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

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

Given the jury’s manslaughter verdicts on the basis of joint criminal enterprise to cause harm falling short of grievous bodily harm, and that it cannot be determined who inflicted the fatal wounds, the offenders must each be sentenced for manslaughter as parties to that enterprise, but sentences should reflect individual culpability arising from subjective and objective assessment. Martinez’s prior animosity and role justified a higher sentence than Tortell, and both were given a 5% discount for late pre-trial offers to plead guilty to manslaughter.

Jurisdiction
Australia
Judgment Date
20 March 2020
Procedural Posture
Criminal / Sentence After Trial With Verdicts of Manslaughter
Outcome
Martinez: sentenced for manslaughter to 10 years and six months' imprisonment (non-parole period seven years and seven months, earliest parole 27 March 2023, sentence expires 26 February 2026). Tortell: sentenced for manslaughter to eight years and five months' imprisonment (non-parole period five years and six...
Legal Topics
['manslaughter' 'sentencing' 'joint Criminal Enterprise' 'objective Gravity' 'subjective Circumstances' 'discount for Guilty Plea Offer' 'general and Specific Deterrence']
['criminal Law'] ['manslaughter' 'sentencing' 'joint Criminal Enterprise' 'objective Gravity' 'subjective Circumstances' 'discount for Guilty Plea Offer' 'general and Specific Deterrence']

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Procedural Posture

Criminal / Sentence After Trial With Verdicts of Manslaughter

Legal Issues

  1. 1 ['On what basis should each offender be sentenced following a not guilty verdict to murder but guilty to manslaughter?' 'What are the objective and subjective factors relevant to the sentence for each offender?' 'Should any sentencing discounts apply due to offers to plead guilty to manslaughter?']

Ratio Decidendi

Given the jury’s manslaughter verdicts on the basis of joint criminal enterprise to cause harm falling short of grievous bodily harm, and that it cannot be determined who inflicted the fatal wounds, the offenders must each be sentenced for manslaughter as parties to that enterprise, but sentences should reflect individual culpability arising from subjective and objective assessment. Martinez’s prior animosity and role justified a higher sentence than Tortell, and both were given a 5% discount for late pre-trial offers to plead guilty to manslaughter.

Court Disposition

Martinez: sentenced for manslaughter to 10 years and six months' imprisonment (non-parole period seven years and seven months, earliest parole 27 March 2023, sentence expires 26 February 2026). Tortell: sentenced for manslaughter to eight years and five months' imprisonment (non-parole period five years and six...

Orders

  • ['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...