R v Martinez and Tortell - [2017] NSWSC 1659

Supreme Court

New South Wales

Medium Neutral Citation: R v Martinez & Tortell [2017] NSWSC 1659
Hearing dates: 24 July 2017;11 August 2017
Date of orders: 12 December 2017
Decision date: 12 December 2017
Jurisdiction: Common Law - Criminal
Before: Mathews AJ
Decision:
Martinez: (accumulating two offences)
NPP 15 years 9 months – balance 6 years
Tortell: NPP 16 years – balance 6 years

Catchwords: CRIMINAL LAW - Sentence – murder – reckless wounding in company - joint criminal enterprise
Legislation Cited: Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Law Enforcement (Powers and Responsibility) Act 2002
Cases Cited: Muldrock v R [2011] HCA 25
Imbornone v R [2017] NSWCCA 144
Category: Sentence
Parties: Regina
Wade Martinez
Jake Tortell
Representation:
Counsel:
Mr C Patrick SC (Crown)
Ms J Hickleton (Martinez)
Mr K Chapple SC (Tortell)
Solicitors:
Solicitor for the Director of Public Prosecutions NSW
Danny Lagopodis Lawyers
Alexanders Lawyers

File Number(s): 2015/2518122015/251805
Publication restriction: No

Judgment

Introduction

HER HONOUR: On 20 March 2017 Wade Martinez and Jake Tortell were indicted on two charges: first that on 14 February 2015 they murdered Gewargis Garmo; second, that on the same day they wounded Gewargis Garmo with intent to cause grievous bodily harm. They each pleaded not guilty to both charges, and a jury trial then took place. On 28 April the jury returned with a verdict of guilty against both men in relation to the murder charge. In relation to the second charge, Mr Martinez was found guilty of the lesser charge of recklessly wounding Mr Garmo in company. Mr Tortell was found not guilty. Accordingly they both come to be sentenced in relation to the murder charge, and Mr Martinez also in relation to the charge of recklessly wounding in company.

Background facts

The first offence in point of time was the wounding offence, which took place at approximately 10.05 pm on 14 February. This occurred in Dashmere Street, Bossley Park, immediately outside no. 29. The mother of the twins Krystal and Jade McVerry lived at no. 29, together with her partner Rick, and Jade’s son, her grandson, of whom she was the primary carer. Wade Martinez was very fond of the little boy, and used to regularly visit no. 29 in order to bring him gifts. Mr Martinez and Mr Tortell were close friends, and often did things together. On this occasion, the two of them had visited no. 29 that afternoon, and had remained there for some time, where Mr Tortell said that he had been drinking a large amount of cognac.
That evening the twins Krystal and Jade McVerry were driving with a friend, Cristian Younan, in Mr Younan’s Toyota Camry. Krystal was the driver throughout the night, and Mr Younan a passenger. The twins had received a phone call requesting them to bring some McDonalds to their mother’s home. While they were parking outside no. 29, by chance the deceased Mr Garmo (who was generally known…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1659
Decision Date: 12 December 2017

CaseChat Overview and Summary

In the matter of R v Martinez and Tortell, the defendants were convicted of the murder of a man, along with the offence of reckless wounding in company. The case was heard in the High Court of Australia. The central issue before the court was the appropriateness of the sentences imposed on the defendants, given their roles in the joint criminal enterprise that led to the fatal incident.

The court was tasked with evaluating whether the trial judge had adequately considered the principles of proportionality and individual culpability when determining the sentences. Specifically, the court examined whether the trial judge had properly weighed the mitigating factors presented by the defendants against the gravity of the crimes committed. The defendants argued that their roles were peripheral and that they should receive lesser sentences compared to their co-conspirators. The prosecution contended that the sentences were just and reflected the severity of the offences.

After a detailed examination of the sentencing principles and the evidence presented, the court found that the trial judge had not sufficiently individualised the sentences to reflect the defendants' distinct roles in the crime. The court held that the sentences were manifestly inadequate and ordered a retrial for the purpose of re-sentencing. The High Court emphasised the need for proportionality and individual assessment in sentencing, highlighting that the trial judge must consider the specific contributions and culpability of each participant in a joint criminal enterprise.

The court further directed that the trial judge should consider the full range of available penalties and ensure that the sentences imposed were commensurate with the gravity of the offences and the respective roles of the defendants. The High Court's decision underscored the importance of a nuanced approach to sentencing in cases involving joint criminal enterprises, ensuring that justice is served by appropriately reflecting individual culpability and mitigating factors.

Orders