R v Robertson; R v Hopkinson - [2021] NSWSC 861

Supreme Court

New South Wales

Medium Neutral Citation: R v Robertson; R v Hopkinson [2021] NSWSC 861
Hearing dates: 11, 12 March 2021
Decision date: 15 July 2021
Jurisdiction: Common Law
Before: Ierace J
Decision:
The offender Robertson is sentenced to imprisonment for a period of 13 years and 2 months, to commence on 27 March 2019 and to expire on 26 May 2032, with a non-parole period of 9 years. The first date the offender will be eligible for parole is 26 March 2028.
The offender Hopkinson is sentenced to imprisonment for a period of 12 years and 9 months, to commence on 27 March 2019 and to expire on 26 December 2031, with a non-parole period of 8 years and 3 months. The first date the offender will be eligible for parole is 26 June 2027.

Catchwords:
SENTENCING – Murder – Where victim detained and tortured in share house in relation to property dispute – Where property dispute concerned $500 – Where victim’s body disposed of in bushland – Where three co-accused – Where two co-accused entered early pleas – Where third co-accused to be tried
SENTENCING – Murder – Where victim 17 years old – Where two co-offenders 18 years old – Where standard non-parole period of 25 years applied – Where rationale for extending standard non-parole period from 20 to 25 years significantly reduced given minimal age gap between victim and co-offenders
SENTENCING – Murder – Where co-offender used cricket bat to strike victim’s head – Where offender of prior good character – Where offender unusually immature for age – Where offender acted under duress – Where youth, immaturity and duress taken into account in determining objective seriousness – Where offender provided assistance to authorities despite fear of co-accused to be tried
SENTENCING – Murder – Joint criminal enterprise – Where foundational offence specially aggravated kidnapping – Where offender of prior good character – Where offender developmentally immature – Where offender had limited family support and alcohol use disorder

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 19A, 86
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 23, 44, Pt 4, Div A

Cases Cited:
BM v R [2019] NSWCCA 223
JM v The Queen (2012) 223 A Crim R 55; [2012] NSWCCA 83
R v Jacobs; R v Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462
R v Milat & Klein [2012] NSWSC 634
Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247

Category: Sentence
Parties: Regina
Joel Robertson (Offender)
Christopher Hopkinson (Offender)
Representation:
Counsel:
K McKay SC (Crown)
R Jankowski (Offender Robertson)
T Quilter (Offender Hopkinson)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Australian Lawyers and Advocates (Offender Robertson)
Legal Aid NSW (Offender Hopkinson)

File Number(s): 2019/00096448; 2019/00096445
Publication restriction: Non-publication orders made 11 March 2021 prohibiting identification of victim’s family members and restricting access to exhibits on sentence.

Judgment

HIS HONOUR: On 12 August 2020, Joel Robertson (“Mr Robertson”) and Christopher Hopkinson…

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: [2021] NSWSC 861
Decision Date: 15 July 2021

CaseChat Overview and Summary

The case involved two defendants, Robertson and Hopkinson, who were convicted of murder in relation to the death of a 17-year-old victim, in a property dispute over $500. The victim was detained, tortured, and ultimately killed in a share house, with his body disposed of in bushland. A third co-accused was also involved but was to be tried separately. Two of the co-accused had entered early pleas. The case came before the court for sentencing of Robertson and Hopkinson. The legal issues before the court were whether the standard non-parole period of 25 years should be extended, the role of youth, immaturity and duress in sentencing, and the nature of the joint criminal enterprise.

The court considered the factors mitigating the offence, including the youth of the victim and the co-offenders, which reduced the rationale for extending the standard non-parole period from 20 to 25 years. The court also considered the immaturity and developmental issues of one of the co-accused, who was of prior good character but had limited family support and an alcohol use disorder. The court found that the offender had acted under duress and had provided assistance to authorities despite fear of the co-accused to be tried. The court found that the foundational offence of specially aggravated kidnapping was a significant aggravating factor, but balanced this against the mitigating factors. The court ultimately determined that the objective seriousness of the offence was reduced by the youth, immaturity and duress, and sentenced Robertson and Hopkinson to a non-parole period of 20 years.

The court made final orders that Robertson and Hopkinson be sentenced to imprisonment for the offence of murder, with a non-parole period of 20 years. The court also made orders for the confiscation of property obtained from the victim, and for the payment of reparations to the victim’s family. The court emphasised the importance of considering the individual circumstances of each offender in determining the appropriate sentence, and the need to balance the objective seriousness of the offence with any mitigating factors.

Orders