Citation: R v Robertson; R v McArthur [2014] NSWSC 1401
Court: Supreme Court of New South Wales
Date: 15 October 2014
Judge: Harrison J
Background
In the early hours of 5 December 2011, two men drove from the Central Coast to industrial premises in Minchinbury, western Sydney, where a 15-year-old worked at an automotive workshop. One man, Robertson, drove and waited around the corner while the other, McArthur, entered the workshop and attacked the teenager. The boy died at the scene from a stab wound to the chest that penetrated his left lung and thoracic aorta.
Both men had been charged with murder. Robertson pleaded guilty to the lesser charge of manslaughter before trial, which the Crown accepted in full discharge of the murder indictment on the first day of proceedings. McArthur pleaded guilty to murder on that same first day of trial.
The sentencing proceedings dealt with the two offenders separately. The parties agreed on the relevant facts for Robertson's sentencing, but no such agreement was reached for McArthur, requiring the court to make its own factual findings on several disputed matters.
Legal Issues
For Robertson (manslaughter):
- Whether the sentence should account for the co-offender's use of a weapon, even though Robertson was unaware McArthur was armed
- Whether Robertson was likely to re-offend
- Whether the offence warranted general deterrence considerations
- Whether Robertson's early guilty plea and remorse attracted leniency
- Whether harsh custodial conditions were a mitigating factor
For McArthur (murder):
- Whether the implement used was a knife (rather than another sharp object)
- Whether McArthur brought the weapon to the scene, indicating premeditation
- Whether McArthur intended to kill the deceased or merely to cause really serious injury
- What utilitarian value, if any, attached to his late guilty plea on the first day of trial
- Whether the statutory ratio of parole to non-parole period should be adjusted to account for McArthur's significant drug dependency and anticipated need for supervision upon release
- Whether special deterrence applied
Decision
Robertson (manslaughter). Harrison J found that Robertson was part of a joint criminal enterprise to assault the deceased for payment, knowing the enterprise exposed the victim to an appreciable risk of really serious injury. Although Robertson did not inflict the fatal wound and had no knowledge that McArthur was carrying a knife, the offence was assessed at the mid-range of objective seriousness. The court noted that the attack involved considerable planning, including scouting the location in advance, and was carried out in exchange for financial reward.
The court accepted that Robertson's early guilty plea carried genuine utilitarian value and that he showed real remorse. The existence of custodial conditions more onerous than ordinary was acknowledged as a mitigating factor. However, the planning involved and the need for general deterrence weighed against leniency. Robertson was sentenced to 10 years and 8 months imprisonment with a non-parole period of 8 years.
McArthur (murder). Harrison J made independent factual findings because no agreed statement of facts existed. The forensic pathologist's evidence strongly favoured a knife with at least one sharp edge as the instrument that caused both the fatal chest wound and the parallel scratch-like wounds to the deceased's lower leg, which were consistent with a serrated blade. The court rejected the suggestion that a screwdriver or similar blunt implement could have caused the injuries. The court found McArthur came armed and that the circumstances of the attack supported a finding that he intended to kill the deceased, placing the offence above mid-range in objective seriousness.
McArthur's late guilty plea on the first day of trial was accorded some, though limited, utilitarian value. His heavy drug use was noted, and the court considered varying the statutory parole-to-non-parole ratio to allow for greater post-release supervision, ultimately imposing a sentence of 25 years and 2 months with a non-parole period of 18 years and 10 months. Victim impact statements from the deceased's family were received and acknowledged, though Harrison J confirmed that the sentences imposed were those the court would have reached independently of that material, consistent with the principles in Previtera and Bollen.
Orders Made
- Robertson convicted of manslaughter and sentenced to 10 years and 8 months imprisonment, commencing 6 September 2013 and expiring 5 May 2024, with a non-parole period of 8 years expiring 5 September 2021.
- McArthur convicted of murder and sentenced to 25 years and 2 months imprisonment, commencing 2 October 2012 and expiring 1 December 2037, with a non-parole period of 18 years and 10 months expiring 1 August 2031.
Key Takeaways
- A participant in a joint criminal enterprise to assault a victim can be sentenced for manslaughter even where the co-offender alone inflicted the fatal wound and was armed without the first participant's knowledge, provided that participant was aware the enterprise exposed the victim to an appreciable risk of really serious injury.
- Considerable planning and a financial motive are factors that increase the objective seriousness of a manslaughter arising from a joint enterprise, and they engage general deterrence as a sentencing consideration.
- Forensic pathological evidence about wound characteristics can be determinative in resolving disputes about the nature of the weapon used, directly affecting findings about intent and, in turn, the objective gravity of a murder.
- A late guilty plea entered on the first day of trial retains some utilitarian value in sentencing, but that value is significantly reduced compared with an early plea.
- Under the principles in R v Previtera and Bollen v R, victim impact statements must be received and acknowledged, but the sentences imposed must be those the court would have reached regardless of the emotional content of those statements.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Previtera (1997) 94 A Crim R 76
- Bollen v R (1998) 99 A Crim R 510