R v Martin [2015] NSWSC 521 (7 May 2015)

Last Updated: 8 May 2015

Supreme Court

New South Wales

Case Name:	R v Martin
Medium Neutral Citation:	[2015] NSWSC 521
Hearing Date(s):	6 March 2015
Date of Orders:	7 May 2015
Decision Date:	7 May 2015
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	Convicted of murder. Sentenced to a term of imprisonment of 27 years, commencing on 6 September 2012 and expiring on 5 September 2039, with a non-parole period of 20 years, 3 months, expiring on 5 December 2032. The balance of term of 6 years, 9 months, is to expire on 5 September 2039.
Catchwords:	CRIMINAL LAW – sentence – murder – nature and seriousness of the offence – moral culpability – aggravating factors – mitigating factors – personal circumstances – victim impact statements – sentence imposed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing and Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 Dulihanty v R [2013] NSWCCA 275 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Dodd (1991) 57 A Crim R 349 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Category:	Sentence
Parties:	Regina Tyrone Earl Martin
Representation:	Counsel: Mr M Fox (Crown) Mr E Wilson SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid (NSW) (Offender)
File Number(s):	2012/279069
Publication Restriction:	None

JUDGMENT

On 6 September 2012, Tyrone Martin killed Jeffery Hindle, at his home on a remote property located near Braidwood. He never denied killing Mr Hindle, but always claimed that he had acted in self defence when he hit him in the head with a concrete block. He later offered to plead guilty to manslaughter, an offer which he made again at his trial, but those offers were not accepted by the Crown. At trial, the jury concluded that he had not acted in self defence, nor had he been provoked by Jeffery Hindle.
On 24 October 2014, Mr Martin was found guilty of murder. He now stands for sentence for that offence.

This Court’s task on sentencing

I will begin by explaining how that sentence must be arrived at, by reference to what legislation enacted by the Parliament and binding case law requires, in a sentencing exercise such as this.
The rules of evidence do not ordinarily apply at a sentencing hearing (see s 4 of the Evidence Act 1995 (NSW)), but nevertheless, the weight of the evidence which the parties then lead, must be critically assessed.
After a jury verdict, the sentencing judge must take a view of the facts which is consistent with the verdict which the jury has reached, with any reasonable doubt being resolved in favour of the accused (see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14]). This does not require a view of the facts which is most favourable to an offender (see R v Martin [1981] 2 NSWLR 640).
Disputes about factual findings must be resolved in the way discussed in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. That is, facts may not be taken into account in a way that is adverse to an accused, unless they have been established beyond reasonable doubt. However, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if they are proved on the balance of probabilities.
In arriving at the sentence the Court must bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those purposes are:

“(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

The sentence imposed on the offender must also reflect the gravity of the offence, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354). That was in issue in this case.
The sentence must also be determined in light of the maximum penalty imposed for the crime in question. In the case of murder, that is life imprisonment under s 19A of the Crimes Act 1900 (NSW).
The maximum sentence of life imprisonment is, however, reserved for extreme offences of murder. Section 61(1) of the Crimes (Sentencing Procedure) Act requires that a sentence of life imprisonment only be imposed if the Court is satisfied that the level of culpability in the commission of the murder is so extreme, that the community’s interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence on the offender.
It is for the Crown to establish that an offence falls within s 61(1). In this case the Crown did not seek to do so. I accept the parties’ common position that this is not a case which warrants the imposition of the maximum sentence, notwithstanding the obvious seriousness of Mr Martin’s offence.
The Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder, which falls in the middle of the range of objective seriousness of such offences. A non-parole period is the minimum period that an offender will serve in prison, before being eligible to be released on parole, for the balance of the sentence imposed for the offence.
Both the maximum penalty and the standard non-parole period are amongst the factors which must be taken into account on sentencing, as was discussed by the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 and is now provided in s 54B of the Crimes (Sentencing Procedure) Act.
In accordance with s 54A of the Crimes (Sentencing Procedure) Act, the seriousness of the offence must be assessed by taking into account only the objective factors affecting the relative seriousness of the offence in question. The offender’s moral culpability for the offence must also be taken into account (see Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600).
On sentencing, the Court must also consider identified aggravating and mitigating factors revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of the offence (see s 21A of the Crimes (Sentencing Procedure) Act). Consideration must also be given to questions of general and specific deterrence.
All of the relevant factors must be taken into account by way of the instinctive synthesis discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. That requires the sentencing judge to identify all of the factors that are relevant to be considered on sentencing in the particular case, discussing their significance and making a value judgment as to what the appropriate sentence for that offence is. The sentence so imposed must ensure that there is a reasonable proportionality between the sentence and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]).
Regard must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on an offender must not exceed one-third of the non-parole period imposed, unless the Court decides that there are special circumstances which warrant a departure from that ratio.
If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve for the offence he has committed (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628 - 629).
It is finally also necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious violence offences”, which under s 5A includes the offence of murder. The effect of this Act is that the State can apply to the Supreme Court for an order that the offender continue to receive supervision or remain in detention. If the Court is then satisfied, to a high degree of probability, that the offender would be a “high risk offender”, that is an offender who poses an unacceptable risk of committing a serious violence offence if not kept under supervision, it may make an order under s 5F for an offender’s extended supervision. An order for continuing detention may be made under s 5G if the Court is then satisfied that adequate supervision will not be provided by an extended supervision order.

The issues

In this case, for reasons which I will now explain, I am satisfied that justice demands that a significant custodial sentence be imposed on Mr Martin.
The Crown’s case at trial was that Mr Martin had murdered Mr Hindle, not having acted in self defence, or having been provoked and having intended to kill him, or at least to inflict grievous bodily harm. The Crown argued that the number of blows Mr Martin had inflicted to Mr Hindle’s head, the nature of the weapon he used and Mr Martin’s conduct after he inflicted those blows all showed that his intention was to kill Mr Hindle. Further, that his behaviour afterwards, was also consistent with him knowing that he had caused Mr Hindle’s death.
Mr Martin’s case was that while he did not deny killing Mr Hindle, he could not be found guilty of Mr Hindle’s murder because he had acted in self defence and under provocation, not intending to kill Mr Hindle, after Mr Hindle had threatened him with a shotgun.
The issues then lying between the parties included whether Mr Martin had acted under provocation and in excessive self defence, when he killed Mr Hindle. The number of times he struck Mr Hindle, particularly the number of blows he inflicted to Mr Hindle’s head with the concrete block, which weighs some 7.1kg; Mr Hindle's position when he was struck with that block; and whether there was an interval between those blows being struck, were also in issue, as was whether Mr Hindle had threatened Mr Martin with a shotgun and the reason why Mr Martin took a shotgun with him, when he left the property.
At the sentence hearing, there was no longer any issue that Mr Martin had caused Mr Hindle's death by hitting him once to each side of the head with the concrete block. There remained issues between the parties, however, as to:

whether Mr Hindle had threatened Mr Martin with the shotgun;

whether Mr Martin had struck Mr Hindle, intending to kill him, or to inflict only grievous bodily harm;

whether Mr Martin initially believed that he had to defend himself, even though it was common ground that, on the jury’s verdict, before he struck the final blow with the concrete block, Mr Martin did not believe that he had to act in self defence; and

whether Mr Martin had lost his self control as the result of Mr Hindle’s provocation, even though it was common ground that on the jury’s verdict, the jury must have concluded that Mr Martin had regained his self control, before he inflicted the final blow.

For reasons which I will explain, on all of the evidence, I am satisfied that the issues lying between the parties cannot be resolved in a way that is favourable to the case advanced for Mr Martin.

The resolution of these issues

The issues lying between the parties have to be approached in a context where the jury convicted Mr Martin, accepting the Crown’s case, that his various accounts of what had happened between he and Mr Hindle could not be accepted as true. All of Mr Martin’s accounts were untested.
The only person who could have given evidence as to what happened to Mr Hindle was Mr Martin, but he gave no evidence at trial, as was his right. Various evidence revealed the accounts which Mr Martin had earlier given, after he went home and sought assistance for Mr Hindle.
Mr Martin relied on those accounts to resist the Crown’s case as to his intention, on self defence and provocation and also to account for two other things. Firstly, for why he had not called for assistance from the property on the landline he had used to call his son on the previous evening. Secondly, to explain how Mr Hindle’s blood came to be on his clothing.
On sentencing, an affidavit sworn by Mr Martin was also tendered. He was not required for cross-examination. That affidavit did not deal with how Mr Hindle’s death was caused, but with their relationship, Mr Martin’s regret at his death and his inability to explain the depth of his feelings to Mr Hindle’s family. It also dealt with Mr Martin’s own background, including when he was sexually assaulted on a number of occasions over the course of some 14 to 18 months, while he was a young child. There was also another account of what Mr Martin had done, recorded in a psychologist’s report, which was also tendered in Mr Martin's case.
On sentencing, Mr Martin also relied on his accounts. They thus have to be assessed carefully, in light of all of the other evidence which has been received, when the issues lying between the parties are resolved.
The evidence established that Mr Martin killed Mr Hindle at the property where Mr Hindle lived and raised dogs and hunted pigs. The uncontested evidence of Mr Hindle’s brother was that the shotgun which Mr Martin took away from the property was the gun which Mr Hindle kept there to shoot snakes and that he hunted using knives. Mr Martin told police that Mr Hindle also kept other guns at his property, but none were found on later police search.
When he left the property, Mr Martin took with him a shotgun, knife and ammunition. He later said that Mr Hindle had threatened to kill him, while armed with that shotgun and the knife. The Crown’s case was that this would not be accepted as true.
The evidence established that Mr Martin had the opportunity, knowledge, and means to have taken those items from the shed where Mr Hindle kept them. Mr Hindle was an electrician. The shed was powered by generators. It was used as a kitchen and living area. Mr Hindle also kept his equipment there and also parked his vehicle there. He slept in a caravan nearby. There were other vans where visitors, like Mr Martin, slept. The vans had no power or lights. A head torch was located at the property, lying on the ground, away from the vans. On examination, the DNA of both Mr Martin and Mr Hindle was found on the headband of the torch.
On sentencing, the relevant evidence as to how Mr Hindle came to die included an account given by Mr Martin after he was convicted, as well as the evidence given at trial by his parents, his son, Senior Constable Fookes, Dr Sansum and another person to whom he spoke before his arrest, Mr Taylor, to all of whom Mr Martin gave an account, on 6 September 2012, about what he and Mr Hindle had done.
In evidence was also a recording of the 000 call which Mr Martin made from his home that day, when he called for assistance for Mr Hindle, some 40 minutes after he left him lying unconscious on the ground at his property. Recordings of an interview with police on his arrest, at his home, later that morning and also of another interview in which he participated later that day, at Queanbeyan Police Station, were also in evidence.
Evidence was also called from police and ambulance officers who described what they found at Mr Hindle’s property, when they attended that day and subsequently. Other witnesses gave evidence about Mr Hindle, the nature of the prior relationship between he and Mr Martin, and what Mr Martin had told them about his sexuality.
Expert evidence was called as to matters such as what examination of Mr Martin and of Mr Hindle’s body and blood had revealed; what blood spatter analysis which had been undertaken at the property and on Mr Hindle’s body had revealed; and what DNA testing of various items located at the property had shown.
The objective evidence established that the accounts which Mr Martin had given were false in important respects. His accounts were also inconsistent, contradictory and implausible in others. The lengthy account which he gave in his police interview, after he learned that Mr Hindle had died, not only suffered from these shortcomings, but also altered over the course of the interview, as Mr Martin was asked to explain problematic aspects of the account he was then giving. The account given after conviction reverted to a version of events from which he had departed in that interview.
In the result, I am satisfied that none of Mr Martin’s accounts provide a basis on which any findings of fact can be made on sentencing, other than when they are supported by other reliable evidence.

Intention to kill

I am satisfied that the evidence established beyond reasonable doubt that Mr Martin intended to kill Mr Hindle.
Senior Constable Fookes spoke to Mr Martin’s mother some 5 minutes after he made the 000 call, from their home. The Senior Constable asked her questions, which she then conveyed to Mr Martin, who answered them. Mr Martin was then asked how many times he had hit Mr Hindle. He then said that he had hit him twice. He had, in fact, hit him more than twice, but even this was not an admission to which Mr Martin adhered.
Mr Martin also told Senior Constable Fookes that he thought that Mr Hindle was dead. That was consistent with what Mr Martin had done, inflicting fatal injuries to Mr Hindle’s head and leaving him to die, lying uncovered, outside on the ground, bleeding heavily on a cold, windy night, for some 40 minutes before he called 000.
In all of his other accounts before trial, Mr Martin said that he had struck Mr Hindle only once with the concrete block, while outside the caravan where he had woken to find Mr Hindle threatening him with a shotgun. While he later said that Mr Hindle had fallen to the ground unconscious and that before he left, he had moved Mr Hindle, who was making snoring noises, to take his pulse, Mr Martin claimed that he had left without calling for assistance for Mr Hindle, taking the shotgun, ammunition and knife which he found lying on the ground near Mr Hindle, because he was afraid that Mr Hindle would attack him again. This cannot be accepted as being true.
Mr Hindle was found lying on his back, in a large pool of blood. He survived his head injuries for some 2 to 4 hours, after they were inflicted. He died before ambulance officers arrived. The concrete block was in evidence. It was obviously a lethal weapon.
The expert evidence established that Mr Martin’s accounts were false. Mr Martin used the concrete block to kill Mr Hindle, by hitting him at least twice, once to each side of his head. It also established that Mr Martin had been moved after the first blow with the concrete block was struck. There was a delay between those two blows. Mr Hindle had also suffered other injuries to his face, the top of his head and his arms, some consistent with Mr Martin having struck him with the concrete block, others consistent with Mr Martin having struck him with a sharp object. Some of these injuries were defensive wounds, which had been bleeding. The injury to the top of his head had bled profusely.
Given how heavy, large and awkwardly shaped the concrete block was, it would have been difficult to wield, as Mr Martin demonstrated to police during the Queanbeyan interview, by picking it up from the ground and turning to hit Mr Hindle in the head, while Mr Hindle was standing behind him, especially if he had been pointing a shot gun at Mr Martin’s head. The evidence established that this was not how Mr Hindle was first struck to the head.
On autopsy, Mr Hindle was found to have suffered three significant injuries to his skull, as well as other injuries to his face and arms. The injuries to the two sides of his head were consistent with two separate blows struck with the concrete block, rather than the result simply of contact with the ground, after a fall.
Mr Hindle was first struck with the concrete block to the right side of his head. The injuries to the right side of his head were complex, with abrasions to his face and ear, as well as bruising to soft tissues and a complex fracturing of the skull beneath, including to the orbital area of the eye. There was also damage to his brain under the fracture.
Contrary to Mr Martin’s accounts, on examination, these first injuries were consistent with Mr Hindle's head already being in a fixed position against another surface, either a wall, such as that of the nearby shed or caravan, or the ground. They were also consistent with the second blow to the left side of his head being struck while the already injured right side of Mr Hindle's head was on the ground, after Mr Hindle was moved, before the second blow was struck. Blood pattern analysis confirmed that Mr Hindle’s body was in a different position, when he was struck the second time, sometime after the first blow, while lying on the ground.
On the left side of his head, Mr Hindle suffered an irregular laceration behind his ear, going through the full thickness of his skull, with associated bruising, as well as abrasion and bruising to the lobe of the ear. Underneath this laceration there was an associated depressed skull fracture, as well as damage to that side of his brain.
The third serious injury towards the top of Mr Hindle’s head was an irregular laceration, with the skin abraded away. It was caused by a separate blunt force impact, consistent with something with a sharp edge striking Mr Hindle’s head, or his head coming into contact with that object, when he fell. That injury was consistent with contact with a metal grate found lying on the ground near Mr Hindle, or a swinging blow with the edge of the concrete block. That injury resulted in the pool of blood in which Mr Hindle was found lying on his back, when police attended.
Mr Hindle also suffered other injuries, including an abrasion on his forehead, consistent with another glancing blow from the concrete block, as well as a laceration to his lip, which resulted in him inhaling blood. He also had defensive wounds on his arms, which were also consistent with use of an object with a sharp edge.
Consistent with those injuries, Mr Hindle’s blood was also found in various places inside the caravan, where Mr Martin said that he had been sleeping. That van was found to have been considerably damaged, consistent with there having been an altercation there, during which Mr Hindle was injured, before Mr Martin struck Mr Hindle with the concrete block outside the van. Mr Hindle also left blood spots at the entrance to the shed, but none were found in his van.
None of Mr Martin’s blood was found in the van or elsewhere. That was consistent with him having suffered only relatively minor injuries to his hands and arms. His account was that those injuries had been inflicted in another altercation between he and Mr Hindle, in the shed, the evening before he killed Mr Hindle. Mr Martin’s clothing was stained with Mr Hindle’s blood, consistent, amongst other things, with him having inflicted Mr Hindle’s various injuries and with having kneeled on the ground, next to Mr Hindle’s body.
All of this evidence established not only that Mr Martin got the better of Mr Hindle during their altercation inside the van, before killing him outside the van, but also that Mr Martin intended to kill Mr Hindle.
The nature of the various blows which Mr Martin struck, particularly those to Mr Hindle’s head and the fatal injuries which inevitably resulted from the two blows to the sides of his head with the concrete block, when considered together with the state which Mr Martin left Mr Hindle in, when he departed from the property, puts that conclusion beyond question.
Mr Hindle was left, bleeding heavily from the head, lying unconscious on the ground outside the caravan, uncovered, on a dark, cold, windy night, while Mr Martin took time to move the concrete block, gather a gun, knife and ammunition, put petrol in his truck and then to drive home for some 40 minutes, before calling for any help for Mr Hindle, rather than calling for an ambulance from the property, as he could have done. Those steps put Mr Martin’s intention to kill Mr Hindle beyond argument.
I am, accordingly, satisfied that the evidence established beyond any doubt not only that Mr Martin murdered Mr Hindle, but also that he intended to kill him.

Excessive self defence and provocation

The jury accepted the Crown’s case that Mr Martin had not acted in self defence, nor had he been provoked by Mr Hindle.
On sentencing, Mr Martin accepted that the jury must have concluded that by the time he had inflicted the final blow to Mr Hindle's head, he no longer had a belief that he had to use the concrete block in self defence. He argued, however, that the verdict, nevertheless, left open the view that he had acted in response to being threatened by Mr Hindle with the shotgun, before he struck the first blow.
Mr Martin also accepted that the jury had not accepted his case on provocation. He argued, however, that his account of the words which Mr Hindle had used when he threatened him with the shotgun, supported a finding, on the balance of probabilities, that this was what had caused him to arm himself with the concrete block.
These conclusions, if reached, are relevant to an assessment of the objective seriousness of Mr Martin’s offending.
Mr Martin submitted that it was relevant, in this regard, to consider that the jury had reached its conclusion, only after a further direction on provocation and a Black direction, to the effect that it had to persist in its deliberations (see Black v The Queen [1993] HCA 71; (1993) 179 CLR 44). This, it was argued, left open the conclusion on sentencing, that while initially provoked, Mr Martin had regained his self-control before inflicting the second blow, after which he ceased striking Mr Hindle, left the concrete block, felt Mr Hindle’s pulse and left the property to summon help.
For its part the Crown accepted that the onus lay on it to establish beyond reasonable doubt that Mr Martin had not acted in either self defence, or after provocation, at any point. It submitted that it had met that onus on the evidence.
Resolution of these issues depends in large part on the dispute about what the evidence in relation to the shotgun establishes, to which I will now turn.

The shotgun

I am satisfied that the evidence does not permit a finding that Mr Hindle threatened Mr Martin with the shotgun, before Mr Martin killed him, even on the balance of probabilities. Such a finding depends on the evidence of the accounts Mr Martin gave afterwards. As I have explained, they do not provide a reliable basis for any factual findings. Other evidence is inconsistent with such a finding.
It was not in issue that Mr Hindle and Mr Martin were friends. Mr Martin was a frequent visitor to the property and told police about the property and the guns and knives which Mr Hindle kept there. His later accounts that they had been drinking together the evening before, were supported by evidence called from various witnesses, by analysis of Mr Hindle’s blood and by the alcohol smelt on Mr Martin, on his arrest.
Mr Hindle had consumed the equivalent of some 23 standard drinks. Mr Martin’s blood alcohol level was not tested, but he had sufficient sobriety not only to be able to injure Mr Hindle as he did, but also to drive in the dark, for some 40 minutes, along rough bush roads to reach his home, where he made the 000 call and gave what proved to be a number of deliberately false accounts, as to all that he had done to Mr Hindle.
In assessing the evidence as to what Mr Martin did and said, account must necessarily be taken of the effects of what Mr Martin had done, the alcohol he had consumed and his lack of sleep. Nevertheless, it cannot be overlooked that his accounts were deliberately untrue and that they altered, consistent with a realisation of the problems with what he was saying and ongoing attempts to minimise his responsibility for what he had done to Mr Hindle, namely, to murder him.
Mr Martin said that he and Mr Hindle had had an argument in the shed the evening before, when he had raised his sexuality, with the result that Mr Hindle attacked him with a fork. Mr Martin may have discussed his sexuality with Mr Hindle that night. There was evidence that he had discussed this with others.
Mr Martin said that there was an altercation in the shed the evening before he killed Mr Hindle. There may have been such an altercation. That is supported by the drops of Mr Hindle’s blood found in the shed and the wounds found on the back of Mr Martin’s hands and forearms on arrest. There were, however, no injuries to Mr Martin’s palms. Dr Sansum examined Mr Martin and considered his abrasions to have been consistent with him having been struck by a fork and raising his arms above his head to defend himself, as he had demonstrated to her, but she said that those slight injuries could have had other causes.
None of Mr Martin’s blood was found in the shed or the van where he said he went to sleep. There was, however, undoubtedly an altercation in the van, during which Mr Hindle was injured. It was there that Mr Martin said that Mr Hindle first threatened him with the shotgun.
Mr Martin repeatedly described waking to find Mr Hindle in the caravan, with a gun pointed at him, that Mr Hindle had threatened to kill him, that he pushed Mr Hindle away, got out of the van, and that Mr Hindle followed him outside, threatening him again with the gun. It was then that he struck Mr Hindle with the concrete block which he found lying on the ground, in order to defend himself from Mr Hindle, who he thought would kill him.
The details which Mr Martin gave of these events varied significantly in his various accounts, but none of them explained how the van came to be damaged as it was; how Mr Hindle’s blood came to be deposited there in various places, including on the mattress where Mr Martin said he was woken from his sleep; or how he could have wounded Mr Hindle as he did, while Mr Hindle was armed with a shotgun and a knife.
The evidence as to all of these matters was inconsistent with Mr Hindle having been armed with a shotgun and a knife, as Mr Martin variously claimed. Mr Martin’s accounts as to these matters were implausible. None of them can be accepted as true, given other objective evidence.
It is also important to put Mr Martin’s various accounts into context.
The first account which Mr Martin gave was to his father, who he also told that he thought he might have killed Mr Hindle. When asked why he had brought the loaded shotgun home with him, Mr Martin said that Mr Hindle had come at him with the gun and that he had protected himself and was frightened that Mr Hindle might wake up and grab it, as he was driving out the driveway, so he picked the gun up and put it in the cab of his ute, with the shells he had also brought with him, filled up the truck and came home.
In that and other accounts which Mr Martin later gave, consistently with the nature of the concrete block which he had used and the injuries which he had caused, Mr Martin said that Mr Hindle fell unconscious to the ground, when he struck him. He gave various descriptions of the snoring noises he heard Mr Hindle making. In fact, Mr Martin had struck him more than once, as I have explained, injuring him fatally. In the face of that evidence, Mr Martin’s account that he took the gun and knife with him, fearing that Mr Hindle would attack him again before he left, cannot be accepted as true. That it was false, was confirmed by what else Mr Martin did, before he left.
In the 000 call which Mr Martin made after he arrived home, he said that Mr Hindle had found out that night that he was gay; that Mr Hindle had overreacted; that Mr Hindle had wanted to shoot him; and that he had taken the gun away from Mr Hindle and hit him in the head with a brick. He also said that he had woken with the gun pointed to his head; that he had fallen outside; that Mr Hindle was unconscious, snoring when he left him; that there was a lot of blood; and that he did not want him to die. It was in this account that Mr Martin said that he had to drive 20 km, to be able to make the 000 call.
This was also untrue. Mr Martin could have made that call from the landline at the property. Instead, before leaving, he took his time to do the various other things I have described.
After he returned home Mr Martin also spoke to his mother, his son and Mr Taylor, before he was arrested.
Mrs Martin could not remember the exact timeframe of everything that Mr Martin had told her, but remembered that he had said that he woke with a gun to his head, there was a tussle, he pushed Mr Hindle outside and picked up a brick and hit him with it.
Mr Martin also told Mr Taylor that he thought that he had killed Mr Hindle and that he had woken up with a gun pointed at him, that a fight had started and that he had hit Mr Hindle with a brick. Mr Martin told his son that he had woken with the gun pointed at him, that he had grabbed it and pushed Mr Hindle off, that Mr Hindle had tried to stab him with a knife and that he had pushed him out of the caravan; that Mr Hindle had grabbed the gun and tried to shoot him and he had hit him with a brick and knocked him out, and grabbed the gun and knife and left.
These accounts were inconsistent, incomplete and untrue. Mr Martin’s later accounts were different.
On arrest, Mr Martin told police that it was Mr Hindle who had “hit [him] up” about his sexuality and had then attacked with him a fork, during an argument and that Mr Hindle had pointed a sawn off shotgun to his head, when he woke up in the caravan. He then said that he had pushed Mr Hindle out of the way and jumped outside, where he picked up a brick. When threatened further, he said “if you’re going to fuckin’ shoot me, I’ll defend myself”. He said that when Mr Hindle pulled the gun up, “I just went, bang and dropped him.” He also said that he freaked out when he saw blood on Mr Hindle’s face and went home.
Mr Martin also said that he up picked the gun and some loose cartridges from the ground and took them home. He said that he had hit Mr Hindle only once and that he was not sure where he had hit him, because it was pitch black, but his face was bloody and a tooth was missing.
On further questioning, Mr Martin said that everything went “burrer” when he hit Mr Hindle. He was then asked about the fork. Mr Martin then said that Mr Hindle had a fork in his hand and that he had a knife and a shotgun, and that the injuries to the back of his hands and knuckles were from where Mr Hindle had attacked him. He also said that he was “just putting my hands up” because “I was in bed, asleep” and Mr Hindle had put the barrel to his head and said “You’re fuckin’ dead” He then said that he just rolled to the side, he remembered grabbing something from the side of the bed and:

“I got out. I fuckin’ ... knocked him over, I got out the caravan door, It’s about that high to the ground. I hit the fuckin deck. Next thing I know, he’s like that, and I just, fuckin’, if you’re goin’ to fuck, and he just You’re fucked. And I just went bang. And I’ve left.”

Mr Martin also then said that after he took the gun off Mr Hindle, he put it on his bonnet and went back to make sure he was OK and found him on the ground snoring. He told police that the gun was stolen and that there were other “hot weapons” buried on the property, including an AK-47. The search later conducted at the property did not locate such weapons.
This was a longer, but quite different account to those which Mr Martin had given earlier. It was also untrue, but different again from that which he gave police later in the day.
By the time he was interviewed at the Queanbeyan Police Station, Mr Martin had time to consider that he had killed Mr Hindle.
Then Mr Martin said that he and Mr Hindle had been drinking and smoking marijuana together the previous evening, when he had raised his sexuality and he had told Mr Hindle that he thought he might be bisexual, knowing that Mr Hindle was not into gays, from earlier conversations which they had had together. Mr Martin then said that Mr Hindle had called him a “fuckin’ queer cunt” and had attacked him with a kitchen fork, leaving scratch marks on his hands, when he lunged at him and he blocked Mr Hindle’s blows.
Mr Martin also said that the fork had been left on the table in the lounge, but that he had later grabbed it, when he took the knife and gun and locked them in his car. On that account, before Mr Martin left the property, he must have gone to the shed, where Mr Hindle kept the shotgun and ammunition.
Mr Martin then described going to sleep in the caravan and waking in the dark, so black that he couldn’t really see anything, but he could feel a piece of metal on his forehead. He asked Mr Hindle what he was doing. He replied “shut the fuck up faggot” and Mr Martin responded, by flying off the end of the bed, shunting Mr Hindle straight back into the end of the caravan, where he hit the wall. Mr Martin said that he then went out the caravan door, dropping to the ground. Outside, he said it was also pitch black.
Given the layout of the caravan, the length of the shotgun and the bed, where Mr Martin described Mr Hindle standing at the end and he lying down asleep, in the darkness he described, there were obvious problems with this version of what had happened. That Mr Hindle could have reached Mr Martin’s head with the shotgun and that Mr Martin could have reached Mr Hindle, to push Mr Hindle away, given their respective positions, in the dark he described, was not plausible.
Mr Martin then said that as he stood up outside, Mr Hindle was there, pointing the gun to the back of his head. He then cocked the gun and went to squeeze it. He then looked down, saw the concrete block, picked it up and hit Mr Hindle, who fell to the ground. He then grabbed the gun and the knife, went to his truck and locked them inside. He returned to check Mr Hindle, saw blood and that he had a tooth missing. Mr Martin said that he then thought that he had just knocked him out and left him and went home.
This account was also proven to be false. The 000 call was made at 4:43 am. Police responded, arriving at the property before dawn at 5:40 am. It was a very dark, moonless, windy night. So dark, that police had to use torches, when searching for Mr Hindle. There was no light inside or outside the van. That evidence established that it was so dark that Mr Martin could not have seen the things he described, either inside the van or outside, without a light source. He was questioned further about this during the Queanbeyan interview and then his story changed again, as he came to realise the obvious problems with the account which he was giving.
When questioned further, Mr Martin explained that he could see the knife which he picked up from the ground in the dark outside, because its handle glowed orange and the shotgun cartridges, which he also picked up from the ground, glowed red. This was also false. The knife was later tested. The handle did not glow.
Mr Martin then described the snoring sounds which Mr Hindle was making when he returned to feel his pulse. He also said that he might have had blood on his face, but he said it was pretty dark and he froze and drove home.
Mr Martin also elaborated on the discussion which had led to Mr Hindle attacking him with a fork. He then said that they had discussed his history of having been sexually assaulted as a child, over some 40 minutes, in the shed. Later he said, however, that he could not remember whether he had been attacked with the fork in the shed or in the caravan, but that the fork was usually kept in the shed and he remembered pushing Mr Hindle away and then having a few more beers. He also said that he remembered grabbing the fork and putting it in the truck, but that it wasn’t with the gun and knife which he put there and so, he must have dropped it. Later, he said that before he went to bed, Mr Hindle was joking with him and happy.
On further questioning, Mr Martin said that there was no electricity in the caravan, but that, contrary to his earlier accounts, it was not dark when he woke up, because Mr Hindle was wearing a head torch. He then said that the torch came off Mr Hindle’s head, inside the van, when he landed on the caravan floor. Mr Martin, again, described how he woke, what he felt and what was said. He repeated that he got up off the bed and pushed Mr Hindle out of the way, then he said by pushing him straight into the chest and getting out of the door. He also said that Mr Hindle was still holding the gun when he fell back and that Mr Hindle came back up and so he dived out of the door.
Given the layout of this caravan, where the bed was placed and his account of where he and Mr Hindle each were, this account was also plainly untrue. This further departure from his earlier accounts, that Mr Hindle was wearing a head torch which fell off in the van, explained how Mr Martin could have seen what he described inside the van, but it could not explain what he claimed to have seen and done outside in the dark.
Mr Martin was then asked to describe the gun and to explain the layout of the caravan and where he and Mr Hindle each were. Mr Martin again said that Mr Hindle was standing at the foot of the bed and he was lying down, but his account then changed again. Then he said he woke to see Mr Hindle coming forward towards him and then, because he knew martial arts, he used his feet and got Mr Hindle straight back. Mr Hindle then went into the back wall and his head torch hit the ground.
When asked whether it was his hands, or his feet that he had used to push Mr Hindle away, Mr Martin said that he was not sure, but he was pretty sure that the head torch came off then, because it went dark. He also said that Mr Hindle had no torch outside. There was no head torch found in the van, but one was later found outside, some distance away. On examination, it had both Mr Hindle and Mr Martin’s DNA on the headband.
This version did not have the shotgun placed against Mr Martin’s head and had a light source inside the van, but it was also untrue. Later examination of the van revealed the considerable damage done to the van, while Mr Hindle was bleeding sufficiently from the wounds Mr Martin had inflicted with an object, to have left his blood in various places. This was objective evidence which none of Mr Martin’s various accounts explain and which could not have occurred while Mr Hindle kept hold of a loaded gun, let alone while also armed with the knife.
Mr Martin then said that he did not get the gun from Mr Hindle, until they were outside, after he hit him with the concrete block. He then described how he swung the concrete block at Mr Hindle, who was standing behind him pointing the gun at his head, and hitting him in the face.
A glancing blow to the face with the concrete block, which caused Mr Hindle to fall to the ground, would account both for the abrasion injury later found on Mr Hindle’s face, and how the injuries which he suffered to the two sides of his head could have been inflicted. They were caused by two blows being struck with the concrete block, one to each side of Mr Hindle’s head, while he was lying on the ground, his body having been moved between those two blows being struck.
When asked to explain further, Mr Martin then said that he was not sure where the gun was pointed, when Mr Hindle came out of the caravan. He then changed his account further. Mr Martin said that he was getting off the ground, when he looked up and saw Mr Hindle walk forward and that he came across as if he was going to kill him, with the gun pointing at him and so he had reacted. Mr Martin again said that he thought he had hit Mr Hindle in the facial region and that he fell straight to the ground.
On all of these inconsistent accounts, Mr Martin was outside the van, before he inflicted any injury on Mr Hindle. This was also untrue.
On these various accounts, Mr Martin claimed that outside, in the dark, he either had his back to Mr Hindle and felt the gun at his head, which caused him to turn and strike him with the concrete block which he saw lying nearby on the ground, or, he looked up at Mr Hindle and saw him walking towards him, with the gun pointed at him, which led him to conclude that Mr Hindle was going to kill him and so he picked up the concrete block and struck him.
Mr Martin was then asked where the gun landed. He said on Mr Hindle’s left hand side. He also said that he picked up the knife, gun and two cartridges which he saw lying nearby; that Mr Hindle had not used the knife to threaten him, but that it was also lying on the ground. Mr Hindle then said that he did not know whether it had fallen out of the side of Mr Hindle’s pants, or his pocket.
Given the size and nature of this knife, that it could have been so carried was also implausible. That Mr Martin could have seen and done all that he described in the dark, without any light source, was not possible.
Mr Martin then said that Mr Hindle was alive and had a pulse when he left and that he did not want to hang around, because he knew he had another shotgun and an AK-47 on the property. It was only on the way home, that he began to think that Mr Hindle might have died and that was what he told his father at home.
Mr Martin was then asked again about the torch. He insisted that it was dark outside and that Mr Hindle had not put his torch back on, before he followed him outside. He also said that he had left the concrete block lying on the ground near Mr Hindle, where he put it down, when he grabbed the gun and other stuff. That was also untrue. He moved that concrete block some distance away from where Mr Hindle was lying on the ground, before he left.
When asked how it was that he could see what he described, in the dark, Mr Martin said that he could not find the torch, but he could see Mr Hindle’s open mouth, because it was starting to get lighter, when he returned to feel his pulse. That was also untrue. It was still completely dark when police later arrived at the property.
When asked how he could see the look he had described seeing on Mr Hindle’s face, Mr Martin said that he knew his body language and his face and he knew that Mr Hindle was out to hurt him. Despite this, and despite having earlier said he saw blood on Mr Hindle’s face and a missing tooth, he later said that he did not know whether what he could feel on Mr Hindle when he felt his pulse was blood or dew.
The only evidence which could account for what Mr Martin described seeing, was the head torch later found by police. Him wearing the head torch that night, would account for how he could have seen the blood and missing tooth he described having seen and for how he was able to do the various things he did, before he left the property.
Mr Martin told police that he had only remained 5 minutes at the property, before he left. That also proved to be untrue.
Before he left Mr Martin took a number of steps, which were consistent with knowledge that he had fatally injured Mr Hindle. Instead of calling 000, he not only moved the concrete block, he collected the gun, ammunition and knife and filled his truck with petrol. He also checked on Mr Hindle, who was as he described, unconscious, bleeding on the ground.
After conviction, Mr Martin gave the psychologist Ms Robilliard another account of killing Mr Hindle. He told her that they had been drinking during the evening, that he had confided in Mr Hindle that he might be bisexual, that Mr Hindle had called him a “poofter”, that later in the evening, they had a fight in the shed, when Mr Hindle scratched his arm with a dinner knife and fork. They then drank further. Later, he woke in the caravan to find Mr Hindle standing over him with a shotgun held to his head. He said that he reacted “maybe a bit excessively” and they fought. When he left Mr Hindle he was snoring. He thought that he had knocked him out.
In this account, Mr Martin acknowledged the altercation in the van and having hit Mr Hindle excessively, but reverted to a version of events from which he had departed, while he was at the Queanbeyan Police Station, with Mr Hindle holding the gun to his head when he woke.
The only basis on which a conclusion that Mr Hindle threatened Mr Martin with a shotgun when he woke in the caravan could rest, was the evidence of the accounts which Mr Martin gave after he killed Mr Hindle. As I have explained, those untested accounts were not a reliable basis on which such a conclusion could rest. To the contrary, they were not only inconsistent and contradictory, but deliberately false. While Mr Martin stuck to his account that Mr Hindle had threatened him with the shotgun in those accounts, that he could have seen and done what he variously described, was inconsistent with other reliable evidence, as I have explained.
In the result, it cannot be concluded that Mr Hindle threatened Mr Martin with a shotgun, before he killed him, even on the balance of probabilities.

Mr Martin did not act in excessive self defence and provocation

On sentencing all of the evidence received has to be assessed in the way I discussed at the outset.
I am satisfied on that evidence, that it cannot be found that before he struck Mr Hindle for the first time with the concrete block, Mr Martin was provoked by Mr Hindle, causing him to act in self defence, when threatened with the loaded shotgun which Mr Hindle had pointed at his head, while making threats such as “You’re fuckin’ dead, you faggot”, as he later variously reported, either inside the caravan where he was sleeping, or outside it.
Objective, reliable evidence does not reasonably leave those findings open. They could only be arrived at, if Mr Martin’s untested accounts were accepted. As I have explained, those inconsistent, incomplete and untruthful accounts are not a reliable basis for any findings of fact, unless supported by other evidence. The other evidence does not support those findings.
Nor do Mr Martin’s accounts give rise to any reasonable doubt of which he is entitled to have the benefit, either in relation to self defence or provocation. Rather, I am satisfied that the other evidence establishes beyond reasonable doubt that Mr Martin was neither provoked, nor acted in self defence, when he first struck Mr Hindle with the concrete block.
That evidence includes what examination of all that was found at the property revealed; the results of the examination of Mr Hindle’s body; where he was found, lying fatally injured, in a pool of blood, on the ground outside the van; the damage and considerable spattered blood found in various places inside the van and on Mr Hindle; that none of that blood belonged to Mr Martin; that there was no evidence that the gun was fired during the struggle in the van; that Mr Martin had Mr Hindle’s blood on various parts of his clothing, but that neither the gun, the knife nor ammunition that Mr Martin claimed he picked up from the ground where Mr Hindle dropped them outside the van, had any blood on them; the darkness that night; and the absence of any light source, either inside or outside the van, which would have permitted Mr Martin to see and to do all that he did, without use of a device such as the head torch.
All that Mr Martin did and failed to do, before he left the property with which he was so familiar, was also inconsistent with him having been provoked by Mr Hindle, or having acted in self defence, when he struck him the first time with the concrete block.
Instead of helping his seriously injured friend after he first struck Mr Hindle with that concrete block, or calling for assistance on 000, after some lapse of time Mr Martin struck Mr Hindle a second time with the concrete block, while he was lying defenceless on the ground. Having injured him fatally, Mr Martin then also took his time before leaving the property, moving the concrete block, putting petrol in his truck, gathering a loaded shotgun, knife and ammunition and checking on Mr Hindle’s condition, before he drove away, taking some 40 minutes before he called for help.
None of that conduct was consistent with Mr Martin having initially been provoked and acted in self defence, before he struck the final blow with the concrete block.

The nature and seriousness of the offence

The nature and seriousness of this offence must thus be assessed on the basis that Mr Martin did not act in self defence and was not provoked by Mr Hindle threatening him with the loaded shotgun he took away with him from the property. It must also be assessed without reference to matters personal to Mr Martin.
It was common ground that Mr Hindle’s killing was not the result of any premeditation, but occurred during an altercation, while they were both affected by alcohol, Mr Hindle considerably so. In the past Mr Martin and Mr Hindle had been involved in other physical altercations when they were affected by alcohol, in which they had been injured.
That is not a mitigating factor, but explains the circumstances in which, on this occasion, Mr Martin lost his control during another such altercation, the result that he killed Mr Hindle in the brutal fashion I have already described. On the evidence, that may have partially been the result of Mr Martin having drunk spirits, which in the past had had an adverse effect on him, but that does not excuse or explain what he did. His intoxication does not make this offence objectively less serious than it undoubtedly was.
In assessing the seriousness of his offence, account must also be taken of the evidence that having realised what he had done, instead of taking Mr Hindle with him, or even calling for the help which Mr Hindle then so obviously and desperately needed, Mr Martin left him lying seriously injured, outside on the ground, on an isolated property, uncovered and alone in the dark, on a very cold and windy night, to die of the fatal wounds he had inflicted. While Mr Martin was able to drive home, he was well aware of the difficult road which had to be traversed, before assistance could reach Mr Hindle and still he called for no help, before he left.
This heartless conduct must be accepted as being an aggravating feature of this offence, in accordance with the approach discussed in Dulihanty v R [2013] NSWCCA 275 at [68].
In the result, there can be no question that objectively, this was a serious offence, in my view falling somewhat above the middle of the range of seriousness of such offences.

Moral culpability

Mr Martin’s moral culpability for his offence must also be considered.
Mr Martin led evidence on sentencing which shed light on his background, to which I will return. There was no issue between the parties that the evidence of his background was relevant to this sentencing exercise, but the impact that it would have, was not agreed.
In particular, despite the provisions of s 21A(5AA) of the Crimes (Sentencing Procedure) Act, which provides that self-induced intoxication at the time of an offence is not to be taken into account as a mitigating factor, Mr Martin submitted that his intoxication was, nevertheless, relevant to a determination of his moral culpability, consistent with the approach in Waters v The Queen [2007] NSWCCA 219 at [38]. That was because, it was argued, his intoxication revealed that his offence was impulsive and unplanned, committed at a time when his judgment was impaired.
In my view, the evidence must lead to the conclusion that Mr Martin’s moral culpability for his offending was not as high as it would have been, had he not experienced the violent sexual assaults which he suffered at a young age, which have had ongoing, adverse impacts upon him, throughout his life, including significant drug and alcohol abuse, from a young age (see Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 at [43]). His judgment was unquestionably impaired the night that he killed Mr Hindle.
Even so, on all of the evidence I have discussed, it must be concluded that Mr Martin’s moral culpability for this awful offence was significant, given all that he did, including how he left Mr Hindle alone to die, instead of calling for help from the property, as he could so easily have done.

Aggravating factors

The various aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act relevant to this sentencing exercise which the parties identified were:

“ ...

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences).

...

(eb) the offence was committed in the home of the victim or any other person,

...

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),”

I have already discussed Mr Martin’s use of the concrete block and need say no more about its impact on this sentence.
Mr Martin has a prior criminal record in New Zealand and Australia, which it was accepted disentitles him to any leniency in this sentencing exercise. His record includes only one offence of violence, common assault, committed in New Zealand, for which a non-custodial sentence was imposed. There were also juvenile car theft offences, failures to report, breach of supervision and drug cultivation and possession offences, burglary, theft, and wilful damage. Mr Martin was ordered to undertake a residential community program for his drug taking in New Zealand, which coincided with a gap in his record. In New South Wales his record was confined to driving offences.
This is not a record which requires any further consideration in this sentencing exercise.
That Mr Hindle was killed at his home, an isolated rural property, where he ought to have been safe, must be taken into account as an aggravating factor. Mr Hindle was plainly vulnerable to Mr Martin’s attack, given his intoxication, of which Mr Martin was well aware. That is a part of the factual matrix in which the seriousness of this offence must be assessed, as I have discussed, but of itself does not place Mr Hindle into a particular class of victim, who need to be especially protected, because they are vulnerable to criminal offences (see Regina v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 at [24] - [26]).

Mitigating factors

The mitigating factors specified in s 21A(3) of the Crimes (Sentencing Procedure) Act which Mr Martin submitted would be taken into account in his favour, were:

"(b) the offence was not part of a planned or organised criminal activity,

...

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),”

There was no issue that this was not a planned or premeditated killing. I have already dealt with provocation, which I consider on the evidence cannot be found as a matter of fact.
The unchallenged evidence led on sentencing does, however, establish Mr Martin’s remorse for what he has done. Mr Martin has always accepted responsibility for Mr Hindle's death. He offered to plead guilty to manslaughter, but as was his right, did not admit to the murder of which he has been convicted. While he has been unable to write to Mr Hindle’s family, he has given evidence on sentencing about his feelings and emotions, in terms which I accept establish that his remorse is genuine, consistently with evidence received as to his character. Ms Robilliard also referred to Mr Martin’s repeated expressions of deep remorse at Mr Hindle’s death.
As to Mr Martin’s prospects of rehabilitation, on the evidence, given his record, the nature and seriousness of his offence and his serious past problems with drugs and alcohol, much depends on his successful pursuit of treatment for those problems. There is evidence of an acceptance, on his part, of a need to deal with these matters and of the existence of real reasons for pursuing them. On all of the evidence, I consider that Mr Martin does have prospects of future rehabilitation, which may be taken into account.

Deterrence

It is unquestionable in the circumstances which I have discussed, that both general and specific deterrence have a significant role to play in the sentence imposed on Mr Martin.
Offences involving violence such as this, committed while a person is affected by alcohol, must result in a sentence which deters both Mr Martin and others, from engaging in such violence.

Mr Martin’s personal circumstances

Mr Martin’s personal circumstances must also be taken into account.
Affidavit evidence was received on sentencing from Mr Martin, his mother, father and sister. Letters from his son, niece, aunt and cousin were also tendered. They all attested to their experience of him and the love and support they continue to offer him. There were also supportive testimonials from friends of Mr Martin and a report of February 2015 from Ms Robilliard, who had examined Mr Martin.
Mr Martin was not required for cross-examination and aspects of his evidence as to his background and the history he gave Ms Robilliard were supported by his parents’ and sister’s affidavit evidence. They were also not required for cross-examination. There was no issue between the parties as to the nature of his history, including that he was a victim of childhood sexual assault.
All of this evidence established that Mr Martin comes from a stable, supportive family background, with parents who he considered to be exemplary role models, who had always been there for him.
Mr Martin was diagnosed to have hyperactivity and learning difficulties as a child, which resulted in disruptive behaviour patterns which were dealt with in various ways, including by involvement in competitive swimming, at which he excelled. Mr Martin revealed to his family having been sexually molested from age 7, only when he was 21. His mother confirmed that changes in his behaviour coincided with this experience. As a young teenager, greater problems developed with his behaviour and he became involved with drug taking, delinquent peers and juvenile offending.
The history Mr Martin gave Ms Robilliard described how he was first sexually assaulted by a friend’s stepfather and one of his adult friends, when he was aged 7, while staying overnight there. He described resulting changes in his attitude and behaviour, feeling detached from his parents, sleeping with a knife under his bed, being so afraid of the dark that he would not leave his room at night, even to urinate and blaming his parents for allowing him to spend the weekend with his friend. Mr Martin described his difficulties at school, with drugs, stealing and fighting. By age 9, he was sniffing solvents “to get out of it”. By age 11, he was sniffing glue. By 13, he began using cannabis and then moved on to barbiturates and opium, which was grown in New Zealand. He also began committing drug related offences. Mr Martin also began growing his own cannabis and by age 15 was injecting opium intravenously, during poppy season.
Mr Martin left school to commence an apprenticeship with his father, which he left after only 2 months, to pursue drug taking, while he went on unemployment benefits. At age 15 or 16 he was sent to boys’ homes and eventually to drug rehabilitation. Mr Martin made good progress while at Odyssey House, but he returned to cannabis and opium use only 2 weeks after release.
In his late teens, Mr Martin formed a long term relationship, but continued heavy drug use. After he met his wife he was introduced to intravenous heroin use, as well as LSD, although he was able then to hold down jobs, at times.
Mr Martin has a stepson and two other children. His marriage broke up in 2009 over his wife’s involvement with his best mate, at a time when he discovered that she was using ice. There was an altercation which resulted in his detention and it was on release, that he decided to move to Australia. He then moved to Braidwood to live with his parents, where he obtained employment. He continued using cannabis, but that was accommodated by his employer.
Mr Martin’s youngest son went into care and he applied for and obtained custody and brought him to Australia, where they lived together in a cottage adjacent to his parents’ home. In 2013, his wife died of a heart attack, resulting from her drug taking.
Mr Martin told Ms Robilliard that he was in sound physical health, although he had lost weight as the result of his emotional distress. In custody Mr Martin reported that he was trying to abstain from drug use, which he found challenging. He had in the past suffered drug comas due to glue sniffing and blackouts, from chronic drinking and drug use. He has no history of mental illness, but had been treated for mood disorder when aged 16.
Mr Martin also gave Ms Robilliard the brief account of how he had killed Mr Hindle, which I discussed earlier. In Ms Robilliard’s opinion, it is not uncommon for young males who have been sexually molested during their formative years, to experience confusion about their sexuality and that given his history, Mr Martin was likely to have been hypersensitive to any comments about his sexual identity.
Ms Robilliard considered Mr Martin’s description of feeling in danger of serious injury when woken from sleep by Mr Hindle, who was armed, to have resulted in a reaction that was excessive, at a time when his intoxication compromised his behavioural self-control. She considered that the situation he described left little time to exercise judicial or rational thought, or to generate alternative courses of action. That opinion has to be considered in light of the conclusions I have reached on the evidence on which Mr Martin was convicted.
The results of tests administered by Ms Robilliard were consistent with Mr Martin’s indicated negative self-worth and depressed mood state. He had a statistically significant score on symptoms consistent with post-traumatic stress disorder, to which his history of childhood sexual abuse was relevant. There was also evidence of a psychological dependence on and compulsive use of cannabis, consistent with his history.
Access to counselling, rehabilitation and psychotherapy were recommended by Ms Robilliard.

Victim Impact Statement

A victim impact statement was read in open court by Mr Hindle’s father and the statement given by his sister was also read out. No one present can have failed to have been moved by what was then said.
Under s 28(4) of the Crimes (Sentencing Procedure Act), on the application of the prosecutor and if the Court considers it appropriate to do so, those statements may be considered and taken into account on sentencing Mr Martin, on the basis that the harmful impact of Mr Hindle’s death on the members of his immediate family, is an aspect of the harm done to the community. That application was not opposed by Mr Martin.
It has long been accepted that all human life is precious and that the death of any person is a harm inflicted on the community generally. One life cannot be valued over that of another. Nevertheless, in this case, I consider that these victim impact statements should be taken into account on sentence, shedding light as they do on the particular harm which this murder has done. Accordingly, I have taken them into account in sentencing Mr Martin.
Before passing from those statements, I wish to observe that the evidence established that Mr Hindle suffered a painful, lonely, awful death. His family and friends all have my very deepest sympathy at his loss and what they must continue to bear, as the result of how his death was brought about. It is to be hoped that Mr Martin’s trial and these sentencing proceedings will give them some small measure of comfort, by revealing how our society has dealt with the awful offence which Mr Hindle’s killing involved.

Special circumstances

Mr Martin did not press for a finding of special circumstances warranting a departure from the ordinary statutory ratio established by s 44 of the Crimes (Sentencing Procedure) Act, given the length of the sentence necessarily to be imposed upon him and the result of the application of the statutory ratio to that sentence.
I am satisfied that, in this case, the statutory ratio will provide an appropriate period of supervision for Mr Martin, prior to the expiration of his sentence, if he is released when he becomes eligible for parole and that his circumstances do not warrant any departure from that ratio.

The sentence

The parties agreed that the sentence imposed on Mr Martin must commence on the date of his arrest on 6 September 2012.
In written submissions for Mr Martin, reference was made to sentencing statistics and various cases where sentences of various lengths have been imposed on other offenders. I have considered these submissions, but found them to be of but little assistance in sentencing Mr Martin, who must be sentenced for his offence, having regard to all of the matters revealed by the evidence, which are relevant to the sentence imposed upon him, for his offending.
As discussed in Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520, it is consistency in the application of relevant principles which must be achieved in a sentencing exercise such as this, not some numerical or mathematical equivalence with sentences imposed in other cases, where those principles have had to be applied to the different circumstances there arising to be considered, in respect of other offenders and offences.
Having considered all of the matters I have mentioned I have concluded that Mr Martin must be sentenced to a term of 27 years imprisonment for his offence. The application of the statutory ratio results in a non-parole period of 20 years, 3 months and a balance of term of 6 years, 9 months. This means that the earliest date that Mr Martin will be eligible for release is 5 December 2032. That will depend on Mr Martin convincing the Parole Authority that he should then be released on parole. His sentence will expire on 5 September 2039.

Orders

Tyrone Earl Martin you are convicted of the murder of Jeffery Michael Hindle.
You are sentenced to a term of imprisonment of 27 years, commencing on 6 September 2012 and expiring on 5 September 2039, with a non-parole period of 20 years, 3 months, expiring on 5 December 2032.
I set a balance of term of 6 years, 9 months, which is to expire on 5 September 2039.

Subsequent Judicial Consideration0