure) Act 1999, s 21A(3)(g) and (h).
31. Crimes (Sentencing Procedure) Act 1999, s 21A(3)(l) and 22A.
32. R v Candace Martin [2017] NSWSC 1498.
33. Cf, for example, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.
34. Crimes (Sentencing Procedure) Act, s 3A(d).
35. Crimes (Sentencing Procedure) Act, s 3A(c).
36. For the attempted murder: Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223, Williams v R [2013] NSWCCA 168 and Shine v R [2016] NSWCCA 149. For the murder: R v Willard [2005] NSWSC 402; Goebel-McGregor v R [2006] NSWCCA 390, Ziha v R [2013] NSWCCA 27 and Mulvihill v R [2016] NSWCCA 259.
37. See R v Willard [2001] NSWCCA 6; 120 A Crim R 450.
38. R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 at [195] referring (at note 105) to R v Burnes [2007] NSWCCA 53 (Fullerton J, starting point 36 years); May v R [2012] NSWCCA 111 (Kirby J, 36 years); R v Suteski (2002) 56 NSWLR 182 (Kirby J, 22 years); R v Ryan & Coulter [2011] NSWSC 1249 (Latham J, 36 years and 27 years respectively).

Amendments 09 February 2018 - updated catchwords 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: 09 February 2018