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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
Date: 13 April 2022
Judge(s): Leeming JA at [1]; Rothman J at [11]; Hamill J at [169]

Background

Two young men, aged 18 years and 10 months and 18 years and 8 months respectively at the time of the offence, pleaded guilty to the murder of a 17-year-old victim. Both respondents were sentenced at first instance by Ierace J in the Supreme Court. The victim was detained for approximately eight hours, during which he was beaten with a wrench and a cricket bat, had his head stomped on, and was ultimately killed by stab wounds to the neck.

The first respondent's liability rested on extended joint criminal enterprise arising from his involvement in a specially aggravated detention. The second respondent directly used the cricket bat on the victim with an admitted intention to kill, and subsequently assisted in disposing of the body. A third co-accused, identified only as Mr S, was alleged to have led the conduct and was awaiting trial at the time of the appeal.

The sentencing judge imposed a non-parole period of 8 years and 3 months (head sentence 12 years and 9 months) on the first respondent and a non-parole period of 9 years (head sentence 13 years and 2 months) on the second respondent, the latter incorporating a 20% discount for future assistance to authorities. The Director of Public Prosecutions appealed all three grounds: failure to apply statutory aggravating factors, reliance on a wrong standard non-parole period, and manifest inadequacy.

Legal Issues

  • Whether the sentencing judge failed to take into account the statutory aggravating factors of gratuitous cruelty and actual use of a weapon under section 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 rationale where the victim was aged 17 and the offenders were aged 18
  • Whether the sentences were manifestly inadequate, including whether disproportionate weight was given to youth and immaturity, and whether the 20% discount for Mr Robertson's future assistance was excessive

Decision

Ground 1: Failure to apply statutory aggravating factors

The court rejected this ground. The sentencing judge's detailed recitation of the facts, and his characterisation of the offending as involving "savagery" and "heartlessness," demonstrated that both the use of weapons and gratuitous cruelty were taken into account as matters of substance. A sentencing judge is not required to cite each section 21A factor by paragraph number, nor to treat those provisions as a checklist (at [2]). Expressly adding such factors on top of an objective seriousness assessment already informed by them would risk an impermissible two-stage approach (at [126]).

Ground 2: Wrong standard non-parole period

The court found no error of principle. The sentencing judge expressly identified the applicable standard non-parole period as 25 years on two separate occasions. His observation that the "rationale" for the 25-year period was "significantly reduced" where the victim was nearly 18 and the offenders barely over 18 was described as "infelicitous" but did not amount to applying a different standard non-parole period (at [135]-[136]). The court agreed with the earlier Court of Criminal Appeal observation in Milat v R; Klein v R that the statutory period does not diminish based on proximity of ages, but found the sentencing judge had not in fact reduced it (at [130]). The Crown also came close to conceding that this ground alone would be insufficient to attract appellate intervention (at [6]).

Ground 3: Manifest inadequacy

The court held that to establish manifest inadequacy, the Crown must demonstrate some misapplication of principle, even where that misapplication is not apparent from the face of the reasons (at [7]). No such misapplication was established here. The starting points of 17 years (first respondent) and 24 years (second respondent) were described as light but not manifestly inadequate, given each respondent's subsidiary role relative to Mr S, their youth, and their subjective circumstances (at [8], [145]-[146]).

On the 20% discount for future assistance, the court found it was open to the sentencing judge to regard the second respondent's evidence as extremely significant: he would be the only eyewitness at Mr S's trial, and the police had initiated the approach for assistance rather than the offender volunteering it (at [8], [150]). The combined 45% discount for plea and assistance was not unusually excessive or inappropriate (at [155]). The Crown's disparity argument, based on the relatively small gap between the two respondents' sentences, was rejected on the basis that the disparity principle cannot be used to increase a sentence beyond what the sentencing judge considers appropriate (at [159]). Finally, Leeming JA observed that the need to preserve sentencing headroom for Mr S, if convicted, lent additional support to the conclusion that neither sentence was manifestly inadequate (at [9]).

Orders Made

  • The appeal in each case is dismissed.

Key Takeaways

  • A sentencing judge is not required to work through the section 21A aggravating factors in a formulaic or checklist manner. Taking those factors into account as a matter of substance, demonstrated by the overall reasoning and characterisation of the offending, is sufficient (at [2], [111]-[112]).

  • The Court of Criminal Appeal confirmed that the 25-year standard non-parole period for the murder of a person under 18 does not diminish in force simply because the victim was close to 18 years of age. However, the proximity of ages between offender and victim may remain a legitimate consideration in the exercise of the broader sentencing discretion (at [130]-[132]).

  • In dismissing the manifest inadequacy ground, the court reaffirmed that appellate intervention requires an inference of misapplication of principle, not merely a view that a different sentence would have been preferable (at [7]).

  • Where a co-offender has not yet been sentenced at the time of sentencing others involved in the same murder, it may be appropriate for the sentencing court to preserve space for a substantially more severe sentence to be imposed on that co-offender, particularly where that person is alleged to have been the principal actor (at [9]).

  • Youth and immaturity affect multiple sentencing considerations simultaneously, including culpability, the weight of retribution, and the prospects of rehabilitation. That these factors may influence both objective seriousness and the non-parole period does not constitute impermissible double-counting (at [157]).

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
- Adzioski v R [2013] NSWCCA 69
- BM v R [2019] NSWCCA 223
- Borg v R [2019] NSWCCA 129
- BP v R [2010] NSWCCA 159
- CMB v Attorney-General NSW (2015) 256 CLR 346; [2015] HCA 9
- Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
- Darcy v R [2019] NSWCCA 159
- Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hayek v R [2016] NSWCCA 126
- Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hurmz v R [2017] NSWCCA 235
- Kane v R [2021] NSWCCA 250
- Kennedy v R [2016] NSWCCA 114
- Leach v The Queen [2008] NSWCCA 73; 183 A Crim R 1
- Lowe v the Queen (1984) 154 CLR 606; [1984] HCA 46
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McKinley v R [2022] NSWCCA 14
- Milat v R; Klein v R [2014] NSWCCA 29
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
- MJ v R [2010] NSWCCA 52
- Postiglione v the Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Church [2012] NSWCCA 149
- R v Ellis (1986) 6 NSWLR 603
- R v LNT [2005] NSWCCA 307
- R v Milat & Klein [2012] NSWSC 634
- R v Robertson; R v Hopkinson [2021] NSWSC 861
- Raad v R [2011] NSWCCA 138
- Tassis v The Queen [2017] NSWCCA 143
- Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Veen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64