By Paul Gregoire and Ugur Nedim
In May 2014, two drive-by shootings were committed at the Bossley Park home of Wade Martinez.
NSW police believed Gewargis Garmo was connected to these incidents. Martinez would not cooperate with inquiries into them. But it’s been suggested he thought to take care of the matter himself.
Nine months later, then 20-year-old Garmo stopped to speak with Jade McVerry outside her family home, when Martinez spotted him from inside the house. The then 21-year-old grabbed a knife and appeared on the roadside. An altercation occurred, Garmo’s hand was cut, and he fled the scene.
Martinez, accompanied by his friend Jake Tortell, gave chase. The pair did so in the latter’s black Lexus. McVerry then set out and collected Garmo in her Toyota Camry, which Martinez then pursued at high speed, as he was driving his 18-year-old companion’s vehicle.
As the two cars came to a halt at an intersection, Garmo got out and ran. Tortell gave chase on foot, whereas, after returning to the Lexus to apply the handbrake, Martinez continued to follow the pair in the motor vehicle.
Martinez and Tortell caught Garmo in a backyard. He was stabbed nine times, with a wound close to his heart proving fatal. The knife used during the killing proved contentious in court, but the judge was satisfied it was the kitchen knife.
Yet, how the knife arrived at the scene remains unknown, as does whether Martinez or Tortell inflicted the fatal wound.
An unintentional killing
Martinez and Tortell stood trial in early 2017. Both were found guilty of murder. However, the NSW Court of Criminal Appeal (NSWCCA) quashed these convictions in mid-2019, with the case being remitted to the NSW Supreme Court for retrial.
Both men then stood trial for murder in late 2019. Contained in section 18 of the Crimes Act 1900 (NSW), this offence, which involves the intentional or reckless killing of a person, carries a maximum penalty of life imprisonment.
The jury found the pair guilty of the lesser charge of manslaughter on 17 December 2019. Also, in section 18 of the Crimes Act, this offence entails the act of killing a person unintentionally via a dangerous and unlawful act. And it carries up to 25 years inside.
On 20 March 2020, Supreme Court Justice Peter Johnson sentenced Martinez to 10 years and 6 months prison time, with non-parole set at 7 years and 7 months. Tortell was sent away for 8 years and 5 months, with release on parole being available at 5 years and 6 months into his sentence.
The pair both received a 5 percent discount to their sentence as they had offered to plead guilty to manslaughter just prior to their second trial.
Martinez also faced one count of reckless wounding, contrary to section 35(4) of the Crimes Act. This charge was in relation to the initial knife wound to Garmo’s hand. The jury found the defendant not guilty of this crime, which carries a maximum of 7 years gaol time.
Sentencing considerations
Justice Johnson noted a number of matters that affected his deliberations on sentencing Martinez. The first was the then 26-year-old’s troubled upbringing, as well as his past crimes involving aggravated robbery and assaulting police.
His Honour found Martinez more culpable of the killing due to his harboured animosity towards Garmo. He further set out that both offenders had shown no contrition or remorse. And while the justice found “special circumstances” in relation to Tortell’s age, he didn’t for the older offender.
Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates that a parole period must not exceed a third of the time an offender has to remain behind bars. However, if a judge finds special circumstances more time can be spent in the community under supervision.
Although, while the trial judge didn’t find special circumstances, Martinez’s non-parole period was slightly lower than the statutorily required 75 percent non-parole period relating to an overall sentence.
The final consideration involved two offers to plead guilty to manslaughter made by the offenders. The second offer was based on the offence then being considered an “extended joint criminal enterprise” without any identification made in regard to who perpetrated the fatal blow.
These offers were both rejected by the Crown. But the second offer did result in the 5 percent sentencing discount.
On appeal
Martinez appealed his sentence to the NSWCCA on 5 November last year, based on five grounds, the first three of which weren’t upheld.
These related to whether the judge was wrong to consider the knife used to be the one Martinez procured from the McVerry’s, if there was an error in finding Tortell didn’t inflict the fatal wound, as well as questions about the initial on-the-street wound being mentioned in sentencing deliberations.
The fourth ground concerned the 5 percent sentencing discount that related to the second offer to plead guilty. Martinez’s legal team stated that as the offer was made prior to the trial it should have garnered a 10 percent discount.
NSW Chief Judge at Common Law Robert Beech-Jones considered the authorities on this issue, which outline that the utilitarian value that an early guilty plea has on the criminal justice system should result in a 10 to 25 percent discount. Although this is a guidepost, not a requirement.
His Honour went on to uphold this contention, as he found the sentencing judge had not considered the “lost utilitarian benefit” the early guilty plea could have had on the case if the jury had been presented with it.
The final ground was whether the sentencing judge had made an error in not finding special circumstances based on Martinez’s age.
The NSWCCA justice did not uphold this ground, as the sentencing judge had not made this determination in relation to the older offender as his prior criminal record had “guarded” against it.
The orders made
Justice Beech Jones determined to quash the Supreme Court sanction and resentence the offender, whilst taking into account a 10 percent discount due to the utilitarian value of his early guilty plea.
On 11 February this year, his Honour sentenced Martinez to 9 years and 3 months prison time, with non-parole set at 6 years and 11 months. This meant the original sentence prior to discount stood at 10 years and 3 months on the inside.
NSWCCA Justices Robert MacFarlane and Paul Brereton agreed with the orders. However, the latter stipulated that he would have found special circumstances due to Martinez’s “relative youth at the time of the offence”.
