R v Martinez; R v Tortell (No. 6) [2020] NSWSC 267

Supreme Court New South Wales

Medium Neutral Citation: R v Martinez; R v Tortell (No. 6) [2020] NSWSC 267 Hearing dates: 18 February 2020 Date of orders: 20 March 2020 Decision date: 20 March 2020 Before: Johnson J Decision: Wade Martinez The Offender Wade Martinez is sentenced for the manslaughter of Gewargis Garmo 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 the Offender Wade Martinez will be eligible for release on parole is 27 March 2023. Jake Tortell The Offender Jake Tortell is sentenced for the manslaughter of Gewargis Garmo 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 the Offender Jake Tortell will be eligible for release on parole is 27 February 2021. Catchwords: SENTENCE – CRIMINAL LAW - sentence after trial - offenders found not guilty of murder but guilty of manslaughter - victim stabbed to death - joint criminal enterprise between offenders to cause harm to victim falling short of grievous bodily harm - inability to find beyond reasonable doubt which offender killed the victim - assessment of culpability of each Offender - different levels of culpability found - significant difference in subjective circumstances of offenders - discount for offers to plead guilty to manslaughter - sentences of imprisonment imposed Legislation Cited: Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 Magro v R [2020] NSWCCA 25 Martinez v R; Tortell v R [2019] NSWCCA 153 Merrick v R [2017] NSWCCA 264 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 R v Hill (1981) 3 A Crim R 397 R v Nguyen [2005] NSWSC 600 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Tortell; R v Martinez (No. 5) [2019] NSWSC 1665 Strbak v The Queen [2020] HCA 10 Tabbah v R [2019] NSWCCA 324 Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Texts Cited: --- Category: Sentence Parties: Regina (Crown) Wade Martinez and Jake Tortell (Offenders) Representation: Counsel: Mr M Barr (Crown) Mr C Watson (Offender Martinez) Mr J Trevallion (Offender Tortell)