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Supreme Court 17 February 2023

R v Erdogan

[2023] NSWSC 101

Homicide
SENTENCE MURDER

Citation: R v Erdogan [2023] NSWSC 101
Court: Supreme Court of New South Wales
Date: 17 February 2023
Judge: Ierace J

Background

The offender was convicted by jury of the murder of a 17-year-old victim on 12 March 2019 at a residential property in Burwood Heights. Two co-offenders had been sentenced for the same murder before the offender's trial. A second count of kidnapping (detaining the victim without consent in company, with intention to obtain a financial advantage, while actual bodily harm was occasioned) was also on the indictment, but the jury could not reach a verdict on that count and the Director of Public Prosecutions elected not to proceed to a retrial.

The victim was brought to the Burwood house by the offender on the evening before the killing. Evidence established that the offender instigated the murder, that the victim was tortured over an extended period, and that he was then repeatedly stabbed. The killing occurred inside the house occupied by the offender and his associates.

The court was required to fix a sentence for the murder having regard to the offender's specific role and culpability, and to ensure the sentence bore a proper relationship to those imposed on the co-offenders.

  • What were the offender's intention, role, and motive in the murder, assessed beyond reasonable doubt on the sentencing evidence?
  • What was the objective seriousness of the offender's offence, particularly in light of findings that he instigated the murder?
  • How should parity be applied given that the co-offenders received different sentences based on significantly different subjective circumstances (remorse, youth, immaturity, duress, rehabilitation prospects)?
  • What non-parole period and head sentence were appropriate, taking into account the standard non-parole period of 25 years applicable where the victim was under 18 years of age?

Decision

Ierace J was satisfied beyond reasonable doubt that the offender instigated the murder. The court treated the offender's own evidence with considerable caution, having found him an unreliable witness at trial. The court also approached the evidence of witnesses who became aware of the killing after the event and did not report it to police with a degree of caution as to reliability. The victim, aged 17 years and two months, was tortured over an extended period before being repeatedly stabbed.

On objective seriousness, the court placed the offence at a high level. As the instigator of the murder, the offender's culpability was assessed as greater than that of each co-offender. The co-offenders had each been sentenced on a basis that included the kidnapping conduct as part of the overall facts, which constituted a relevant disparity with the facts available for sentencing the offender (since the jury deadlocked on the kidnapping count).

On parity, the court considered the sentences imposed on both co-offenders. Mr Robertson received a starting point of 24 years, with significant mitigating factors including genuine remorse, no drug or alcohol issues, high rehabilitation prospects, prior good character, no premeditation, an element of non-exculpatory duress, and exceptional immaturity. Mr Hopkinson received a starting point of 17 years, reflecting findings that his offence was of mid-range seriousness, that the offence would not have occurred but for the offender, and that he suffered a persistent depressive disorder and developmental immaturity, while also being genuinely remorseful. In contrast, the offender showed no remorse and had guarded prospects of rehabilitation. The court also took into account the onerous conditions associated with COVID-19 that the offender had endured in custody.

The standard non-parole period of 25 years applied given that the victim was under 18. After weighing all objective and subjective factors, the court imposed a total sentence of 35 years with a non-parole period of 24 years.

Orders Made

  • Non-parole period of 24 years imposed.
  • Balance of term of 11 years imposed (total sentence: 35 years).
  • Sentence backdated to commence 27 April 2019.
  • Earliest eligible release date: 26 April 2043.
  • Total sentence expiry: 26 April 2054.

Key Takeaways

  • The Supreme Court found that the offender's role as instigator of the murder placed his objective culpability above that of both co-offenders, notwithstanding that the kidnapping count did not result in a verdict.
  • Where co-offenders have been sentenced before the principal offender's trial, the sentencing court must undertake a careful parity analysis that accounts for specific mitigating factors available to those co-offenders but not to the offender being sentenced.
  • Absence of remorse and guarded rehabilitation prospects were treated as significant factors weighing against the offender, in contrast to findings of genuine remorse and high rehabilitation prospects made in favour of the co-offenders.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a standard non-parole period of 25 years applies where the murder victim was under 18 years of age, and this benchmark informed the sentencing exercise.
  • Consistent with Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, the court factored in the additional hardship of COVID-19 conditions experienced in custody as part of the overall sentencing assessment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A(1), 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 61(1)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Robertson; R v Hopkinson [2021] NSWSC 861
- Savvas v R (1995) 183 CLR 1; [1995] HCA 29