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Court of Criminal Appeal 13 April 2022

R v Hopkinson; R v Robertson

[2022] NSWCCA 80

Homicide
CRIME CROWN APPEAL AGAINST SENTENCE ALLEGED ERROR IN APPLYING STANDARD NON PAROLE PERIOD ALLEGED MANIFEST INADEQUACY NO ERROR DISCLOSED

Citation: R v Hopkinson; R v Robertson [2022] NSWCCA 80
Court: Court of Criminal Appeal, New South Wales
Date: 13 April 2022
Judges: Leeming JA at [1]; Rothman J at [11]; Hamill J at [169]

Background

Two young male offenders, Hopkinson and Robertson, were sentenced at first instance following convictions for the murder of a minor, committed as part of a joint enterprise also involving a third person (referred to as "Mr S"), who had not yet been tried at the time of sentencing. The sentencing judge found that both offenders played subsidiary roles compared to Mr S, and took into account their youth, backgrounds, and other subjective circumstances in fixing their sentences. Robertson had also provided assistance to authorities, for which a 20% discount was applied.

The primary judge imposed undiscounted starting points of 17 years (Hopkinson) and 24 years (Robertson), both below the applicable standard non-parole period of 25 years, which applies where the murder victim is under 18 years of age.

The Crown appealed, contending that the sentences were infected by legal error and were manifestly inadequate. All three judges of the Court of Criminal Appeal agreed the appeal should be dismissed.

  • Whether the sentencing judge failed to take into account the statutory aggravating factors of gratuitous cruelty and use of a weapon under s 21A(2)(c) and (f) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred by treating the 25-year standard non-parole period as having reduced significance where both the offenders and the victim were close to 18 years of age
  • Whether the sentences were manifestly inadequate, including whether an excessive discount was applied for Robertson's assistance to authorities

Decision

Ground 1: Statutory aggravating factors

The Court rejected the argument that the sentencing judge had failed to consider gratuitous cruelty or Robertson's use of a cricket bat. The judge's reasons described the circumstances in detail, including the heartlessness and savagery of the offending and the force Robertson brought to bear as a grade cricketer. The Court confirmed that a sentencing judge is not required to tick off each s 21A factor as though working through a checklist. The question is one of substance, not form.

Ground 2: Standard non-parole period

The Crown argued the primary judge had wrongly relied on a passage from the first-instance decision in R v Milat & Klein [2012] NSWSC 634, which suggested the 25-year standard non-parole period had "reduced significance" where offender and victim were both close to 18. The Court of Criminal Appeal had previously doubted that reasoning in Milat v R; Klein v R [2014] NSWCCA 29, but that disapproval was not drawn to the sentencing judge's attention (the omission was accepted to be inadvertent). The Court stated clearly that the statute applies uniformly: the standard non-parole period for murder of a person aged under 18 is 25 years, regardless of how close the victim was to that threshold. Other factors, such as an offender's own youth, may carry weight for separate reasons, but that weight does not derive from any diminished force of the standard non-parole period itself. However, the Crown effectively acknowledged this ground alone would not warrant intervention, and the Court agreed.

Ground 3: Manifest inadequacy

The Court held the sentences were not manifestly inadequate. To succeed on this ground, the Crown needed to establish that some misapplication of principle could be inferred, even if not apparent on the face of the reasons. The Court was unpersuaded that such an inference was available. The subsidiary roles of both offenders relative to Mr S, combined with their youth and backgrounds, made the starting points available. The 20% discount for Robertson's assistance was open on the facts, particularly given the police had initiated the approach for assistance rather than Robertson volunteering, and no adequate attempt had been made to identify specific evidential gaps his testimony would address. The Court also noted that parity considerations with the forthcoming sentence of Mr S were legitimately relevant, given he was alleged to be the most central participant.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing judge is not required to explicitly identify and address each statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as a formal checklist exercise. Compliance is assessed as a matter of substance from the reasons as a whole.
  • The Court of Criminal Appeal confirmed that the 25-year standard non-parole period for the murder of a victim under 18 years of age operates uniformly, regardless of how close the victim was to the age threshold. While an offender's youth may be a weighty mitigating factor, that weight operates independently and does not reduce the force of the standard non-parole period itself.
  • In dismissing the Crown's manifest inadequacy ground, the Court applied the established principle that intervention requires an inference of misapplication of principle, not merely a view that a different and heavier sentence could have been imposed.
  • Where a co-offender's trial is pending, it is legitimate for a sentencing court to take into account potential parity considerations when fixing sentences for those already before it, particularly where one offender is alleged to be the most central participant.
  • Incorporating complaints about specific patent errors (such as a disputed discount) as sub-grounds of manifest inadequacy is procedurally confused. The Court noted this conflation has been repeatedly criticised, as patent error and manifest inadequacy are conceptually distinct grounds of appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 44, 54A, 54B

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- CMB v Attorney-General NSW (2015) 256 CLR 346; [2015] HCA 9
- Milat v R; Klein v R [2014] NSWCCA 29
- Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Leach v The Queen [2008] NSWCCA 73; 183 A Crim R 1
- Kane v R [2021] NSWCCA 250
- Hurmz v R [2017] NSWCCA 235
- Darcy v R [2019] NSWCCA 159
- McKinley v R [2022] NSWCCA 14
- BP v R [2010] NSWCCA 159
- BM v R [2019] NSWCCA 223
- Borg v R [2019] NSWCCA 129
- Adzioski v R [2013] NSWCCA 69
- Hayek v R [2016] NSWCCA 126
- Kennedy v R [2016] NSWCCA 114