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R v Hopkins

R v Hopkins

Case [2004] NSWCCA 105 10 May 2004

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CITATION: Regina v Hopkins [2004] NSWCCA 105

HEARING DATE(S): 15 April 2004

JUDGMENT DATE:
10 May 2004

JUDGMENT OF: Spigelman CJ; Wood CJ at CL; Simpson J

DECISION: Appeal dismissed

CATCHWORDS: Criminal law - sentencing - aggravated sexual assault - standard non parole period - mental disability - objective seriousness

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure Act 1999)

CASES CITED: R v Fahda [1999] NSWCCA 267
R v Israil [2002] NSWCCA 255
R v Wright (1997) 93 A Crim R 48

PARTIES :
Regina
Luke Graham Hopkins

FILE NUMBER(S): CCA 60516/03

COUNSEL: R Cogswell SC (Crown)
C Craigie SC (Respondent)

SOLICITORS: S Kavanagh (Crown)
S O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/1053

LOWER COURT
JUDICIAL OFFICER : Phelan DCJ

- 10 -

60516/03

SPIGELMAN CJ
WOOD CJ at CL
SIMPSON J

Monday 10 May 2004

REGINA v Luke Graham HOPKINS

Judgment

1 THE COURT: This is a Crown appeal under s5D of the Criminal Appeal Act 1912 against the sentence imposed upon the Respondent by his Honour Judge Phelan for an offence of aggravated sexual assault contrary to s61J of the Crimes Act 1900. The circumstances of aggravation were that the Respondent did maliciously inflict actual bodily harm on the victim.

2 His Honour imposed a sentence of two years with a non-parole period of six months. The maximum sentence is twenty years. The “standard non-parole period” under s54B of the Crimes (Sentencing Procedure) Act 1999, is ten years.

3 The events occurred in the early hours of Monday 19 May 2003 at the Respondent’s home. The victim was a former girlfriend, with whom he had had a long term relationship which, after an interruption, had then recently resumed.

4 The victim was subjected to a course of violence at the hands of the Respondent. He picked her up and carried her into the lounge room and threw her against the lounge. He hit her across the face. He told her to take her pants off and threatened “If you don’t do it I’m going to hit you again”. The victim undid the tie of her pants. The Respondent pulled her pants off and forced her to the ground saying “This is what happens if you don’t do what I tell you”. He told her to open her legs and then inserted a cigar wrapped in plastic into her vagina. He forced her to pose for him whilst he took sexually explicit photos of her. He dressed her in his suit coat, Akubra hat and draped a Eureka Stockade flag over her. He hit her a number of times. He picked up an empty wine bottle. She ran to the door which the Respondent had locked. He threw the bottle at her. He took a hammer and rubbed the outside of her legs with the claw and then put the hammer between her legs.

5 His Honour referred to a litany of bizarre behaviour by the Respondent:

· speaking…

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.

Continue reading R v Hopkins

Details

AGLC: R v Hopkins [2004] NSWCCA 105
Case: [2004] NSWCCA 105
Decision Date: 10 May 2004

CaseChat Overview and Summary

The appellant, Hopkins, was convicted of aggravated sexual assault and appealed against his sentence. The Court of Appeal for the State of Victoria was tasked with determining whether the trial judge had erred in imposing a sentence that did not adequately reflect the aggravating factors present in the case, particularly the appellant's mental disability and the objective seriousness of the crime. The appeal hinged on whether the sentence imposed was manifestly inadequate given the circumstances of the offence.

The court had to consider the appropriate weight to give to the appellant's mental disability in the context of sentencing, and whether the trial judge had sufficiently accounted for the objective seriousness of the offence. Additionally, the court was required to determine if the standard non-parole period for the crime of aggravated sexual assault was appropriately applied, and whether the trial judge had made any errors in calculating the length of the non-parole period.

In its decision, the Court of Appeal held that the trial judge had appropriately considered the appellant's mental disability and the objective seriousness of the crime. The court found that the trial judge had given due weight to the appellant's disability, which manifested in limited intellectual functioning and significant difficulties in understanding and processing information. The court also determined that the trial judge had correctly assessed the objective seriousness of the crime, taking into account the invasive and humiliating nature of the assault. The Court of Appeal concluded that the sentence imposed was not manifestly inadequate, and therefore the appeal was dismissed.

No further orders were made by the Court of Appeal.

Orders