Martinez v R [2022] NSWCCA 12

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martinez v R [2022] NSWCCA 12 Hearing dates: 5 November 2021 Date of orders: 11 February 2022 Decision date: 11 February 2022 Before: Macfarlan JA at [1] Brereton JA at [2] Beech-Jones CJ at CL at [3] Decision: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) Set aside the sentence imposed by Johnson J on the applicant on 20 March 2020; (4) In lieu thereof: (a) sentence the applicant to a term of imprisonment of 9 years and 3 months to commence on 27 August 2015 and expire on 26 November 2024 with a non-parole period of 6 years and 11 months; and (b) specify that the earliest date the applicant will be eligible to be released on parole is 26 July 2022. (5) Direct the applicant's solicitor to notify the applicant of the existence of the Crimes (High Risk Offenders) Act 2006 and its application to the offence the subject of this application. Catchwords: CRIMINAL LAW – sentence appeal – manslaughter – joint criminal enterprise – victim stabbed – sentencing judge not able to find beyond reasonable doubt which co‑offender stabbed victim – sentencing judge found knife obtained by applicant used to kill victim – challenge to finding – sentencing judge had advantage of observing witnesses – challenge rejected – whether sentencing judge could have and should have found on balance of probabilities that the applicant did not stab victim – finding could have been made and would have assisted applicant – no error in not making finding – whether sentencing judge erred in finding that offence partly committed in public place – offenders chased victim through streets before victim stabbed in backyard – no error – discount for offer to plead guilty to manslaughter prior to trial – 5% discount allowed – sentencing judge erred in considering failure to plead guilty in front of jury – whether sentencing judge erred in failing to find special circumstances – discretionary judgment – no error – applicant re‑sentenced Legislation Cited: Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bell v R [2019] NSWCCA 271 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Borg v R [2019] NSWCCA 129 Craft v R [2021] NSWCCA 131 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gibson v Regina [2019] NSWCCA 221 Hallak v R [2014] NSWCCA 48 Hordern v R [2019] NSWCCA 138 House v The King (1936) 55 CLR 499 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Magro v R [2020] NSWCCA 25 Martinez v R; Tortell v R [2019] NSWCCA 153 R v Cardoso (2003) 137 A Crim R 535; [2003] NSWCCA 15 R v JW [2010] NSWCCA 49 R v Martinez; R v Tortell (No 6) [2020] NSWSC 267 R v O'Donoghue (1988) 34 A Crim R 397 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wright [2009] NSWCCA 3 Turnbull v R [2019] NSWCCA 97 Category: Principal judgment Parties: Wade Martinez (Applicant) Regina (Respondent) Representation: Counsel: Ms G Bashir SC; Mr C McGorey (Applicant) Ms K Jeffreys (Crown)