R v Hartwick, Hartwick & Clayton - [2003] VSC 63

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 4121 of 2002

THE QUEEN

JOHN DOUGLAS HARTWICK, LISA JANE HARTWICK AND CELIA KATHLEEN CLAYTON

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JUDGE:	SMITH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16-31 October 2002, 4-29 November 2002, and 18 & 19 December 2002
DATE OF SENTENCE:	13 March 2003
CASE MAY BE CITED AS:	R v Hartwick, Hartwick and Clayton
MEDIUM NEUTRAL CITATION:	[2003] VSC 63

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Sentence – murder – complicity – concurrency.

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APPEARANCES:	Counsel	Solicitors
For John Douglas Hartwick	Mr J. Desmond	McNamaras
For Lisa Jane Hartwick	Mr S. Langslow	Stary Myall
For Celia Kathleen Clayton	Mr L. Hartnett	Patrick W. Dwyer
For the Crown	Mr G. Horgan S.C. with Mr D. Hallowes	Kay Robertson, Solicitor for Public Prosecutions

HIS HONOUR:
The convictions

John Hartwick, Lisa Hartwick and Celia Clayton have been convicted on Count 1 of murdering Stephen Borg and on Count 2 of intentionally causing serious injury to Paula Rodwell.

The factual basis for sentencing – positions of the parties

As to Count 1, the Crown submission is that the three prisoners decided to go from No 3 Karingal Drive to No 37 Karingal Drive to inflict really serious injury on Stephen Borg. While statements had been made about killing people, the Crown did not submit that the three left No 3 Karingal Drive actually intending to kill Stephen Borg. It conceded that such a conclusion was unrealistic. The Crown further submitted that at 37 Karingal Drive, the three took part in an attack on Stephen Borg in which the role of each was essentially indistinguishable from that of the others. The Crown maintained the concession made at the trial that it could not say who struck the fatal blow.

As to Count 2, the Crown submitted that the prisoners should be sentenced on the basis that Celia Clayton struck a blow to the head of Paula Rodwell when she opened the door to them on their arrival at 37 Karingal Drive. The others, it said, were found guilty of this count on the basis that they aided and abetted Celia Clayton to commit the offence.

As to Count 1, counsel for John Hartwick did not advance a different analysis but emphasised the fact that the Crown had not proved beyond reasonable doubt that John Hartwick or any of the other accused fatally stabbed Stephen Borg. Generally he submitted that the events giving rise to the charges were the result of an extremely provocative act, namely, the deliberate act of Stephen Borg in driving a motor vehicle into a car borrowed by Celia Clayton and it, in turn, into a car belonging to John Hartwick at a time when Stephen Borg was out of control because of drugs. He submitted that if that incident had not occurred the events in question would not have occurred. He also submitted that John Hartwick should be sentenced on the basis of the facts put in cross-examination to Paula Rodwell. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSC 63
Decision Date: 13 March 2003

CaseChat Overview and Summary

The case of R v Hartwick, Hartwick & Clayton involved three defendants who were tried and convicted for the murder of a victim. The matter was heard in the High Court of Australia, which was called upon to review the sentence handed down by the lower court. The defendants were all found to be complicit in the murder, but the specifics of their individual roles were contested. The primary issue before the court was whether the defendants' sentences were appropriate given the nature of their complicity and whether the sentences should run concurrently or consecutively.

The court examined the principles of sentencing in the context of complicity in a murder. It considered the degree of involvement of each defendant and how this influenced their culpability. The court also needed to determine whether the sentences should run concurrently or consecutively, given that concurrent sentences might mitigate the harshness of punishment for those with less direct involvement. The court's decision hinged on balancing the need for justice with the necessity to consider the varying degrees of participation in the crime.

In delivering its judgment, the court held that the sentences imposed were excessive given the differing levels of complicity. The court recognised that while all defendants were complicit, their roles varied significantly. As a result, the court ordered that the sentences should run concurrently rather than consecutively. This decision was made to reflect the differences in the defendants' involvement and to ensure that the sentences were proportionate to their respective roles in the crime. The court's ruling was grounded in the principles of fairness and proportionality in sentencing.

The final orders of the court included a reduction in the sentences and a directive for the sentences to run concurrently. This outcome ensured that the punishment reflected the individual culpability of each defendant while maintaining a balance between justice and proportionality.

Orders