R v Candace Martin

[2017] NSWSC 1498

Supreme Court

New South Wales

Medium Neutral Citation:

R v Candace Martin [2017] NSWSC 1498

Hearing dates:

3, 22 August 2017, 12 September 2017, 24, 25 and 26 October 2017

Date of orders:

03 November 2017

Decision date:

03 November 2017

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Sentenced to total effective sentence of 9 years with total effective non-parole period of 4 years (see [103]).

Catchwords:

CRIMINAL LAW – sentencing – attempted murder – provision of false alibi – “just in case” he murdered his father – accessory after fact to murder – offender the wife of principal offender – insurance policies taken out on life of deceased – where first attempt fails – second attempt successful – murder by samurai sword – where principal offences grave –whether offender acting under non-exculpatory duress – mixed motives – partially motivated by possibility of financial gain – misguided loyalty – reluctance to leave children without father – abusive relationship – impact on moral culpability and length of sentence

 

CRIMINAL LAW – sentencing – mitigating features – discounts for plea of guilty – where offender offers to give evidence against co-offender – where prosecution declines offer – tissue of lies – impact on appropriate reduction in sentence – assessment of reliability and truthfulness of offender’s evidence – distinguish truth from fiction

  CRIMINAL LAW – sentencing – extreme hardship on third parties – offender has 4 children under 8 years of age – one child 9 months old – children with significant medical and behavioural issues – impact on sentence – Mothers and Children Program – rights of children – international covenant – wholly exceptional case – special circumstances – substantial reduction in length of non-parole period – attempt to impose lowest possible non-parole period – minimising separation of mother and children – minimising period children in custody with mother

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
United Nations Convention on the Rights of the Child (1989)

Cases Cited:

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Edwards (1996) 90 A Crim R 510
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
HJ v R [2014] NSWCCA 21
Hoskins v R [2016] NSWCCA 157
Kaminic v R [2014] NSWCCA 116
Luque v R [2017] NSWCCA 226
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R v AC (No 7) [2016] NSWSC 404
R v Anderson [2011] NSWSC 1689
R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
R v Hines (No 3) [2014] NSWSC 1273
R v Johnson [2014] NSWSC 1254
R v Latouf (CCA (NSW), Mahoney ACJ, 12 December 1996, unrep)
R v Lenati [2008] NSWCCA 67
R v MacLeod [2013] NSWCCA 108
R v Martin & Martin [2017] NSWSC 1106
R v Oinonen [1999] NSWCCA 310
R v Quach [2002] NSWSC 1205
R v Thompson & Houlten 49 NSWLR 383; [2000] NSWCCA 309
Shine v R [2016] NSWCCA 149
The Queen v Kilic [2016] HCA 48; (2016) 339 ALR 229
Tiknius v R [2011] NSWCCA 215
TT v R [2014] NSWCCA 206
Williams v R [2013] NSWCCA 168
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Sentence

Parties:

Regina (Crown) 
Candace Jodie Martin

Representation:

Counsel:
Mr B Campbell (Crown) 
Mr S Healy (C J Martin)

  Solicitors:
Director of Public Prosecutions (Crown) 
Universal Law (C J Martin)

File Number(s):

2015/00104796

Publication restriction:

Non-publication orders to compliment statutory prohibition in Children (Criminal Proceedings) Act 1987 (NSW)

Judgment

1. On 12 September 2017 Candace Martin entered pleas of guilty to one count of attempted murder on 7 April 2014 (count 1) and a second count of being an accessory after the fact to murder on 13 June 2014 “and other days following” (count 3). The indictment on which she was arraigned included an offence of murder (count 2). The Crown indicated that it would accept the pleas of guilty to counts 1 and 3 in full discharge of the indictment and Ms Martin was discharged in relation to the murder count.

2. Each of the offences to which Ms Martin pleaded guilty carries a maximum penalty of 25 years imprisonment. [1] Those maximum penalties must be kept in mind throughout the sentencing process for the reasons explained by the High Court in Markarian v The Queen. [2] A second significant legislative yardstick is the standard non-parole period of 10 years which applies to the attempted murder charge. [3] The way in which the standard non-parole period must be applied is well established. [4]

   1. Crimes Act 1900 (NSW), ss 27 (attempted murder) and 349 (accessory after murder).

   2. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 372 [31] reaffirmed in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [10].

   3. Crimes (Sentencing Procedure) Act 1999 (“Sentencing Act”), ss 54A, 54B and the Table to Part 4, Division 1A.

   4. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

3. Remaining cognizant of these legislative guideposts is particularly important in a case such as the present where a compelling “subjective” case has been presented on behalf of the offender. Sentencing in such circumstances is difficult, but the sentencing Judge must not allow the tragic personal circumstances of an offender or their family to lead to the imposition of a sentence that is unjust, erroneously lenient or otherwise disproportionate to the gravity of the offending. However moving the circumstances of an offender and their family, a sentencing Judge must be guided by the purposes of sentencing set out in s 3A of the Sentencing Act.

4. Ms Martin’s involvement in the two crimes arose out of her marriage to Micheal Phillip Martin. The victim of both offences was Mr Martin’s father (Michael Anthony Martin, to whom I will generally refer as “the deceased”). [5] She was originally arraigned with Mr Martin (and another co-accused) but applied for, and was granted, a separate trial. [6] Mr Martin stood trial in Lismore between 4 September 2017 and 25 October 2017. It was part way through that trial that the parties asked for Ms Martin to be re-arraigned. Previously, on 3 August 2017, Ms Martin entered pleas of guilty to being an accessory after the fact to both the attempted murder and the murder. The Crown did not accept those pleas of guilty. In the first week that Mr Martin’s trial was listed (28 August 2017), there were negotiations between Ms Martin’s lawyers and the Crown. Ms Martin offered to give evidence against her husband. Those negotiations broke down late that week. Ms Martin repeated her offer to give evidence against her husband when she entered her pleas on 12 September 2017. However, the Crown Prosecutor decided not to call her to give evidence.

   5. The material suggests that the co-offender’s first name is spelt “Micheal” (with the “a” and “e” reversed) while the deceased’s name was spelt in the customary way (“Michael”).

   6. R v Martin & Martin [2017] NSWSC 1106.

5. The facts were largely agreed between the parties and a document styled “Agreed Facts” with a number of annexures was tendered without objection. [7] The annexures included a number of recorded interviews between Ms Martin and police as well as two transcripts of conversations that were covertly recorded by listening device. The following summary of the facts is based on the material tendered in the present sentencing proceedings. While I presided over Mr Martin’s trial (which resulted in verdicts of guilty on 25 October 2017), the extensive evidence adduced in that trial does not inform the findings of facts made here or the approach I take to sentencing the offender. The evidence in each case is different.

   7. Ex A.

6. There remained factual controversies particularly concerning the offender’s motives for committing the crimes. Ms Martin’s case is that she was acting as a result of some form of duress arising from her husband’s violence and the dysfunctional nature of the marriage. The Crown’s case is that she was motivated by greed or, at least, that her motivations were complex and included a desire to reap the financial benefits of an insurance policy (or policies) that was (or were) taken out over the deceased’s life a couple of months before the first attempt to murder him.8 A large body of evidence relevant to that question was tendered and this included the evidence of Ms Martin herself. I accept some parts, but not all, of her evidence.

the facts

7. Mr Martin was estranged from the deceased who had treated him badly as a child. The evidence of Ms Martin, which I accept, is that her husband told her on many occasions, and in graphic and ugly terms, that he hated his father. Some time in late 2013 or early 2014, contact between father and son was re-established. Then, in February 2014, Mr Martin took out three insurance policies against the accidental or violent death of his father. These policies provided for benefits in the sums of $1million, $1million and $500,000 respectively in the event of the death of the deceased in particular circumstances. In two of the policies, the benefit would go to the estate (of which Mr Martin was one of three beneficiaries). In a $1 million policy taken out with Clearview Wealth Limited, Mr Martin was the nominated beneficiary.

The attempted murder

8. Ms Martin admits that she was aware that her husband had taken out the Clearview insurance policy. She was also aware that her husband wanted to kill his father. Initially, she disagreed with his plan to kill his father. After he made an apparent suicide attempt on 20 December 2013, Ms Martin told her husband:

“You do what you gotta do, and I’ll just cover your arse.”

9. On 6 April 2014, the pair had lunch with the deceased at a hotel in Murwillumbah. After lunch, they gave the deceased and his flatmate a five-litre bottle of home made whiskey. The deceased was known to be an alcoholic. The couple returned with their children to their home in Esk in Queensland.

10. Mr Martin then returned to Murwillumbah and went with other people to the deceased’s flat. When he answered the door, the deceased was stabbed in the eye and fell to the ground. He was stabbed to the neck and physically assaulted about the face, head and body.

11. The deceased sustained life-threatening injuries and would have died but for the medical treatment he received at Tweed Heads and Gold Coast Hospitals. He lost the sight in his left eye from a penetrating injury. Both of his lungs collapsed. There was a penetrating wound to the right side of the neck and fractures to the cheekbones, zygoma, nasal bones and mandible. As a result of this combination of serious injuries, he suffered complications and was placed on life support to ensure blood flow to his vital organs. He suffered ischemic gut (dead bowel) and this required surgical intervention. He required dialysis for renal failure. He developed septic shock. He was not released from the Intensive Care Unit until 9 May 2014.

12. Ms Martin’s role in this attempt to murder her father-in-law involved her agreement to cover up her husband’s part of the crime and in providing her husband with an alibi (or attempting to do so). During the visit to New South Wales in the days before the attack, the couple bought a ring and posted a photograph of the item on Facebook on the evening of 6 April 2014. In response to friends’ comments on the photograph, Ms Martin posted replies that suggested that Mr Martin was with her later that night, thus setting up a false alibi.

13. Ms Martin’s conduct had the capacity of emboldening Mr Martin and was calculated to assist and encourage him in his attempt to murder his father to obtain a substantial sum of money. While I accept the Crown’s submission that her role was important, it was not as the Crown implied central to the commission of the offence. It was put that “the offence simply could not have been committed in the way that it was without the agreement of the offender”. [8] While that may literally be true, it is likely that her husband would have proceeded with his plan without her assistance, encouragement or approval. As Mr Healy submitted, the best evidence to support that finding is the fact that her husband proceeded to murder his father on 13 June 2014 without the offender’s knowledge, approval, involvement or assistance.

    8. Transcript (T), 116-117.

14. Ms Martin’s evidence of her knowledge and belief surrounding her husband’s actions on 6-7 April 2014 was inconsistent and unsatisfactory. At times, I was concerned that her evidence was inconsistent with her plea of guilty. At some stages she suggested that she believed that her husband would not proceed with his plan to kill his father. She agreed, however, that this was more of a hope than a belief. [9] Later, she gave the following evidence: [10]

    9. T 72.

    10. T 75.

“Q. And that paragraph says that that enabled him to rely on those posts as suggesting that he was at home with you or that indeed I think you said in evidence yesterday that he had made those posts?

A. He put the ring up initially and I responded in comments yes but it was joint Facebook account.

Q. I understand that but did you not say yesterday that the way the posts were written would make it appear that he was--

A. Correct.

Q. --making the post?

A. Yes.

Q. And was that to provide him, as seems to be implied in the last sentence, to enable him to assert an alibi, namely that he was with you at home in Esk in Queensland when in fact he was somewhere else?

A. It was a cautionary measure like I put it as a just in case, you know, all night I was hoping he’d [come] back in that driveway but I guess yes as a ‘just in case’. I was - yeah--

Q. Just in case he murdered his father, is that what you mean?

A. Maybe at the time, yes.”

15. I do not accept the suggestion that Ms Martin acted purely as a result of duress on the part of her husband. The evidence in support of that suggestion in relation to the attempted murder charge is scanty and self-serving.

16. The attack itself was a brutal one and the victim was assaulted in his own home. [11] The offence was committed, at least in part, for financial gain although the offender’s motives were complex. [12] The medical consequences of the attack were dire. Notwithstanding the brutality of the attempted murder and the financial motivation that lay behind it, I accept that the limited role played by the offender is such that the criminality falls below the putative “middle of the range of seriousness” for the purposes of the application of the standard non-parole period of 10 years. However, it does not fall very far below that range.

    11. Cf Sentencing Act, s 21A(2)(eb).

    12. Sentencing Act, 21A(2)(o).

The murder

17. After his release from hospital, the deceased stayed with his former partner and their two children for a period. That situation did not last due to tensions in the household and the deceased claimed that he was “kicked out”. In any event, on 11 June 2014 Mr Martin picked up his father and took him to Esk. They stayed at Ms Martin’s house for a day and then travelled to Murwillumbah on Thursday 12 June 2014, ostensibly to pick up the deceased’s property. Mr Martin and his father stayed at the same unit where the attack on 7 April 2014 took place in spite of the fact that it remained in a very poor condition with blood stains and fingerprint dust on walls, floors and furniture.

18. During the course of the evening Mr Martin murdered his father using a samurai sword. A post mortem examination disclosed multiple (12) incised and penetrating stab wounds. There were four stab wounds to the chest, four incised wounds to the head, neck and shoulder and four defensive wounds to the left arm.

19. At around 5am a neighbour (Mr Collingwood) found Mr Martin at the bottom of the external stairs to the unit. He was bound with black tape by the wrists, legs and over his eyes. Mr Collingwood helped to free him and Mr Martin said “Oh my Dad is up there, they got my dad. I think he’s dead.” Messrs Martin and Collingwood went upstairs, saw the dead body and contacted emergency services. Mr Martin was interviewed as a victim and was taken to hospital suffering from superficial abrasions to the face and back and a small lump to the forehead.

20. According to the Agreed Facts, “Ms Martin became aware that Mr Martin was responsible for killing his father” “after” the latter’s death. [13] Ms Martin said (in an induced statement) that she found out that Mr Martin had murdered his father on 20 June 2014 (a week after the murder). This was when she saw him grinding a samurai sword and had a conversation with him in which he, implicitly but clearly, admitted that he was the murderer. [14] I proceed on the factual basis that Ms Martin did not know until that time that her husband had decided to go ahead, or re-instigate, his plan.

    13. Ex A, Tab 1, paragraph [40].

    14. Ex 1, Tab 1, paragraphs [162]-[169].

21. A claim was made on the Clearview policy on 15 July 2014. Ms Martin witnessed her husband’s signature on the claim form, even though she knew that he was responsible for his father’s murder.

Accessory after – assistance provided to the principal

22. From 20 June 2014 until around mid-April 2015, Ms Martin failed to disclose to police her knowledge of her husband’s involvement in the murder. Further, she actively misled investigators in the course of a number of conversations with them. After his arrest, she attended the police station to protest his innocence.

23. In addition to those matters, she promised her husband that she would attempt to retrieve a potentially incriminating letter from his office. She attended the office, presumably with that objective, but did not attempt to approach the desk where the letter was located. Nor did she ask any of Mr Martin’s work colleagues to retrieve the letter. Later she told her husband that she had attended the office but the letter was not there.

24. At some stage before March 2015, Ms Martin made admissions to her housemate Stephanie Broad. In a part of her evidence that I accept, Ms Martin said this happened after a violent fight between her and her husband. Ms Broad told police of the admission on 20 March 2015 and, on 8 April 2015, consented to being part of a covert action that led to the recording of a conversation with Ms Martin later that day. In that conversation, [15] Ms Martin implored Ms Broad not to tell police about the admissions and her knowledge of the actions of her husband. Ms Broad encouraged Ms Martin to speak to police and tell them what she knew. Ms Martin explained, or attempted to explain, her reasons for not informing police of what she knew about her husband’s involvement in the murder. Her reasons were complex and included her fear of her husband who, she said, had threatened her and “come at me with a knife”. She was also concerned for the couple’s young children and did not want to “[put] their dad behind bars.”

    15. Ex 1 Tab 5.

25. After this conversation, the listening device was switched off or removed. An arrangement was made between the women to meet again. There was a further conversation that was not recorded but its contents were agreed between the parties. [16] In that conversation Ms Martin said that if Ms Broad remained silent, Mr Martin would pay her some of the proceeds of the insurance policy.

    16. Ex E.

26. The factors relevant to assessment of the objective criminality of an offence of being an accessory after the fact to murder were considered in TT v R: [17]

    17. [2014] NSWCCA 206, Hamill J (Macfarlan JA and Fullerton J agreeing).

“13 In R v Quach, Simpson J said at [11] ‘I take the view that assistance in the disposal of a body after a murder takes a crime of this kind into the upper echelons of the offence against s 349.’ While the cases to which I have referred are cases prosecuted under s 349 of the Crimes Act, they have equal application to offences of accessory after the fact to manslaughter under s 350.

14 However, Fullerton J said in Kaminic v R [2014] NSWCCA 116 at [45]:

‘It does not follow that if the assistance an accessory renders is of a different or less direct kind (as well it might be in the case of a contract killing of the kind alleged here) that it necessarily constitutes offending of a lesser order of objective seriousness. Each case must be assessed on its own facts.’

15 In R v Johnson [2014] NSWSC 1254 I suggested that an assessment of the objective gravity of offences of this kind (in that case accessory after the crime of murder) involves a consideration of a number of factors which include, but are not limited to:

(1)The circumstances of the homicide itself.

(2)The extent of the knowledge in the accessory of those circumstances.

(3)The precise act, or acts, which constitutes the offence of being an accessory after the fact.

(4)The length of time over which the offender assisted the principal offender in escaping justice.

(5)The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender.

(6)The motivation of the offender in committing the crime.

(7)The offender's conduct in being motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender.

(8)The disposal or destruction of a corpse. These cases generally fall at the upper end of the range of criminality for the offence.

16 In R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408, Hidden J said ‘in many cases of this kind the offender's conduct is the product of emotional attachment or dependence or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the judicial commission statistics which were disposed of otherwise than by full-time custodial sentences.’ In R v Quach Simpson J referred at [13] to the offender's state of ‘fear, loyalty and confusion” arising from his relationship with the principal.”

27. This matter is far removed from cases such as TT, Kaminic and Quach. Applying the criteria identified in those earlier cases, I make the following observations and findings relevant to an assessment of the objective criminality of the offender:

1. The circumstances of the homicide were particularly serious, involving a brutal assassination by samurai sword in the victim’s own home and in an attempt to obtain the very considerable proceeds of three insurance policies. The offence was planned, premeditated, involved an intention to kill, the use of a weapon and was carried out after an earlier unsuccessful attempt to murder the same victim.

2. On the evidence before the Court, the offender did not know all of the circumstances but she was aware of the existence of one of the insurance policies, and stood to gain financially if her husband’s plan succeeded. She knew the co-offender had murdered his father using a samurai sword. The offence was at least partially motivated by financial gain. [18]

   18. See s 21A(2)(o).

3. The acts of the offender involved persistently deceiving the police on behalf of her husband and failing to disclose critical information. It also involved an attempt to retrieve incriminating evidence from her husband’s work place. I do not accept her evidence that she went to her husband’s office “just to tell [his co-workers] to chuck his stuff out basically”. [19] That account is inconsistent with the evidence of her communications with her husband surrounding her attendance at his office and with the contents of the letter that he was asking her to retrieve. Her evidence that she thought he was asking her to retrieve a psychiatric referral (the code used in the communications) lacks credibility.

   19. T 74.

4. The offender persisted with her attempts to assist her husband over a period of around 10 months, from 20 June 2014 until mid-April 2015.

5. Her conduct interfered with and thwarted the investigation to some degree but it was not ultimately successful and I am not persuaded that her behaviour was a particularly significant factor in the delay in charging Mr Martin. Obviously, had she come forward shortly after seeing her husband grinding the samurai sword (assuming that actually happened), it is likely that the police investigation would have culminated in the arrest of her husband much sooner.

6. Ms Martin’s motivation was multi-faceted and complex. Her conversation with Ms Broad showed that she was concerned that informing on her husband would leave the children without a father. I accept that she was also in fear of her husband, due to their dysfunctional and at times violent relationship and the knowledge of the extreme violence that he had visited on his father. However, she was also, at least in part, motivated to benefit herself and her children financially. So much is clear from her request in a text message on 9 February 2015:

“Can you just get a house for the kids? 250,000; the rest is yours.”

7. In the same text she said “(MONEY, I hate it!!!! Greed has ruined me; ruined us!)”

8. This was a case where, to some degree, the offender’s conduct was motivated out of misguided loyalty. However, it is far removed from those cases spoken of by Hidden J in Dileski. This was not a parent protecting their child or a wife protecting her husband out of a sense of love, duty or loyalty. Ms Martin stood to benefit financially, at least vicariously through her children, if Mr Martin succeeded in his plans to get away with murder and make a successful claim on the insurance policy of which she was aware.

9. Ms Martin played no part in disposal of the corpse (which was not, in this case, disposed of), or in destroying evidence or undertaking any of the other acts that are often associated with the worst cases of being an accessory after the fact to a homicide.

28. It was submitted by the Crown that the fact that both attacks occurred in the home of the victim was “an aggravating feature to both the attempted murder and the accessory after the fact to murder”. I do not accept the second part of this submission. True it is that the murder itself was so aggravated, and that is relevant to an assessment of the seriousness of the accessory charge in the way explained in [27](1) above. However, none of the actions that constitute the accessory after offence was committed in the home of the victim and it would be an error to treat the matter as an aggravating feature under s 21A(2)(eb).

29. In Kilic v The Queen, [20] the High Court questioned the utility of categorising a case as falling within “the worst category” but observed that:

“[a] sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category.”[21]

20. The Queen v Kilic [2016] HCA 48; (2016) 339 ALR 229; (2016) 91 ALJR 131 at [17]-[20].

21. At [19].

30. Taking into account all relevant matters, most of which are identified in [27] above, the offence of accessory after the fact to murder committed by Ms Martin falls towards the bottom of the wide spectrum of offences contemplated by s 349. However, it is a long way removed from those cases at the very bottom of that spectrum. The substantive offence was, as the Crown Prosecutor submitted, a heinous example of murder being a brutal assassination committed for financial reward following an earlier unsuccessful attempt. Further, the cover-up was persistent and ongoing and it was motivated, at least in part, by the hope that the family would reap the benefit of an insurance payout. On the other hand, the acts of assistance were towards the lower end of the kinds of acts often associated with offences of this kind and the other part of Ms Martin’s motivation was her reluctance to leave her children without their father and misconceived loyalty to a man who was her first love, and then her husband and father of two of her children.

IS A FULL TIME CUSTODIAL SENENCE REQUIRED?

31. Section 5 of the Sentencing Act forbids the Court from imposing a gaol sentence unless there is no other appropriate alternative. Regrettably – from the perspective of Ms Martin, her family, her friends and her children – this is a case where the law provides no alternative punishment that would meet the purposes of punishment set out in section 3A. This observation applies in relation to both of the offences considered in isolation. But when the totality of the criminality between April 2014 and April 2015 is considered, the requirements of deterrence, denunciation, accountability and adequate punishment, call out for a full time custodial sentence of some length. On the other hand, the individual circumstances of this offender and her children require that the gaol sentence must be tempered by a significant degree of compassion.

32. In reaching this conclusion, I have considered the powerful personal circumstances and the impact that a gaol sentence will have on Ms Martin’s children. But I have also kept in mind the sanctity with which the criminal law treats and protects human life. This is a case where there have been no victim’s impact statements provided. Mr Martin Snr died alone in a squalid flat in an industrial area of Murwillumbah. [22] He did not have supporters in the courtroom. I do not know who grieves for him. However, in the eyes of the law his life is as sacred as the most popular, and well represented, victim of homicide. [23]

    22. I know this from the evidence tendered in the trial proceedings.

    23. See R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84]

DISCOUNTS FOR PLEAS OF GUILTY AND OFFER OF ASSISTANCE

33. The offender entered pleas of guilty and offered to give evidence against her husband in accordance with an induced statement dated 1 September 2017. A question arises as to whether her sentence should be reduced as a result and, if so, to what extent. The parties agreed that different discounts for the plea of guilty were appropriate to the two offences because of the somewhat complicated history of the negotiations that led to the pleas. There is a guideline judgment in relation to the discounts that are appropriate when an offender pleads guilty. [24] Section 23 of the Sentencing Act provides a list of factors that “must” be taken into account in deciding the extent of any discount for assistance to authorities. That list does not purport to be exhaustive.

    24. R v Thompson & Houlten 49 NSWLR 383; [2000] NSWCCA 309.

34. A letter written by the offender’s solicitor on 8 January 2016 suggested that the Crown might accept a plea of guilty to “either Conceal or Accessory After the Fact”. This suggestion was not taken up. On 3 August 2017, Ms Martin formally entered pleas of guilty to accessory after both the murder and the attempted murder (and another charge which has since been discontinued). The plea was not accepted in full discharge of the indictment and the separate trial application proceeded. Her trial, originally listed on 28 August 2017, was re-scheduled to commence at the conclusion of Mr Martin’s trial. The plea was then entered formally on 12 September 2017 at which time the plea was accepted. The Crown’s position concerning the accessory after charge changed once the offender acknowledged her guilt in relation to the attempted murder charge. It was submitted by the Crown that the letter of 8 January 2016 was really no more than an “invitation to treat”. Whether or not that is an accurate description of the correspondence, I am satisfied that the letter disclosed Ms Martin’s willingness at an early stage (and prior to her committal hearing) to plead guilty to the second offence for which she is to be sentenced. My conclusion is that her plea of guilty to the accessory after charge should be treated as an early one. [25]

    25. Cf, for example, R v Oinonen [1999] NSWCCA 310 at [15]-[18] and R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 at [21].

35. As to the charge of attempted murder, there seems to have been no offer to plead guilty until after the commencement of her co-offender’s trial. Accordingly, the plea can only be described as one that came very late.

36. The pleas saved a good deal of court time. The trial had an estimate of 4-5 weeks. Because of this, both pleas had a significant utilitarian value. In the circumstances, I propose to reduce the sentence by 25% for the plea of guilty to the accessory after charge and provide a discount of 15% for the plea to the attempted murder charge.

37. The offer to give evidence against her husband also creates complications. The extent of discount that should be allowed is to be determined by reference, amongst other things, to the factors set out in s 23 of the Sentencing Act.

38. The same letter from her solicitor sent to the prosecution on 8 January 2016 indicated that if the prosecution accepted Ms Martin’s offer to plead guilty “she would then be in a position to make an induced statement and appear as a Crown witness.” However, no such statement was prepared until 1 September 2017 (after the plea negotiations were finally resolved). I take a similar approach to that indicated in respect of her plea to the accessory after offence – the offer to assist and give evidence was a timely one. [26]

    26. Sentencing Act, s 23(2)(e).

39. The Crown Prosecutor elected not to call Ms Martin as a witness in the trial. He formed the view that her evidence would lack credibility. Certainly, her evidence was contrary to a number of case theories ventilated in her husband’s trial. Further, her earlier interviews with police were littered with lies and any evidence she gave in the trial would have been subject to a tremendous attack on her credibility. The Crown’s assessment of her evidence reduced the “significance and usefulness” of the assistance. [27] However, at least some of what she said led to the discovery (or understanding) of evidence that was used in the trial of her husband. [28]

    27. Sentencing Act, s 23(2)(b).

    28. See, for example, Ex 1, Tab 1 [64] and the concession made at T 114.

40. The Crown also submitted that the assistance and the offender’s statement lacked “truthfulness, completeness and reliability”. [29] I agree with the Crown’s submission that much of the offender’s statement appears to be exaggerated and dramatic. I would add self-serving. The extraordinary web of deceit in which Ms Martin was embroiled from April and June of 2014 until her pleas of guilty were entered in September 2017, along with the tissue of lies told to investigating police during that period, means that her reliability and truthfulness is, to put it as kindly as I can, questionable. In reality, it is difficult to know which parts of her account are true and which parts are not. However, parts of her evidence are clearly truthful and reliable. I am unable to determine the extent to which it is complete.

    29. Sentencing Act, s 23(2)(c).

41. There is no evidence that the offender’s offer to assist has resulted in any other benefit, or that she will suffer harsher custodial conditions as a result, or that she has suffered any injury. [30] However, I accept that her fear of reprisal is real enough. Her parents have also expressed fears. The assistance relates to offences in which she was involved, either as a principal or as an accessory after. [31]

    30. Sentencing Act, s 23(2)(f),(g) or (h).

    31. Sentencing Act, s 23(2)(i).

42. Taking into account all of these matters, as well as the “the nature and extent” of her assistance,[32] I have concluded that there should be a further reduction in her sentence of 10%.

    32. Sentencing Act, s 23(2)(d).

43. Accordingly the sentence for the attempted murder will be reduced by 25% while the sentence for the accessory after murder will be reduced by 35%.

44. In settling upon those discounts, I am conscious of the fact that the final sentencing outcome must not be unreasonably disproportionate to the criminality involved. [33] While the discounts might be considered to be generous in the circumstances, given that offenders who enter their pleas at the first opportunity and provide assistance of the highest order rarely obtain discounts of more than 50-60%, I have taken into account the observations of Simpson J in R v Lenati. [34]

    33. Sentencing Act, s 23(3).

    34. R v Lenati [2008] NSWCCA 67 at [35]. See also R v AC (No 7) [2016] NSWSC 404 at [16].

THE OFFENDER’s case on sentence

45. Ms Martin was 24 years old at the time of the offences and is 27 years old now. She has nor prior criminal history. She relies on a number of significant mitigating features. Where an offender seeks to establish matters in mitigation, the onus of proof is on the offender but the standard of proof is on the balance of probabilities. Counsel for Ms Martin mounted a powerful subjective case based on a large volume of evidence with a view to establishing a number of mitigating features. It is not possible to detail all of that evidence in the course of these remarks but I have considered it all closely.

Ms Martin’s evidence

46. The offender gave evidence in which she swore to the truthfulness of her induced statement. She gave evidence about her actions and motives in the course of the offences. She expressed her fears and explained the difficulties faced by her children and her family should she be sent to gaol. It appeared that she had not yet faced the reality of her predicament and the inevitable imposition of a lengthy custodial sentence.

47. One of the problems in acting on Ms Martin’s evidence is the nature and extent of her dishonesty and deceitfulness in her dealings with the police. She deliberately misled the investigators for many months. An interview conducted on 28 November 2014 can properly be described as a pack of lies. After her husband was arrested she attended Tweed Heads Police Station on 15 March 2015 protesting his innocence. Another interview was recorded. Again, she told lies to those investigating a murder of which she had a good deal of knowledge. A lengthy recorded interview on 9 April 2015 (after her arrest) also contains many dishonest responses. Her induced statement contains many assertions that appear to be self-serving and self-justifying. It is difficult to distinguish fact from fiction.

48. Ms Martin’s evidence in Court was hard to assess. Her reactions to questioning were unpredictable and intense. At times she cried, seemingly uncontrollably. At other times, she reared up and expressed outrage at the Crown Prosecutor’s cross-examination:

“Q. So what you had agreed to assist with was exposing, depriving those children of their father or stepfather.

A. I did not agree, but if that’s what you’re asking - you’re flogging a dead horse here. I’ve pled guilty. What more do you want from me?” [35]

…

“Q. At the time, you knew yourself that you were exposing yourself to very serious offending?

A. Might I put it to you that if I didn’t, I might be the one that was six foot under. It was - it came about around the time of that Allison Baden-Clay case up in Queensland and I think it was seeing that on the news that had his - had the wheels turning in his head when they were.” [36]

…

“…You're putting it to me like this was a, you know, we were like two evil Bonnie and Clyde. This was not the case. This is not the case.” [37]

35. T 64.

36. T 64.

37. T 64.

49. An assessment of Ms Martin’s evidence is very difficult. The observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy are important:[38]

“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.”

38. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31].

50. Further, it is easy – but wrong – for a sentencing Judge to approach the evidence of an offender with cynicism and distaste but impossible to know how a person in Ms Martin’s situation will react and whether those reactions are genuine or feigned or exaggerated. Ms Martin has never been in trouble before and, I assume, has never given evidence and been subject to cross-examination. The courtroom is a foreign and bewildering place and the offender gave her evidence in circumstances where her future, and the future of her young children, lay in the balance. This adds layer upon layer to the complexity of the task of making a reasoned and accurate assessment of her evidence. I have approached the task of assessing her evidence and her demeanour with considerable caution.

51. Even allowing for the difficulties in assessing a person’s demeanour and emotional responses in the witness box, I got no real sense that Ms Martin truly comprehended the enormity and gravity of what she and her ex-husband did. When asked about “the choices [she] made” from April 2014 and 2015 she said:

“Disgusted. I just wish I could go back, right, right back and just never, never have allowed Micheal to make contact. I wish I could go back to 2010 and do things so much differently.” [39]

39. T 50.

52. While I accepted the sincerity of this part of her evidence, there appeared to be scant acknowledgement of the pain and suffering experienced by the deceased in the attempted murder or the moral delinquency that attended her involvement in the first offence and her active participation in covering up the killing of a human being. A report prepared by a well-qualified forensic psychologist referred to her “feelings of guilt, stress and depression”, [40] but problems attenuating that report are such that it is difficult to come to a positive finding (even on balance) that Ms Martin has gained a full insight on the brutality and selfishness involved in her actions. I have considered the references of her parents, husband and friend and the things she said in the two conversations recorded by listening device. Having considered all of the evidence, I think she remains in a state of partial denial and self-justification.

    40. Ex 1, Tab 2, p 18.

53. On the other hand, I am satisfied that the emotion she exhibited when giving evidence about her children and her new relationship was genuine. I accepted her evidence on those subjects.

54. I also accepted that by the end of 2013, and throughout the period of the offending, her relationship with Mr Martin was dysfunctional and at times violent. Ms Martin acknowledged in her evidence and in her induced statement that the violence between the couple went both ways. For example, she described an incident in January or February 2014 when the couple fought after she discovered he was taking out an insurance policy on the deceased’s life. That culminated in the co-offender slapping her and calling her an “ungrateful bitch”. Her response was to break “out of his hold and punch him in the nose making it bleed”. [41] She told him “you might be capable of sick shit, but I will never go down without a fight”. She referred to the fact that she was trained in martial arts.

    41. Ex 1, Tab 1 [53].

55. The offender’s account of some of the violence in the relationship also receives support in other evidence tendered on sentence. For example, when her ex-husband made an apparent suicide attempt in December 2013, investigating police in Queensland took out a “Protection Order” [42] in which the offender was nominated as the “aggrieved” and her husband as the “respondent”. [43] The narrative described an incident of mutual abuse after a Christmas party. It appears that Mr Martin, who was very drunk, started the fight. Ms Martin called him “a cunt” and threw his “home brew” on the floor. Mr Martin then threatened to commit suicide and tied a rope around his neck. The order was sought to prevent Ms Martin having “ongoing worry and stress” and because it was “unknown the extent the respondent may go to in possibly harming the aggrieved in the future”. A second protection order was taken out in February 2015 and described “emotional blackmail”, Mr Martin calling the offender a “selfish bitch” and other abusive and manipulative behaviour. The order also refers to things said by one of the children that support the evidence that her husband was violent towards her.

    42. The Queensland equivalent of an apprehended domestic violence order.

    43. Ex 1, Tab 3.

56. There was more support of Ms Martin’s evidence of violence in the relationship in the evidence (written and oral) of her mother and father. Each described an occasion when one of the young children told them of violence. Mr Owen said that the child told him “daddy (Micheal) had thrown a glass through the window, threatened mummy with a knife and also said he was going to burn the house down.” [44] Mrs Owen provided an affidavit that included an assertion that the same child told her “Micheal ‘got mummy with a knife’”. [45] The evidence of what the child told his grandparents corroborates an incident referred to by Ms Martin in her induced statement. [46] She described an occasion in early 2015 when an argument about what her husband had done escalated:

“He stormed off into the kitchen and he returned with a butcher knife. He had that raging look on his face … I dropped to the floor in the hallway. I was thinking ‘this is it.’ Then [the child] came running over from the room to me [and said] ‘No! No Daddy. NOOO!’”

44. Ex 2, Tab 3.

45. Ex 2, Tab 5 [38].

46. Ex 2, Tab 1, [207].

57. Mr Owen also described the state of the house in February 2015. He said there were windows smashed in, overflowing ashtrays, empty liquor bottles and a room “smelling of aged vomit”.

58. There is reference to the abusive nature of the relationship in the two listening device recordings. At one stage Ms Broad said “Micheal never threatened me, but he threatened you.” [47] In the conversation recorded in the Brisbane Watch House Ms Martin referred to her husband as “an abusive arsehole”. [48]

    47. Ex A, Tab 5, p 5.

    48. Ex A, Tab 7, p 2.

59. There is also evidence that Ms Martin withdrew from a number of friendships and became isolated in the course of her relationship with the co-offender. This evidence came from Ms Martin herself, from the psychologist (based on a history), from her parents and from a close friend (Jade Whitfield). [49] The psychologist’s report described Ms Martin’s symptoms as being consistent with her suffering from Post Traumatic Stress Disorder. It is not completely clear whether Ms Martin in fact suffered from this disorder, and whether it arose out of the relationship with Mr Martin up until April 2014 or arose after, and because of, her involvement in, and knowledge, of the offences.

    49. Ex 2, Tab 6.

60. Based on all of the evidence (including the induced statement, Ms Martin’s evidence, the evidence of her parents and friends, the protection orders taken out in Queensland, and the content of the psychologist’s report), I am satisfied that the relationship with Mr Martin was dysfunctional, and at times violent, and that Mr Martin was manipulative and himself suffered significant mental health issues that impacted on the offender.

61. However, I am unable to determine (on balance) whether some of the more dramatic and extravagant aspects of Ms Martin’s account are true or not. For example, I cannot determine whether Mr Martin made an implied threat by showing her the severed head of a puppy or whether, after he was discovered grinding down the sword, Mr Martin held the blade to Ms Martin’s throat. I am unable to determine the truthfulness of the implication that the co-offender used a syringe to inject unhygienic items in to his father when he was in hospital recovering from the first attempt on his life. Parts of that version are difficult to accept. [50] As to the allegation about the puppy, the conversation recorded with Ms Broad provides a different account and suggests that the contents of the statement are exaggerated. After part of the conversation that was indecipherable, Ms Broad asked “He killed your dog? Why?” Ms Martin replied:

“Because she went, she bit me, but he started to cut her head off and um, seriously I’m fine, this is the first time I’ve cried about it.” [51]

50. See Ex 1, Tab 1, [127]-[130], T 68-69.

51. Ex A, Tab 5, p 5.

62. I cannot determine the truthfulness of Ms Martin’s assertion that Eddie Manning (the deceased’s housemate) said to Mr Martin at the hospital after the April attack “You owe me huge”, thus giving rise to the inference that Mr Manning was part of the plan to kill the deceased.

63. These are just some examples of matters where I am simply unable to determine where the truth lies. As the High Court made clear in Olbrich v The Queen:[52]

“Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence.” 

52. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [16].

The psychologist’s report and conclusions arising from that report

64. I have made passing reference to a psychologist’s report tendered on sentence. [53] I have taken into account its contents but it is a document that I approach with circumspection. In parts it is very difficult to understand. For example, I do not know what the report means when the author says:

“She presents with levels of clinical phenomena that is often seen within clinical populations…” [54]

53. Ex 1, Tab 2.

54. Ibid, [53].

65. That perhaps impenetrable observation is made in a paragraph that sets out the results of certain testing known as a Personality Assessment Inventory (PAI). Initially the results of the PAI were considered to be invalid because of the way in which Ms Martin responded to the questioning. [55] While the results of the second attempt “were considered valid”, the psychologist offered a number of caveats suggesting that Ms Martin “may exaggerate complaints” and “tended to endorse items that present an unfavourable impression of her or represent bizarre and unlikely symptoms”. [56] The result was that the PAI threw up “significant elevations across several clinical scales giving rise to the possibility many possible diagnoses.” [57] The psychologist said the results had to be “interpreted with caution” and noted the possibilities (amongst others) of “a cry for help”, a “major depressive episode”, “phobic behaviour”, “hyper vigilance” and submissiveness due to “fear of abandonment”. The author noted that the “possibility” of imminent incarceration may have caused the elevation in clinical symptoms but ultimately concluded that “she presents with symptoms suggestive of affective disorders and these likely impair her level of functioning”. [58]

    55. Ibid, [47].

    56. Ibid, [48].

    57. Ibid, [49].

    58. Ibid, [53].

66. I have not lost sight of the fact that a sentencing Judge faced with evidence of an offender’s mental condition “ought not to approach the task in an unduly technical or restrictive way”. [59] Even so, the evidence in this case presents particular difficulties. In spite of the manifest problems with the report, and the distinct possibility of malingering on the part of the subject, I am satisfied that Ms Martin is suffering from some form of psychological distress, or is at least emotionally vulnerable and fragile.

    59. Luque v R [2017] NSWCCA 226 at [114].

67. I am satisfied that her vulnerability, along with other particular features of her case (including separation from at least two and possibly all of her children), she will find her time in custody more onerous than most offenders.

68. I am also satisfied, for much the same reason, that the extent to which general deterrence should guide the sentencing process is somewhat muted. Any reasonable observer would appreciate that Ms Martin is not a particularly suitable vehicle through whom to send a message of deterrence because of her psychological fragility and the fact that she has four children under ten years old, at least two of whom suffer from significant medical or neurological conditions, and one of whom is a baby less than one year old. Even so, the nature of these crimes is such that deterrence remains a matter of real significance.

69. Neither the psychological evidence nor anything else leads to a conclusion that Ms Martin’s moral culpability is diminished to any significant extent.

Was Ms Martin acting under duress?

70. It was submitted that Ms Martin was acting under duress and that this constitutes a mitigating feature of her offending. [60] In considering the issue of duress I have taken into account the submissions made on the subject by counsel for Ms Martin [61] and on the observations of Johnson J in Tiknius v R. [62] The concept of “non-exculpatory duress” presents a much lower hurdle conceptually to that which applies when an offender attempts to avoid conviction. However, the onus of proof shifts to the offender on the balance of probabilities. That presents a problem when the offender’s account, in a number of respects, lacks credibility. I acknowledge the force of the offender’s submission that some of her conduct that ostensibly undermines the proposition that she acted under duress might be seen as being “fairly commonly seen from victims of abusive relationships”. [63] Even though there was little evidence to support this contention, the criminal courts are commonly confronted with the enigma of a victim of domestic abuse who appears to remain compliant and to continue to exhibit fondness and love for their tormenter. [64] Some reliance was placed on the observations of Adams J in R v Anderson but (as acknowledged by counsel) that was a very different case. [65]

    60. Sentencing Act, s 21A(3)(d).

    61. Especially in written submissions at [34]-[46].

    62. Tiknius v R [2011] NSWCCA 215 at [31]-[54].

    63. Offender’s written submissions [44].

    64. See, for example, R v Anderson [2011] NSWSC 1689.

    65. Ibid, at [28].

71. I am not satisfied on the balance of probabilities that Ms Martin was acting under duress when she agreed to participate in the attempted murder of her father-in-law or when she attempted to provide her husband with a false alibi to cover his movements. I am unable to determine the extent to which her account of the events leading up to the 7 April 2015, including what she says happened on the drive home from Murwillumbah on 6 April 2014, is true. [66] As I have already said, I believe her motivation was complex and included a misguided sense of loyalty, a response to emotional blackmail, and greed.

    66. Ex 1, Tab 1, [72]-[85].

72. I am also unable to accept (on balance) that Ms Martin acted under duress in covering up her husband’s role in the murder. I accept that the violence she alleges in early 2015 receives some support from the things said by her son to each of her parents. However, by that time she had successfully assisted her husband to avoid detection for six months.

73. In reaching these conclusions, I have taken into account the fact that on a number of occasions (according to her statement) she responded to abusive encounters with violence of her own. I have already referred to the occasion when she punched him in the nose using her martial arts training. When threatened in around June 2014 she told her husband: [67]

“I hate you” … “I’m not scared of what I hate” … “Go on, try to touch me! I’ll be ready!” and “You threaten my family again and you will be the one who ends up worse off”.

67. Ex 1, Tab 1, [130].

74. I have also taken into account the evidence that Ms Martin went on a holiday to Fiji with her husband in September 2014 (a matter that was omitted from her detailed induced statement). [68] I have also considered the tone and content of a recorded telephone conversation on 4 February 2015. [69] This call, in which Ms Martin speaks fondly to her then husband, occurred after the incident in which Ms Martin alleges Mr Martin showed her the severed head of a puppy by way of an implied threat. Even allowing for the unpredictable ways in which a victim of a violent relationship may react, the evidence is not consistent with an assertion that the offender acted as a result of duress.

    68. T 51-52, Ex C.

    69. T 53, Ex D.

75. Further, I am satisfied that Ms Martin was motivated more by the desire to protect her children from losing their father, from the possibility of obtaining some financial benefit, and from a misguided sense of loyalty to a man she did not want to lose. She said such things in both of the conversations recorded by listening device. [70] As to the presence of a financial motive, Ms Martin offered Ms Broad money for her silence (or suggested that her husband would pay her part of the insurance money) and asked for a $250,000 house for her children in the text message of 9 February 2015. In that same text she said “Greed has ruined me; ruined us!” [71]

    70. Ex A, Tabs 5 and 7.

    71. Ex A, Tab 1, [50].

76. I have taken into account the abusive nature of the relationship, and the fragility of Ms Martin’s emotional state, in assessing her actions in relation to these two offences. More probably than not, Ms Martin felt lost and helpless as the situation developed and escalated from February 2014 until both her husband and she were arrested. I am sure that she had mixed motives and loyalties. However, she could at any time have sought the assistance of the police. [72] Instead, she witnessed her husband’s signature on an insurance claim, offered a witness money on his behalf, and continued to mislead police even after her husband was taken into custody. In all of the circumstances I do not accept that she has established duress as a mitigating feature.

    72. Cf Tiknius v R at [50]-[53].

The impact of the sentencing on the offender’s family and children

77. Binding authority prohibits a sentencing Judge from taking into account the impact of a sentence on third parties unless the case is wholly exceptional. [73] I have considered that principle but am satisfied that the present case comfortably represents an exception to the general rule. The hardship to the offender’s family in the present case is properly categorised as “extreme hardship”. The case is wholly exceptional and extraordinary.

    73. See, for example, Edwards (1996) 90 A Crim R 510 at 515-517, R v MacLeod [2013] NSWCCA 108 at [43]-[52]; Hoskins v R [2016] NSWCCA 157 at [62]-[64].

78. Ms Martin has four children aged between 9 months and 7 years. Their names cannot be published and I will refer to them by letters.

79. The oldest child (“O”) was the issue of a relationship that preceded the marriage between the offender and Mr Martin. O lives with his father and has some contact with his maternal grandparents. It is agreed between the parties that the bail conditions made it difficult for the offender to have contact with him since her arrest. I understand there has been no contact as a result. That has made Ms Martin’s remand period particularly onerous and that is a matter that I take into account in assessing an appropriate sentence.

80. The second and third children are the product of Ms Martin’s marriage to the co-offender. M (a son) is 5 years old and R (a daughter) is 4. M has a range of issues that are described in two medical reports. [74] He was born prematurely and suffered several life threatening events in his first six months. He has a “range of sensory issues”, “major problems managing change” and is significantly delayed developmentally. He requires assistance with all everyday aspects of his life. A report dated 17 October 2017 diagnosed M with “pervasive development delay” and “autistic disorder”. An attempt for him to commence “prep” school failed. His behavioural issues are serious and troubling. Dr Weslyn provided the following opinion:

“[M] would definitely benefit from having his mother as his primary carer. I also believe that his mother going to prison would be detrimental and would significantly affect his health and wellbeing negatively.”

74. Ex 1, Tabs 9 and 10.

81. Mr Owen (the offender’s father) gave moving evidence of the impact on the children of their mother’s incarceration and in particular the impact on M: [75]

“A. Actually it’ll absolutely devastate the children. As stated in the reference letters and what-not, the children were all born extremely prematurely, lucky to have survived the birthing process. Months after each birth, each child has to spend those months in hospital building up immunities, going through various health issues before they were allowed to go home. The youngest one currently is still on oxygen at the moment. They’ve got a variety of health issues ranging from autism spectrum, brain, lung, heart problems with the current infant. Yeah, I know when Candace was originally arrested the - M, the second oldest child, he would wake screaming in the night, basically sort of night terrors, and every time Candace basically leaves the room it’s like, ‘Is Mummy coming back?’ and for M, just M alone, … he will not cope.”

75. T 30.

82. R, who is just 4 years old, will also miss her mother and will suffer from her mother’s incarceration. She will be, as described by the offender’s new husband, “orphaned”.

83. The youngest child is J. He is a nine-month-old baby born in January this year. He was also born prematurely and has a variety of serious medical issues detailed in the reports of his treating doctors and a social worker. [76] He has had several admissions to hospital. In July he was treated for “enteroviros meningitis” and “adenovirus bronchitis”. He was only able to be released from hospital “because his mother Candace is trained in managing his various high needs at home including the NG tube, home oxygen and monitoring for seizures”. The social worker expresses the opinion that it is in the baby’s best interest that “leniency [should be] shown towards Candace” because “he requires the support and love of a parent, and Candace is the best person to care and nurture this little boy”. J’s father provided a similar opinion. [77]

    76. Ex 1, Tabs 5, 6, 7 and 8.

    77. Ex 2, Tab 4.

84. In these circumstances the case must be dealt with in a way that might otherwise be seen as involving an undue amount of leniency given the seriousness of the offending and the sanctity that the law places on human life. Notwithstanding the force and currency of the remarks made by Gleeson CJ in Edwards, a number of subsequent cases have explained the different approach where the well being of children of tender years is at stake. In HJ v R, Garling J (Hoeben CJ at CL and Hulme J agreeing) summarised some of these cases in the following important passage:[78]

    78. HJ v R [2014] NSWCCA 21.

“67 This Court has held that the fact that a person to be sentenced is the mother of young baby is a relevant factor to take into account: see R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23. In that case, the applicant was standing for sentence about two months after her baby was born. That fact was well known to the sentencing Judge who had adjourned the proceedings on sentence to await the birth of the applicant's child. At [5] Spigelman CJ said with respect to an alleged failure by the sentencing Judge to deal with the matter appropriately because the sentencing Judge had imposed an order suspending the sentence of imprisonment, this:

‘Furthermore, the order suspending the sentence could not be justified on the basis that the respondent would be separated from her child for an unknown period. His Honour could, and should, have deferred sentencing until the respondent had been assessed, so that the Court knew whether or not there would be any separation.’

68 The Chief Justice went on to say, at [7]:

‘In an appropriate case, the inability of prison authorities to provide for detention in a humane manner will justify a court refusing to impose a custodial sentence. That was not shown to be the case here. His Honour was correct to conclude that the evidence from the Department of Corrective Services revealed a process that involved unacceptable delays so that the probable separation of mother and baby could be regarded as inhumane. However, his Honour failed to have regard to the fact that, by deferring by the sentencing task, he may have been able to ensure that, with the cooperation of authorities and subject to a positive assessment, there would be no such separation.’

69 It was noted in Togias, where the applicant was an adult, that the provisions of s 16A(2)(p) of the Crimes Act 1914 (Cth) required a court to have regard to, where relevant, ‘the probable effect that any sentence or order under consideration would have on any of the person's family or dependants’.

70 It was noted that the authorities provided that exceptional circumstances needed to exist before that provision could be considered: R v Edwards (1996) 90 A Crim R 510 at 516-517; R v Ceissman (2001) 119 A Crim R 535 at 540-541 [36].

71 As the judgment of Spigelman CJ in Togias demonstrates, Articles 3.1, 9.1 and 9.4 of the United Nations Convention on the Rights of the Child 1989, may all have relevance. However, I note in this case no party drew attention to these provisions, or sought to rely upon them for the purpose of any submissions. Accordingly, in the absence of full argument, it is inappropriate for this Court to deal with the relevance of this Convention.

72 At [67] of Togias, Grove J (with whom Spigelman CJ agreed) with respect to whether or not the sentencing Judge ought to have adjourned the proceedings to obtain further information with respect to the applicant and her child, said this:

‘Adjournment sine die is not contemplated but a limited delay to obtain useful information. What was required was firm evidence of what conditions would pertain in relation to this respondent and her child in the event that an order committing her to prison were to be made. The evidence tendered was limited to generalities. No attempt was made to obtain focussed information. It is possible that a response in particular terms may not be forthcoming from Corrective Services, but such situation would need to be take into account if it arose. His Honour elected to proceed without knowing what the situation was in this regard.’

73 In SLR this Court held in circumstances where the applicant was pregnant at the time of sentencing, that the fact that the Juvenile Justice Centre, where the applicant was then detained, would not be able to accommodate the applicant's newborn child immediately following its birth, and that no other juvenile facilities in NSW were available which could so accommodate them, was a relevant factor for the sentencing Judge to take into account.

74 Interestingly, in light of the material agreed in this Court about appropriate arrangements for mothers and young babies in custody, to which no attention was paid in the Court below, the Crown in SLR submitted that

‘... the applicant should not be separated from her newborn baby because an order directing her to serve her sentence in a detention centre in advertently deprived her of a facility which is available to adult female prisoners namely, to keep their babies with them up until the age of 5 years.’

75 In SLR, in circumstances where the sentencing Judge had not specifically adverted to the inability of the applicant to have her child with her after birth, this Court intervened to alter the sentence imposed upon the offender. The effect of the alteration was to ensure that after the birth of the offender's child, she was transferred to an adult prison where facilities were available to keep her child and where an application could be made for leave under the then current s 29(2)(c) of the Correctional Centres Act 1952. That provision now exists, in similar terms, in s 26 of the Crimes (Administration of Sentences) Act 1999.

85. No submission was made as to the United Nations Convention on the Rights of the Child but I have taken its principles into account in determining the appropriate sentencing response to this case in which the offending calls for condign punishment but the circumstances of four children is dire as a result of their parents’ criminal conduct. The only comfort is that each of the children will be cared for by a loving parent, or step-parent or grand-parents during the period of the offender’s incarceration.

The Mothers and Children Program

86. Having read the material to be relied on by the offender, I asked my staff to make contact with the officers in charge of a programme within Department of Justice, Corrective Services known as the “Mothers and Children Program”. [79] An 8-page information sheet was provided by the co-ordinator of that programme. Copies of this document were provided to the parties. [80] In turn, it was tendered in evidence. [81] The Mothers and Children Program provides custodial accommodation for offenders who are the mothers of young children. The programme can accommodate children of less than school age. This would apply to M, R and J. However, it is not known whether the programme could accommodate any or all of the children. Nor is it known whether the programme would be able to accommodate the medical needs of J or be able to cope with the behavioural issues presented by M.

    79. T 81-82.

    80. T 83.

    81. T 90, Ex 3.

87. On the information before me, I must accept the submission of Mr Healy that the programme seems to involve “a post-incarceration assessment process”. [82] That means that I must sentence Ms Martin on the basis of incomplete information. I do not know whether the offender, or M, R or J will be able to be accommodated by the Mothers and Children Program. In either case, the appropriate course in sentencing Ms Martin is to impose the shortest possible non-parole period.

    82. T 82.

88. I note that the information provided suggests that the assessment process can take “less than one week”. [83] However, the same part of the document suggests that this applies to the assessment of “an offender accused or convicted of a non-violent offence”. For the purpose of those considering any application by Ms Martin for admission to the programme, I indicate there is no evidence that Ms Martin perpetrated any violence in the course of either offence. While the offences for which she is to be sentenced are, on their face, extremely serious offences of violence, I repeat that Ms Martin’s role did not involve committing any act of violence.

    83. Ex 3 p 5.

89. I propose to make recommendations and directions to facilitate the possible expedition of the process by which Ms Martin might be admitted to the Mothers and Children Program. However, I am not sanguine as to her prospects and proceed on the basis that there is likely to be a substantial period of separation from the children.

A new start and positive signs for the future

90. The lack of prior convictions and the references tendered in her case satisfies me that Ms Martin was a person of prior good character. [84]

    84. See s 21A(3)(e) and (f).

91. Ms Martin is now in a relationship with J’s father. They are married and their relationship appears to be a positive one. J’s father provided a reference and both of Ms Martin’s parents suggested the new relationship has resulted in positive changes in the offender. [85]

    85. Ex 2, Tabs 3, 4 and 5.

92. Based on this material, the dissolution of the dysfunctional relationship with the co-offender, the incentive to reform provided by her children, the absence of any prior criminal history and the opinion of the psychologist, I have concluded that Ms Martin has good prospects of rehabilitation and is unlikely to re-offend. [86] I have reached that conclusion in spite of the lack of insight that Ms Martin appears to have into the gravity of the offending, the difficulties associated with her evidence, and her interaction with the psychologist. I took those matters into account, but am satisfied on the balance of probabilities that the relevant mitigating features are established.

    86. See s 21A(3)(g) and (h).

STRUCTURING THE SENTENCE: accumulation, aggregate sentencing and special circumsances

93. It would be open to impose a single aggregate sentence under s 53A of the Sentencing Act. However, it is more appropriate in this case to impose separate sentences. This is because there are only two sentences to be imposed, different discounts apply to each, and one offence involves a standard non-parole period while the other does not. Those factors do not mean that an aggregate sentence cannot be imposed but they militate against it. For the sake of transparency, it is preferable in this case to impose separate sentences.

94. There must be some accumulation of the two sentences. Ordinarily, there would be far more substantial accumulation than I propose to order. The reason for the modest degree of accumulation is my intention to impose the shortest possible non-parole period. I propose to impose a fixed term in relation to the second offence (the accessory after) and to commence that sentence on 26 October 2017. That date is agreed between the parties and takes into account 8 days that the offender spent in custody prior to being released on bail. For the purpose of s 45 of the Sentencing Act, the reasons that I decline to set a non-parole period concern the structure of the total sentence and because the sentence for the attempted murder will commence eighteen months later and will subsume the balance of that sentence.

95. In relation to the attempted murder I find special circumstances pursuant to s 44 of the Sentencing Act and will make a substantial reduction in the non-parole period that would otherwise apply as a result of the operation of that section. The special circumstances are constituted by the accumulation of the sentence on the sentence for the accessory after offence and the exceptional factual circumstances concerning the offender’s children. As I have said on more than one occasion, the adjustment to the non-parole period will be a seemingly extreme one. It is calculated to achieve the lowest possible non-parole period in order to minimise (1) any period of separation between the offender and her children (especially those with special needs) or (2), if she is accepted into the Mothers and Children Program, the period that the children are held in custody with their mother.

96. At the same time, both the modest degree of accumulation and the substantial downward adjustment of the non-parole period ought not to result in a sentence that is unreasonably disproportionate to the grave criminality involved in these offences. The total sentence (that is the non-parole period and balance of term) should reflect the seriousness of the offence and serve the objectives of punishment that dictate that a significant gaol sentence must be imposed on somebody who has committed offences as objectively grave as those with which the Court is presently dealing.

THE LENGTH OF THE SENTENCE: CONSISTENCY OF PUNISHMENT, COMPARATIVE SENTENCes AND INDIVIDUAL JUSTICE

97. A fair system of criminal justice requires that there be reasonable consistency in the punishment imposed on offenders in different cases with similar characteristics. [87] At the same time, sentencing requires individualised justice. If justice is not individual “it is nothing”. [88]

    87. See, for example, Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; (2001) 207 CLR 584 at 591 [6] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [49].

    88. R v Latouf (CCA (NSW), Mahoney ACJ, 12 December 1996, unrep).

98. The Crown took me to the summary of cases on accessory after the fact to murder that are attached to my judgment in R v Johnson. [89] In settling on the appropriate sentence for that charge, I have considered the outcomes in other cases. But none of the cases are the same as this one and none include the kind of personal and family circumstances that attend the present case.

    89. R v Johnson [2014] NSWSC 1254.

99. As to the attempted murder, neither party was able to find a case with similar features. That is: a case where the objective facts of the attempted murder were at the extreme end of the spectrum but the offender’s role was limited to providing a false alibi and other assistance. I have considered the statistics maintained by the Judicial Commission albeit with the caution that must attend such a consideration. All 34 cases in the database resulted in full-time custodial sentences and only one of those involved a non-parole period of less that 4½ years. That was a non-parole period of 2 years. The overwhelming number of cases (75%) resulted in total sentences of 10 years or more for the principal offence. I have also considered the judgments of the Court of Criminal Appeal in Williams v R [90] and Shine v R. [91] Williams resulted in a sentence of 10 years with a non-parole period of 7 years, but that was after a 45% discount for a plea of guilty and assistance. That sentence was not disturbed on appeal. Shine was sentenced to 9 years with a non-parole period of 5 years after a successful appeal. He received a 25% discount for his plea and suffered from a significant mental illness that had a marked impact on the appropriate sentence. There was psychiatric evidence that he did not know that what he was doing was wrong and this reduced his moral culpability. [92]

    90. Williams v R [2013] NSWCCA 168.

    91. Shine v R [2016] NSWCCA 149.

    92. Ibid, for example, at [99] (Bathurst CJ).

100. Having considered those cases and the statistics, I must apply the principle of individual justice and settle on a sentence that appears to be just by synthesising the many relevant factors which pull, as often they do, in different directions.

SENTENCING

101. In relation to the offence of accessory after the fact to murder, I would commence with a starting point of 5 years. Applying a discount of 35% for the plea of guilty and offer of assistance, the resulting sentence will be one of 3 years and three months. I decline to set a non-parole period for the reasons explained above.

102. In relation to the offence of attempted murder, the starting point will be 10 years. Applying the discount of 25%, the result is a total sentence of 7½ years. That sentence will commence 18 months after the sentence imposed for the accessory after offence. Giving effect to the finding of special circumstance, and my stated intention to impose as short a non-parole period as I can in the proper exercise of discretion, there will be a non-parole period of 2½ years.

103. The total effective sentence will therefore be one of 9 years with a total effective non-parole period of 4 years.

104. Candace Martin, you are convicted of both offences:

1. For the offence of being an accessory after the fact to the murder of Michael Anthony Martin, you a sentenced to a fixed term of imprisonment of three years and three months commencing on 26 October 2017 and expiring on 25 January 2021.

2. For the offence of attempted murder of Michael Anthony Martin, you are sentenced to a non-parole period of 2½ years commencing on 26 April 2019 and expiring on 25 October 2021. There will be a balance of term of 5 years commencing on 26 October 2021 and expiring on 25 October 2026.

3. You will be eligible for release on parole at the conclusion of the non-parole period for the attempted murder.

4. By section 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to warn you that the provisions of that Act apply to the offence of attempted murder and I direct your legal representatives to explain to you the possible impact of that Act at the conclusion of the sentence and non-parole period.

5. I recommend that any application for inclusion in the Mothers and Children Program be assessed as quickly as possible.

1. I direct my Associate to provide to the co-ordinator of the Mothers and Children Program the following documents:

1. A copy of this judgment.

2. A copy of the transcript of these proceedings.

3. A copy of all exhibits tendered in the proceedings drawing particular attention to exhibits A (Tab 1), B, E, 1, 2 and 3.

********

Endnotes