Citation: R v Robertson; R v Hopkinson [2021] NSWSC 861
Court: Supreme Court of New South Wales
Date: 15 July 2021
Judge: Ierace J
Background
Two co-offenders, Joel Robertson and Christopher Hopkinson, each pleaded guilty to murdering a 17-year-old victim in March 2019. Both offenders were 18 years old at the time. A third alleged co-offender, Yigit Erdogan, had not yet been tried and was the central figure in the events leading to the killing.
The victim was brought to a share house in Burwood Heights under the pretence of resolving a property dispute involving approximately $500. He was detained, beaten with a metal wrench, and subjected to prolonged torture. The group then drove to collect money from an associate, that attempt failed, and the victim was subsequently killed. His body was later disposed of in bushland.
Robertson's criminal responsibility rested on his having struck the victim's head with a cricket bat, directly causing death. Hopkinson's responsibility was based on constructive murder: the act causing death occurred in the course of a specially aggravated kidnapping, which Hopkinson participated in as a member of a joint criminal enterprise, having foreseen the possibility of actual bodily harm being inflicted on the victim.
Legal Issues
- What was the appropriate starting-point sentence for each offender, having regard to the standard non-parole period of 25 years that applies where a murder victim is under 18?
- What weight should be given to the offenders' youth, immaturity, and individual circumstances in assessing objective seriousness?
- To what extent did duress, good character, prospects of rehabilitation, cooperation with authorities, and early guilty pleas affect the sentences?
- For Hopkinson specifically, how did the constructive murder / extended joint criminal enterprise basis of liability affect the assessment of objective seriousness relative to Robertson's direct liability?
Decision
Ierace J observed that the standard non-parole period of 25 years applies where the murder victim is under 18. The rationale for extending the standard from 20 to 25 years is to reflect the greater vulnerability of young victims. His Honour found that rationale was significantly reduced here, given that the victim (aged 17) and both offenders (aged 18) were of very similar ages.
For Robertson, the objective seriousness of the offence was assessed as being in the mid-range. Robertson struck the victim's head with a cricket bat with intent to kill. Mitigating factors included that he was of prior good character, that he was unusually immature for his age, and that he had acted under duress from Erdogan. His Honour also gave credit for Robertson's assistance to authorities, which was provided despite a genuine fear of Erdogan. A 25 per cent discount was applied for his early guilty plea, reducing the starting-point sentence of 17 years and 8 months to a total of 13 years and 2 months.
For Hopkinson, the foundational offence was specially aggravated kidnapping under a joint criminal enterprise. Hopkinson had not inflicted the fatal blows himself. His Honour noted he was developmentally immature, had limited family support, and had an alcohol use disorder. He had no prior convictions and was found to be genuinely remorseful, with very good prospects of rehabilitation. His Honour assessed the objective seriousness of his offence as mid-range, taking into account his developmental immaturity and the nature of his participation. A 25 per cent discount for his early plea reduced the starting-point sentence of 17 years to a total of 12 years and 9 months.
Both sentences were backdated to 27 March 2019, the date both offenders entered custody.
Orders Made
- Robertson sentenced to imprisonment for 13 years and 2 months, commencing 27 March 2019 and expiring 26 May 2032, with a non-parole period of 9 years; eligible for parole 26 March 2028.
- Hopkinson sentenced to imprisonment for 12 years and 9 months, commencing 27 March 2019 and expiring 26 December 2031, with a non-parole period of 8 years and 3 months; eligible for parole 26 June 2027.
Key Takeaways
- Where the ages of both the victim and the offenders are very close, the Supreme Court found that the rationale for the elevated 25-year standard non-parole period (applicable where the victim is under 18) is significantly diminished, and this was reflected in the starting-point sentences.
- Youth and developmental immaturity are distinct considerations: a finding that an offender was unusually immature for their age, or developmentally immature, can independently reduce the assessed objective seriousness of a murder offence, beyond the general allowance made for youth.
- Duress falling short of a complete defence can still reduce an offender's culpability in the sentencing exercise, particularly where the offending was influenced by a dominant co-offender.
- Constructive murder based on extended joint criminal enterprise, where the offender did not personally deliver fatal blows, is capable of being treated as less serious than murder based on direct physical responsibility, even where both are assessed as mid-range.
- Genuine cooperation with authorities, even where partial and made in difficult circumstances, remains a relevant mitigating factor in murder sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 86
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 23, 44, Pt 4 Div A
Cases
- BM v R [2019] NSWCCA 223
- JM v The Queen (2012) 223 A Crim R 55; [2012] NSWCCA 83
- R v Jacobs; R v Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462
- R v Milat & Klein [2012] NSWSC 634
- Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247