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

1. HIS HONOUR: On 12 August 2020, Joel Robertson (“Mr Robertson”) and Christopher Hopkinson (“Mr Hopkinson”) each entered a plea of guilty in the Local Court to a charge that between 11 March 2019 and 15 March 2019 at Burwood Heights, he murdered Justin Tsang (“the deceased”). They were committed to this Court for sentence.

2. The maximum penalty for the offence of murder is life imprisonment: s 19A of the Crimes Act 1900 (NSW) (“the Act”). If the victim is under 18 years of age, there is a standard non-parole period of 25 years, pursuant to Div A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”). The deceased was aged 17 years and 2 months at the time he was killed.

3. The Crown case as to the bases of criminal responsibility for the offence differed for each offender. Mr Robertson was criminally responsible as a result of blows he delivered to the deceased’s head with a cricket bat with an intention to kill him, those blows directly contributing to his death.

4. Mr Hopkinson’s criminal responsibility was based on constructive murder, meaning that the act or acts that caused the death of the deceased were done in the course of, or immediately after, the commission by him of a crime punishable by imprisonment for 25 years: s 18(1)(a) of the Crimes Act. The foundational offence was that he detained the deceased for advantage whilst in company, in which actual bodily harm was inflicted upon the deceased during his detention, contrary to s 86(3) of the Crimes Act 1900 (NSW), being an offence that has a maximum penalty of 25 years (“specially aggravated kidnapping”). It was alleged by the Crown that Mr Hopkinson committed that offence as a member of a joint criminal enterprise which he joined and, at the time he did so, he foresaw the possibility of the infliction of actual bodily harm (“extended joint criminal enterprise”).

The offence

5. The agreed facts as to the offence are to the following effect.

Background

6. The deceased was killed on 12 March 2019. As of that date, Mr Robertson and Mr Hopkinson were both aged 18 years. Mr Robertson and Mr Hopkinson were residing in a double-storey house in Burwood Heights (“the Burwood house”) which they had leased in November 2018, together with three other young men who I will refer to as Messrs X, Y and Z. An associate of the five residents was an alleged co-offender, Yigit Erdogan. He was aged 19 years and 6 months at the time of the offence.

7. Messrs Y and Z and Mr Erdogan had attended the same high school and knew each other from that time. Mr Erdogan had been staying at the Burwood house for about a month prior to the offence.

8. The deceased had attended the same school as Messrs Y and Z and Mr Erdogan but was in a different year. Messrs X and Y had not previously met the deceased. Mr Erdogan knew the deceased from occasionally attending an internet café which the deceased frequented.

9. Mr Erdogan was a known user and supplier of methylamphetamine, or “ice”. The deceased was involved in supplying drugs such as Xanax (alprazolam), cannabis and MDMA, and had started taking methylamphetamine with Mr Erdogan.

Monday 11 March 2019

10. The deceased left his home in Canada Bay, where he lived with his parents and two sisters, between 1pm and 5pm. He did not say where he was going or when he would be back. That was the last time the deceased was seen by his family. At about 5pm, the deceased arrived at an address in Drummoyne where he socialised with one of the residents.

11. At about 6pm, Mr Erdogan phoned the deceased and arranged to pick him up. Mr Erdogan drove to the address in Drummoyne in a car that was registered to Mr Robertson and collected the deceased. Mr Z was a passenger in the car, and that was the first time that he met the deceased. They drove to the Burwood house, where Mr Z went to bed. Mr Y took two Xanax tablets given to him by the deceased and Mr Erdogan and fell asleep in his room, not waking until about 10 or 11pm the following night, being 12 March 2019. At 9pm, Mr Erdogan and the deceased attended a gym in Burwood.

Tuesday 12 March 2019

12. Data concerning the deceased’s mobile phone usage indicates that it utilised cell sites in the Campbelltown area between 10:15pm on 11 March 2019 and 1am on 12 March 2019, the greater St George area between 1:45am and 3am and the vicinity of the Burwood house shortly after 3am. It was at this time that Mr Hopkinson first met the deceased.

13. The deceased’s phone was last used at 9:06am, which was for downloading data. The records as to the phone’s whereabouts at that time are consistent with it still being in the vicinity of the Burwood house.

14. At about that time, the deceased and Mr Erdogan were inside Mr Robertson’s car, which was parked out the front of the Burwood house, engaged in a property dispute. Mr Erdogan was shouting at the deceased, who became very upset. MrZ witnessed the argument and retreated inside, not wanting to become involved.

15. The deceased and Mr Erdogan went into the Burwood house and walked upstairs into Mr Hopkinson’s bedroom. Mr Erdogan was holding a foot-long metal wrench with red handles. He accused the deceased of stealing money and property from the residents of the Burwood house; in particular, $250 from Mr Z, who confirmed that that amount of cash was missing from his wardrobe. The deceased denied stealing any property, and begged Mr Z to look for it. Mr Z noticed that the deceased had a number of bruises. Mr Erdogan walked towards the deceased with the wrench and spoke to him in a friendly tone, then quickly became aggressive and assaulted him with the wrench, causing serious injuries to the deceased’s arms and head. The deceased screamed. Mr Hopkinson watched the assaults, primarily from near the doorway of his bedroom. During the assault, Mr Hopkinson’s singlet became stained with blood. Mr Z was outside the bedroom listening to the assault.

16. At this time, Mr Erdogan was under the influence of methylamphetamine. He told Mr Z to bring a tool bag from downstairs, which Mr Z did, because he was afraid of Mr Erdogan. Mr Z suggested that Mr Erdogan use the wrench to choke the deceased, however Mr Erdogan did not do so.

17. Mr Erdogan told Mr Z to go to Ashfield Bunnings and purchase a welding machine, which he wanted to use to torture the deceased to get money from him, and to teach him a lesson. Mr Z did as instructed, leaving the Burwood house at about 11:28am in Mr Robertson’s car. At 11:53am, Mr Z purchased an arc welder and electrodes from Ashfield Bunnings. He returned to the Burwood house at 12:04pm and gave the welder to Mr Erdogan and went to his bedroom, which was upstairs. It appears that the welder was not used on the deceased.

18. Later, Mr Z went downstairs and was joined by Mr Erdogan in the living room, leaving Mr Hopkinson in his bedroom upstairs, holding the wrench to prevent the deceased from leaving. Mr Erdogan went through the contents of the deceased’s backpack. Inside was a set of ear phones, Air Pods, a cigarette case, two pill containers of Xanax and a small bag of capsules or pills. Mr Erdogan gave Mr Z the deceased’s cigarette case, from which they removed and smoked a cigarette.

19. Mr Erdogan and Mr Z went back upstairs to Mr Hopkinson’s bedroom. Mr Erdogan went through the deceased’s wallet, taking $10 from it and giving it to Mr Z. Mr Erdogan tortured the deceased. Mr Z went to his bedroom and shut the door. Mr Erdogan and Mr Hopkinson stayed in Mr Hopkinson’s bedroom with the deceased.

20. At a later point, the deceased, Mr Erdogan, Mr Hopkinson and Mr Z were all downstairs in the living room. Mr Erdogan wanted to retrieve about $800 from the deceased, which he claimed was compensation for property that the deceased had stolen from the house. Mr Erdogan gave the deceased a Xanax tablet for the pain from the assault in Mr Hopkinson’s bedroom.

21. The deceased, Mr Erdogan, Mr Hopkinson and Mr Z all went to Mr Robertson’s car. Mr Erdogan told Mr Z to go and wake up Mr Robertson, which Mr Z did. Mr Robertson and Mr Z got into the car.

22. Mr Erdogan, who still had the wrench, was the driver of the car. Mr Z was seated in the front passenger seat and Mr Robertson and Mr Hopkinson sat in the back with the deceased. Mr Erdogan asked the deceased to nominate somebody who could give them money. One of the occupants of the car suggested a particular person, who I will refer to as Mr A. At about 12:59pm, they drove to Mr A’s house in Burwood. Mr Erdogan called Mr A from Mr Z’s phone at 1:04pm and said: “[The deceased] owes $500 can you pay it for him?” Mr A told Mr Erdogan that he had no money to give. The deceased could be heard in the background of the phone call. Mr A heard Mr Erdogan say to the deceased: “You little fucking mutt, you fucking dog”. Mr Erdogan said to Mr A: “I’ll have to get his arms broken then” and hung up.

The killing of the deceased

23. Following a discussion in the car, they drove back to the Burwood house at about 1:15pm. Mr Erdogan, Mr Hopkinson and the deceased entered the house. Mr Erdogan made the deceased strip to his underwear. Mr Erdogan held the wrench over the deceased’s head. Mr Hopkinson stood behind Mr Erdogan. About 10 minutes after they had entered the house, Mr Robertson and Mr Z came inside. Mr Z went up to his bedroom, as he did not want to be involved and was scared. He was told by either Mr Hopkinson or Mr Robertson to stay in his bedroom and not get involved.

24. The agreed facts note that the evidence does not disclose where in the house Mr Robertson was until he was later handed a cricket bat by Mr Erdogan in the hallway and told to strike the deceased. However, Mr Robertson sent the following text messages to Mr X from 1:36pm:

“Don’t come to the house (13:36:22)

… stop inquiring I promise I’ll talk to you about it personally (13:39:38)

… this is for your own good (13:40:07)

Don’t go curious George on me (13:40:17).”

25. A short while later, Mr Erdogan entered Mr Z’s bedroom and told him to “soundproof” his room and the house. Mr Z closed the windows and blinds in his bedroom and the adjacent sunroom. The deceased was still downstairs in his underwear. Mr Z went back to his bedroom and put his headphones on, trying to ignore what was happening downstairs. Mr Erdogan put on loud fast-paced music.

26. A while later, Mr Erdogan came into Mr Z’s bedroom and said: “This is why you don’t fuck with me, because you end up like him downstairs”. Mr Z said that he did not contact the authorities because he was afraid of Mr Erdogan. A few hours later, Mr Erdogan again entered Mr Z’s room and said that the deceased was so injured that if he went to hospital, he would “snitch” on Mr Erdogan, so they would now have to kill him.

27. The deceased was repeatedly assaulted until about 5pm, in the form of blunt force trauma to his head and limbs. During this period, Mr Erdogan struck the deceased with the wrench and with a cricket bat. In the latter stages of the assault, Mr Erdogan passed the cricket bat to Mr Robertson, who struck the deceased a number of times to the head with it. Mr Erdogan then stomped on the deceased’s head. He was wearing steel-toed boots.

28. Mr Hopkinson watched the assault from nearby. At some time after striking the deceased with the cricket bat, Mr Robertson was observed holding a knife and “poking” it at the deceased’s neck, but not cutting his neck. Mr Erdogan took the knife and used it in an attempt to “finish off” the deceased, but the knife blade broke in the deceased’s neck. Mr Erdogan got another knife, which he used to stab the deceased in the neck.

29. For the duration of the assault, Mr Z remained upstairs in his bedroom. Mr X was at work and did not return to the house until the next day, after being messaged by Mr Robertson that it was safe to return.

The clean-up and disposal of the deceased’s body

30. Mr Erdogan covered the deceased’s body in paper towels, saying to leave it in place, so that the blood would drain out onto the paper towels. At some point, Mr Erdogan took the deceased’s TAG silver watch from his wrist and gave it to Mr Z, together with the deceased’s earphones and cigarette case. Mr Erdogan took the deceased’s mobile phone. Mr Robertson took the deceased’s zip-up Nike jacket, shoes and his neck chain.

31. At around 5:55pm, Mr Erdogan and Mr Robertson went to Ashfield Bunnings in Mr Robertson’s car and purchased the following items to be used in the disposal of the deceased’s body: black builders’ plastic sheeting; duct tape; cotton gardening gloves; safety gloves; sponges; a shovel; a hoe; and a fuel can.

32. Those items were purchased with a credit card belonging to Mr Robertson’s father (“the AMEX card”). When they returned to the Burwood house, Mr Erdogan fell asleep in the car. Mr Z assisted him into the house, where he continued to sleep. The others cleaned up. Mr Z, at Mr Robertson’s direction, woke Mr Hopkinson and asked him to help with the clean-up. Mr Robertson, Mr Hopkinson and Mr Z used a floor squeegee, a mop and paper towels to clean the deceased’s blood from the floor. They then put the bloodied cleaning items in a garbage bag which they put in the bin. Mr Hopkinson also put the knife in the bin.

33. Mr Robertson wrapped the deceased’s body in the black plastic sheeting while Mr Hopkinson and Mr Z continued cleaning. Mr Erdogan had previously suggested that they burn the deceased’s body and then bury it, however Mr Z did not think that was a good idea.

34. While Mr Erdogan slept, Mr Robertson, Mr Hopkinson and Mr Z decided to bury the deceased’s body. The three men placed it in the boot of Mr Robertson’s car and, at approximately 9:15pm, Mr Robertson and Mr Z drove to Jamison Lookout at Wentworth Falls in the Blue Mountains. Mr Robertson drove, and Mr Z gave directions. On the way, at 9:44pm, they stopped at a service station and McDonald’s drive-through restaurant at Prospect, where they used the AMEX card to buy drinks.

35. They arrived at Jamison Lookout at about 10:30 or 11pm. Mr Robertson and Mr Z removed the deceased’s body from the car and dragged it about 15m into bushland. Mr Robertson dug a shallow grave while Mr Z held a light. Mr Robertson and Mr Z both wore gloves. They placed the deceased’s body into the grave and Mr Z covered it with dirt. Mr Robertson was wearing the deceased’s jacket at the time.

36. Mr Robertson and Mr Z returned to the Burwood house, stopping on the way at a McDonald’s restaurant at Blaxland to purchase drinks with the AMEX card. They disposed of a garbage bag of items used to clean the crime scene, by throwing it to the side of the road on the Great Western Highway at Bullaburra. Mr Z threw his gloves out of the window during the drive back to Sydney.

13 March 2019

37. Mr Robertson and Mr Z arrived back at the Burwood house at about 1:30am.

38. Mr Z went to bed and later that morning, went to work. After finishing work, he went straight to his parents’ residence and told them what had happened. His parents arranged for him to speak with a lawyer. I will return to Mr Z later in this summary.

39. Mr X returned to the Burwood house that afternoon. He and Mr Y suspected that Mr Erdogan had been responsible for the property thefts. They searched Mr Erdogan’s bag and found within it an Apple watch that belonged to Mr Y and two mobile phones that belonged to Mr X. They confronted Mr Erdogan about the stolen property. Mr Erdogan told them that the deceased had been stealing from them and that he, Mr Erdogan, had been framed by the deceased. Mr Erdogan said that he had confronted the deceased and hit him with a wrench. He told them that he had not meant to kill the deceased, but had accidentally fatally wounded him. He also said that there was a knife involved.

40. Mr Erdogan said words to the effect: “We just killed some cunt in the hallway” or “We fuckin’ killed some cunt in the hallway cuz”. Mr Robertson asked: “Why the fuck are you telling anyone that?” Mr Erdogan continued, saying to Mr Y: “Last night when you were fuckin’ passed out on Xans upstairs. How the fuck did you not hear him, hear it, over the Hardstar?” (“Hardstar” is a type of music.) Mr Erdogan spoke of having tortured the deceased, stabbing him in the neck with a knife and killing him to avoid going to prison. He said “Look at the door, there’s blood everywhere, we murdered someone last night”. Mr Erdogan said that he had placed paper towels on the deceased’s body before he died to clean up the blood. He said that the deceased “was gonna rat him out to the cops. So he had to die”. Mr Erdogan threatened to kill Mr X if he went to the police.

41. Both Mr Robertson and Mr Hopkinson were present during this conversation. Mr Robertson said that he had hit the deceased in the head with a cricket bat and had witnessed Mr Erdogan stab the deceased in the neck. He said that the deceased’s body was buried in the Blue Mountains.

42. Mr Hopkinson said that he had witnessed the murder and had later helped clean up the mess. At one point during the conversation, Mr Hopkinson said: “They got him naked except for his underpants”.

37. Mr Erdogan also stated that he had stomped on the deceased’s head with his shoe to kill the deceased, after Mr Robertson had inflicted blows with the cricket bat.

38. Overnight on Wednesday 13 March 2019 to Thursday 14 March 2019, Mr Robertson, Mr Hopkinson, Mr X and Mr Y had a conversation in Mr X’s bedroom. Mr Robertson said:

“[ERDOGAN] found [the deceased] stealing so he got a wrench, lashed out at him, didn’t intend to kill him but actually, but apparently [the deceased] flinched and he hit him in the back of the head.”

45. Mr Robertson said they:

“… went to Bunnings and bought a shovel and tarp from there late night. Uh, while they were um cleaning up the body downstairs ‘cause [ERDOGAN] was on Xanax and he passed out after committing the murder, um, they took it in [Mr Robertson’s car], the body that is, and dug a grave [in the Blue Mountains].”

46. Mr Robertson disclosed that a knife, a wrench and a cricket bat were used on the deceased. Mr Robertson said that Mr Erdogan passed him the cricket bat and said: “You’re a better swinger” and that he, Mr Robertson, was trying to “Put the guy out of his misery”. Mr Robertson said that he swung the bat at the deceased a few times trying to knock him unconscious. When that did not work, Mr Erdogan got a knife and cut the deceased’s throat. Mr Robertson said that Mr Erdogan did not want to let the deceased leave the house alive because he was afraid that the deceased would “snitch on him”. Mr Robertson also said that he struck the deceased on the head with the cricket bat while Mr Erdogan was in the living room, and that he had done this because he was afraid that if he did not strike the deceased Mr Erdogan would kill him instead of the deceased.

47. Mr Robertson said that he went to Bunnings to get supplies for the clean-up, and that he wrapped the body in a tarp and he and Mr Z buried it in the Blue Mountains. Mr Hopkinson assisted in wrapping the body.

14 and 15 March 2019

48. On 14 March 2019, Mr Erdogan and a female friend went to the Burwood house. Whilst there, Mr Erdogan and Mr Robertson discussed the murder, which she overheard. Mr Erdogan told Mr Robertson: “She knows about it, she’s chill, she won’t snitch”. Mr Robertson said: “Dude you gotta stop talking about it”.

49. On 15 March 2019, Mr Erdogan, Mr Hopkinson and Mr X went to Bunnings Ashfield to look for an ultraviolet light which they intended to use to check whether any blood remained on the floor of the Burwood house. According to the agreed facts for Mr Hopkinson, one was not purchased. The agreed facts for Mr Robertson are that one was purchased.

50. On 15 March 2019, the deceased’s father, following two days of fruitless attempts to locate his son, filed a missing persons report with police.

16 to 19 March 2019

51. The following day, on 16 March 2019, Mr Z’s solicitor contacted police. On 18 March 2019, Mr Z provided police with an induced statement. On the morning of 19 March 2019, he showed police where the deceased’s body was buried. That afternoon, police recovered a garbage bag with blood-soaked rags and paper towel off the Great Western Highway at Bullaburra.

52. Mr Z later wore a covert recording device to record admissions by the offenders.

22 March 2019

53. On 22 March 2019, conversations in the Burwood house between Mr Robertson, Mr Hopkinson and Mr Erdogan were captured by a surveillance device in accordance with a warrant that had been issued by a Justice of this Court. The following was recorded:

“a.   ROBERTSON acknowledged that they had seen [Mr A] in relation to money.

b.   HOPKINSON said that he tried to prevent [Mr X] and [Mr Y] from finding out about the murder, but that ERDOGAN told them about it.

c.   [Mr Y] asked ‘Why was the kid killed?’ [Mr Y] said that he was home but ‘Xaned out for 24 hours’ when the deceased was killed.

d.   HOPKINSON said that ERDOGAN ‘was holding a wrench’ and that [ERDOGAN] just comes upstairs, and then he was like, yeh we have to sort this dude out, just chucks him in my room’ and ‘we were just fuckin’ standin’ over the kid, just makin’ sure he wouldn’t run off, or attackin’ us, which he tried to do twice’ and ‘[ERDOGAN’S] violent, and he’s on drugs, you don’t know what these people do’. There was a ‘nasty cut on the kid’s head … and it was like, you know, too late to go back kinda thing’. HOPKINSON said ‘I was involved from the start’ and that he had ‘held hostage’.

e.   HOPKINSON said that ERDOGAN gave ROBERTSON the bat because ROBERTSON’s ‘a bit stronger in that area’. ROBERTSON said ‘I’ve already gone through the reasons of why’d I touch the bat, why’d I hold, why’d I bash his brains in, you know’. ROBERTSON said that he had already ‘got the worst crime under my belt … murder of a minor … how good is that’ and ‘technically the knife killed him if you wanna go off by that, he was always gonna fuckin’ die’. ROBERTSON said that the cricket bat was still in the lounge room, but that the knife was gone. ROBERTSON and HOPKINSON said that the knife got stuck in the deceased’s neck but that ‘we took it out’ and disposed of it in a plastic bag’.

f.   ROBERTSON referred to not having a ‘single speck of blood’ on him even though there was ‘blood all over that hall’.

g.   HOPKINSON stated that he ‘had scored’ the deceased’s Airpods. He also said that he had cut up the deceased’s bank card. He said that he still wanted to be friends with ERDOGAN. He said in relation to the murder ‘Well I’m involved in that too’. He joked about going to gaol and getting sleeve tattoos and joining the Mafia.

h.   ROBERTSON said that he could not remember where he and [Mr Z] had buried the body. He said that he still had ‘a shovel and hoe in the corner of my room’ which he had used to bury the deceased.

i.   [My X] and [Mr Y] said that they didn’t want to have anything more to do with ERDOGAN ‘because he’s a murderer’.

…”

54. On 23 March 2019, the following conversations were captured between occupants of the Burwood house:

“a.   HOPKINSON said that had cleaned the boots, which had been used for a ‘bit of stompin’ by ERDOGAN.

b.   HOPKINSON said that ERDOGAN had beaten the deceased over the head and arms with a wrench in HOPKINSON’s bedroom. He said that the deceased was dragged down the stairs, taken to the car and driven off to get some money. When they got back ERDOGAN hit the deceased ‘really hard’ causing a severely bleeding head wound ‘and then, I guess it was a point of no return so … me and [ROBERTSON] were already involved’.

c.   HOPKINSON said that ‘this kid was pretty much dying like really slow, so [ERDOGAN] and [ROBERTSON] came to the decision that [ROBERTSON] can swing the cricket bat low … [ROBERTSON] just tried killin’ as quick as possible and it didn’t work, so [ERDOGAN] had to cut the kids neck’. [ROBERTSON] tried to poke the fuckin’ knife in him, he wasn’t cutting, and [ERDOGAN] tried to finish it off, snapped the knife, and then got a second knife … because the first knife snapped.’ HOPKINSON later cleaned the knives and put them in a plastic bag and chucked them out.”

27 March 2019: the offenders’ arrests

55. The offenders were arrested on 27 March 2019. Mr Robertson initially agreed to being interviewed by police. He admitted that he was residing at the Burwood house on the day of the murder and that the deceased arrived there with Mr Erdogan the previous evening, being 11 March 2019. Mr Robertson then received a phone call from his solicitor and thereafter exercised his right to silence. He was charged with the murder of the deceased.

56. Mr Hopkinson agreed to being interviewed by police but declined to comment on the allegations. He did, however, state: “I wasn’t holding him” and “I wasn’t detaining him”, when asked questions about the deceased having been detained inside his bedroom.

57. Whilst in the police cells, Mr Robertson was covertly recorded, telling his father that he had been in his bedroom while Mr Erdogan was beating up the deceased. He admitted that he “put the body in the … Blue Mountains” and said he did so because he was scared of Mr Erdogan. Mr Robertson and Mr Hopkinson were placed in the same cell and discussed what they would say to the police.

58. Mr Erdogan was arrested on the same date. He was charged with murder. His trial has been set down to commence later this year.

The autopsy

59. On 19 March 2019, a post-mortem was conducted on the deceased’s body. The autopsy report stated that the cause of death was: “Sharp force injury of the neck and blunt force injury of the head”. The report noted 25 sharp force injuries to the neck, including to the larynx and right carotid artery. Blunt force injuries to the head were noted, including a fracture to the skull and nose. There were bruises on the surface of the brain and bleeding around it. Toxicology analyses detected a potentially toxic blood level of methylamphetamine and its metabolite amphetamine. The report concluded:

“Based on the autopsy finding, including the evaluation of the toxicology report, the cause of death is sharp force injury of the neck and blunt force injury of the head. While the sharp injuries of the neck are considered sufficient to cause death (specifically transection of the carotid artery), the extent and severity of the blunt force injuries of the head are significant enough to be considered contributory.”

Victim impact statements

60. Two victim impact statements, composed by the deceased’s father and one of the deceased’s sisters, were read at the sentence hearing by two relatives of the family. His father referred to his son having struggled with depression, only recently emerging from a long period of self-isolation, and his son’s caring, non-violent nature. He referred to his and his family’s enduring loss and their pain, exacerbated by the thought of his son’s suffering as he was slowly killed. He referred to the impact of his anguish on his health and well-being, and his enduring sense of hopelessness.

61. In her statement, the deceased’s sister referred to the deceased’s struggles in adolescence and the terrible impact of the family’s loss on them now, and for the rest of their lives. I reiterate that the Court offers its condolences to the deceased’s family for their terrible loss in shocking circumstances.

62. Following an application by the prosecution, pursuant to s 28(4) of the CSP Act as it then was, I consider it appropriate to take both statements into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community.

The offender Mr Robertson

63. Mr Robertson tendered a letter addressed to the Court and gave evidence. Reports of two forensic experts were tendered, in each of which a version of events provided by Mr Robertson was recorded, which Mr Robertson affirmed in evidence to be correct, with two exceptions, which he explained. The reports were by Jason Borkowski, forensic psychologist, who assessed Mr Robertson on 23 May 2019, and Dr Olav Nielssen, forensic psychiatrist, who interviewed Mr Robertson by Audio-Visual Link (“AVL”) in prison on 27 January 2021 and 17 February 2021. Dr Nielssen also gave evidence at the sentence hearing.

Evidence concerning Mr Robertson’s role in the offence

64. In evidence, Mr Robertson said that, when he was woken and told to get into the back seat of his car with the deceased and Mr Hopkinson, the deceased sat between them. I note that it is an agreed fact that:

“There is no evidence that [Mr Robertson] was aware of what had happened prior to him being woken or that he was told at that time of any of the detail of what had happened earlier.”

65. Mr Robertson was asked in evidence what knowledge he had by the time of his return:

“Q. By the time you came back from that trip in the car, did you have any knowledge of what was happening between [the] deceased and Mr Erdogan?

A. No.”

66. This proposition was the subject of scrutiny in cross-examination. Mr Robertson agreed, consistently with the agreed facts, that while he was in his car, he became aware that Mr Erdogan was suggesting that the deceased owed him $500, that the person Mr Erdogan contacted was unable to pay the debt and that Mr Erdogan said he would break the deceased’s arms.

67. Mr Robertson and Mr Z went back inside the Burwood house later than the other three, because they had difficulty shutting the garage door. He said that when he went inside, he saw the deceased “sitting in the hallway in his underwear” and Mr Erdogan “standing over him with the wrench”. Mr Erdogan said that: “he was going to keep him here until he brought some friends over to help him”. Mr Robertson did not respond and having been there for about 20 seconds, went to his bedroom, which was about 6m away on the same level, and sent the text messages to Mr X, “Because I feared that [Mr X’s] involvement would make him in danger ‑ to make him in danger to Erdogan”.

68. For about an hour after that, Mr Robertson did not hear anything other than loud music. He then “peered out into the hallway and saw Erdogan with the cricket bat”. The deceased was “[s]till sitting against the hallway wall”. Mr Robertson went into the hallway and said to Mr Erdogan: “What are you doing, why is he still here?” Mr Erdogan said that he was still waiting for his friends. He saw Mr Erdogan strike the deceased twice with the cricket bat, once on his left shoulder and once on his left leg.

69. Mr Robertson was in the corridor for about two minutes. He then retreated to his bedroom and “tried to process the situation that was happening in the hallway”. He concluded that Mr Erdogan “was extremely dangerous and that I did not want to be involved with him”. After 30 to 40 minutes, Mr Hopkinson came to his room and told him that the deceased was unconscious on the hallway floor. Mr Robertson left his bedroom and saw the deceased. About 5 to 10 minutes later, Mr Erdogan passed the cricket bat to him and told him what to do with it. He told Mr Erdogan: “‘no’, I didn’t want to do it”.

70. In cross-examination, Mr Robertson said that he hit the deceased with the cricket bat up to five times, and with an intention to kill him. He accepted that he had used force such that, if the deceased had not died from the knife wounds, the cricket bat blows that he inflicted on the deceased were sufficiently serious to kill him.

71. Mr Robertson obtained the knife from a block of knives in the kitchen. It was a sharp-pointed knife, “roughly 30cm in length”. The purpose for him getting it was to “finish [the deceased] off”.

72. Mr Robertson told Dr Nielssen:

“I am still not a hundred percent sure why I did what I did … I was asleep before half way through it I got woken up and brought into the room … I remember thinking I can’t do this and I handed the knife off.”

73. He told Dr Nielssen that en route to Jamison’s Lookout, he and Mr Z:

“… weren’t sure what we were going to do … [Mr Erdogan] said we were to go anywhere … he did not give us an exact location … [Mr Z] picked the location in the Blue Mountains.”

74. In relation to his comment made during the conversation on 22 March 2019 that he had “already got the worst crime under my belt … murder of a minor … how good is that?”, Mr Robertson said that:

“… at the time of that comment I was emotionally drained and the comments I made were somewhat sarcastic in reference to ‘How good is that? … It was a sarcastic comment to represent how devastated I felt of that incident.”

Mr Robertson’s fear of Mr Erdogan

75. Mr Robertson said that he met Mr Erdogan through Mr Z, about a month before the offence. He understood that Mr Erdogan was staying in the Burwood house until he could find accommodation elsewhere.

76. Dr Nielssen asked Mr Robertson about Mr Erdogan. Mr Robertson said:

“I still don’t really understand how he came over us so fast … he is not a bloke I would want to be friends with … I let him borrow the car once and I let him borrow it more and more and he would not bring it back in time … I kept telling him I was not happy … I just seemed to still let him use it.”

77. Mr Robertson said that Mr Erdogan would take methylamphetamine in his presence. He told Dr Nielssen:

“I was not happy with it … especially Ice … I have never touched the stuff … he was a bit of a maverick … always wanting to be a tough guy in front of everyone.”

78. Dr Nielssen elaborated in his report on what Mr Robertson had said about his relationship with Mr Erdogan:

“[Mr Robertson] said that they did not go out together, or take meals or socialise, and he said ‘I maybe chatted with him one on one a dozen times … I drove him because I knew he was using drugs and I did not want to let him drive on drugs … I drove him to the beach once and we walked a couple of laps for him to sober up a bit better’. He said ‘he always had interesting stories because he had a completely different lifestyle to me … I loved playing cricket and video games … he would tell me about fights he would get in … I knew he was a very bad influence … but he was not my friend to kick out of the house.’ When asked if he was afraid of [Mr Erdogan], he said ‘one hundred percent … he was very aggressive and had a standover nature … with his drug use he was very unpredictable.”

79. Mr Robertson said in evidence:

“[Mr Erdogan] would brag about dealing drugs and robbing people on the streets. He would also brag about debt collecting and that … I believe he was associated with criminal gangs.”

80. Mr Robertson said that made him feel “insecure and worried, scared”.

81. Mr Robertson said that when he first came out of his bedroom and saw Mr Erdogan strike the deceased with the cricket bat, it had the effect of confirming to him the claims made by Mr Erdogan, so that he “feared his retribution against other housemates … [and] he would turn that cricket bat on me”. Mr Robertson did not call the police, because he “believed that calling the police would make [Mr Erdogan] extremely angry and in effect turn his anger towards us”.

82. Mr Robertson explained in evidence why he complied with Mr Erdogan’s direction to hit the deceased’s head with the cricket bat:

“Q. What did he tell you to do?

A. He continued to pressure me by saying ‘You have to do it, you’re a better swinger than me’.

Q. When that was being said to you, what were you thinking?

A. I was extremely frightened of what [Mr Erdogan] had done to [the deceased] and I felt extremely pressured to doing what I did.

Q. Did you have any thoughts as to what would happen to you if you didn’t do it?

A. To me, it felt like he would turn his anger on me and would strike me with the cricket bat.

Q. What frame of mind was [Mr Erdogan] in when he was saying these things to you about using the bat?

A. He was very angry and agitated and, um, he spoke his words in a very strong and - a very strong manner.

Q. Had you ever come across a person like [Mr Erdogan] before?

A. No.

Q. You got the knife after the … it’s … with the cricket bat, is that correct?

A. Yes.

Q. What did you do with the knife?

A. I crouched over [the deceased] with the knife and pointed it in his direction.

Q. The facts say you poked it at him, is that accurate?

A. Yes.

Q. Did you touch him with the knife?

A. No.

Q. Were you thinking of something at that time, where were your thoughts when you were holding the knife, pointing it at him?

A. My resolve to use the knife faltered as I believe this act - I felt like this act was not in me, so to say.

Q. Was not what?

A. Within me.

Q. What did you do with the knife?

A. [Mr Erdogan] took the knife from me.

Q. Did you stay there?

A. No, I went to the dining room couch.

Q. Did you see what happened vis-a-vis the knife?

A. No.”

83. In cross-examination, Mr Robertson agreed that he could have called the police or requested in his text messages to Mr X that Mr X call the police. It was suggested to him that if he had sought help from Mr Hopkinson, Mr Y and Mr Z, they could have overpowered Mr Erdogan. He replied: “Possibly”. It was suggested that since it was daylight and they were in a residential neighbourhood, he could have run out of the house and sought assistance from neighbours. He replied:

“But I feel if I had left my room in any way and that possibly that [Mr Erdogan] would walk into that room, he would, in effect, be angry at one of the other house mates as he is not available to get to me.”

The effect of Xanax on Mr Robertson

84. Dr Nielssen reported:

“[Mr Robertson] said ‘I have never had Xanax before but I took a couple of tablets … I did not fall asleep and I drove on it … from [Mr Z’s] report I was swerving and not maintaining my lane’. He said that he did not know the dose of the tablets, but described the tablets as ‘oblong shaped’, consistent with the stronger 2 mg tablets. He said that he did not remember exactly when he took the tablets of alprazolam or why he took the medication, but said ‘I felt in a way pressured … the others took it so I did too’. He said ‘after I was extremely upset … my sense of time on that night is not very strong … I can only tell the time from the fact sheet’.”

85. In his report, Dr Nielssen said:

“Alprazolam is a potent anxiety relieving sedative, or benzodiazepine medication, which acts in a way that is similar to that of alcohol, although without as great an effect on motor function. The dose of 4 mg was very high for a person with no previous exposure or tolerance to that drug, which is reflected in his account of erratic driving on the way to bury [the deceased’s] body. The alprazolam taken on that day is likely to have affected Mr Robertson’s inhibition and reasoning ability in a similar way to the effect of alcohol, as well as his memory of the events.”

86. In evidence, Mr Robertson said that the reference in Dr Nielssen’s report to him taking two Xanax tablets was incorrect; he took one tablet of Xanax. His evidence was that when he came out of his room and saw Mr Erdogan hit the deceased with the cricket bat, Mr Erdogan gave both the deceased and Mr Robertson a Xanax tablet. When Mr Robertson went back into his bedroom, he took the tablet. He thought he consumed it approximately 30 or 40 minutes before he hit the deceased with the cricket bat. It was the first time in his life that he had taken Xanax and took it “Because I felt the Xanax at the time would calm me in the situation that was happening outside”.

87. Mr Robertson said:

“… the Xanax did affect me in some proportion … It made me drowsy and emotionally drained. It made me feel more like, how can I say, like an automaton or robot …”

88. Mr Robertson was asked in cross-examination:

“Q. By that are you saying that if someone says, ‘You’ve got to bash this person on the ground until he’s dead,’ that you had no - or the effect of the Xanax was such that you just acted without thinking?

A. Yes.

Q. You seriously suggest that in relation to trying to put someone out of their misery you just acted without thinking because of the Xanax?

A. Not just because of the Xanax but from the pressure of [Mr Erdogan] and the situation that we were in.

Q. Well, by pressure, so I’m understanding, one thing you’ve told us [Mr Erdogan] says was, in giving you the cricket bat, ‘You’re a better swinger than I am,’ is that right?

A. Yes.

Q. And you say that you felt under pressure to take the bat?

A. He would continue to say, you know, ‘You have to do it. You can do it.’”

89. In evidence, Dr Nielssen said that he thought that Mr Robertson taking the Xanax tablet “probably had a significant role”. One 2mg tablet was eight times the “original starting dose”. Dr Nielssen said that, assuming Mr Robertson had taken one 2mg tablet about 40 minutes before he hit the deceased with the cricket bat:

“… it was probably starting to take affect [sic] by the time of the offence … it would certainly have affected his judgment and his awareness of the situation and his capacity to foresee the consequences in my opinion.”

90. I accept Mr Robertson’s correction that he took one tablet of Xanax, because altering his account by reducing the number of tablets was against his interest. However, I note that Mr Robertson’s explanation to Dr Nielssen as to the reason and circumstances of him taking the Xanax tablet (“I felt in a way pressured … the others took it so I did too”) implies that he took it in the company of some of the others in the household, rather than it being given to him by Mr Erdogan and that Mr Erdogan and the deceased were the only other two who took Xanax at that time.

91. Accordingly, I accept that Mr Robertson took a Xanax tablet at some point before he struck the deceased to the head with the cricket bat, but I am not satisfied on the balance of probabilities that it was within an hour of that occurring. The basis of Dr Nielssen’s evidence as to the effects of Xanax on Mr Robertson at the time of the offence was based upon the history he took from Mr Robertson as to when he took the tablet. As I am not satisfied that Mr Robertson did take the tablet in that timeframe, I disregard that evidence as to its effect on Mr Robertson at that time.

Mr Robertson: Subjective considerations

Assistance

92. Mr Robertson’s assistance came about following a request by police on 10 December 2020. Mr Robertson has formally undertaken to give evidence in the trial of Mr Erdogan in accordance with a statement provided by him on 5 March 2021. Detective Sergeant Peter Ruskin has provided a statement to the effect that through no fault of Mr Robertson, police were unable to complete their interview of him on that date. I note that since the sentence hearing, Mr Robertson has provided a second statement, which is dated 13 April 2021. It appears that the relevance of Mr Robertson’s assistance is exclusively future, rather than past assistance, in respect of the forthcoming trial of Mr Erdogan.

93. Detective Ruskin stated that there was some material provided by Mr Robertson that was additional to what police already had and that there were some aspects of the offence about which Mr Robertson’s account was incomplete, although I note that Mr Robertson has given evidence at the sentence hearing that now covers one of those areas.

94. Detective Ruskin stated that Mr Robertson’s account appeared to be truthful. He stated that there are no indications at this stage that Mr Robertson would endure harsher custodial conditions as a consequence of his assistance and promised further assistance, or of threats against his family.

Mr Robertson’s background

95. The offender was born in Vietnam of a Vietnamese mother and Australian father. The family initially migrated to Malaysia and then to Australia, when the offender was aged 7 years. He completed year 12 in 2018 and was on a gap year in 2019, intending to commence university in 2020. He moved out of his parental home and into the Burwood house four months prior to the offence. His family lived in a one-bedroom unit, so that throughout his childhood, he slept on a couch.

96. Mr Robertson was a keen cricket player, playing grade cricket from 2017. He worked as a casual children’s cricket coach two or three days per week and received financial assistance from his parents. The credit card that he used at Bunnings and en route between the Burwood house and Jamison Lookout was intended for emergencies. His car was 18 years old and was an 18^th birthday present from his parents.

97. Mr Robertson denies a history of drug abuse, other than occasional experimental use of cannabis and trying MDMA and LSD on single occasions, and Xanax, which is considered elsewhere.

The evidence of Mr Robertson’s father

98. Dr Nielssen corroborated the family’s history with Mr Robertson’s father, who was a civil engineer by occupation, and obtained his views of his son, which were related in the report. Mr Robertson’s father gave evidence to similar effect. Speaking of his son, he said:

“… he wasn’t at the level of other similar kids. He’s always been a little bit, developed later, you know, slower than other children of his age … that is something my wife brought up … quite often. He would eventually catch up, but he was behind. [He] was actually born seven weeks premature. He spent the first ten or twelve days of his life in a humidicrib.

…

So situational awareness, which he had absolutely none of. We were … having to make all of his important decisions for him. And my wife quite often brought it up that he was, pointed out the fact that he was behind other children of his age, his school friends. [He] was … a very average student at school. He could have done a lot better but didn’t try hard enough. He was always leaving exams and the likes until the last minute … I sought comment from his cricket captain … he said he was much less [mature] than normal children of his age.”

99. Mr Robertson’s father referred to his son being told at age 12 by younger children that Santa Claus was not real. He said: “Oh, there was tears. There was ‘Mum and Dad, why didn’t you tell me?’”

100. With respect to his son’s nature, Mr Robertson’s father said:

“… every year at the parent teacher evenings my wife and I would get full on praise for the kind, gentle, polite, obedient child we had raised and how we should be proud of ourselves. And this was up until he left school. And that came from other parents as well who were having problematic teenagers at the same time that we couldn’t believe how [lucky] we were.”

101. He said that he and his wife opposed Mr Robertson leaving home to move into a share house, but he relented:

“We were initially against it … my wife … never agreed. I reluctantly gave my approval hoping that … moving into a shared house for six months, he signed a six months lease with four other computer geeks might make him grow up a little bit.”

Mr Robertson’s mental health

102. Mr Borkowski considered that Mr Robertson was of “at least average intelligence”. Mr Borkowski administered two diagnostic tools (The Psychiatric Diagnostic Screening Questionnaire (“PDSQ”) and the Millon Clinical Multiaxial Inventory-IV (“MCMI-IV”), which are designed to elicit any presenting symptoms of mental health concerns and assess Diagnostic and Statistical Manual of Mental Disorders (“DSM”) conditions.

103. Mr Borkowski said:

“Mr Robertson’s MCMI-IV profile is characterized by social propriety, dependency, and periodic efforts at assertiveness. His fear of losing emotional support often leads him to be overly compliant and obliging. He may be quite naïve about worldly matters, and his thinking may be immature. When faced with interpersonal tensions, he may seek signs of reassurance or try to maintain an air of buoyancy, as a way of denying disturbing thoughts.”

104. Mr Borkowski concluded:

“Mr Robertson reported being raised in a stable, prosocial family environment with no reported exposure to developmental vulnerabilities such as abuse, violence, substance misuse, criminality, neglect or poverty. It appears he was raised with, and adhered to, prosocial conventions such as family, educational, vocational and social responsibilities up until the time of the current offence. Based on Mr Robertson’s self-report there are no indications of prior emotional, cognitive or behavioural dysfunction in his developmental history.

Review of Mr Robertson’s psychological profile does however indicate the notable presence of Dependent Personality features. That is, he presents with a pervasive tendency to elicit praise, support, and acceptance from others, and he has a tendency [to] fear rejection and abandonment. Mr Robertson’s interpersonal style appears to be one in which he avoids conflict, and he is vigilant to signs of potential hostility and rejection and seeks to minimize the risk of incurring the indifference and disapproval of others. To enable this, he reports a pattern of being obliging, submissive and conciliatory to others, and self-sacrificing.

In regard to clinical symptoms, Mr Robertson reported anxiety related symptoms, mild depressive symptoms, and trauma related symptoms. Discussion of these with Mr Robertson suggests that his anxiety may stem from his aforementioned interpersonal style, and his concerns regarding rejection and abandonment, with his anxiety being further compounded by his current circumstances. It appears that the depressive and trauma related symptoms are related to his current legal circumstances, including the matter for which he is charged, and were thus not explored in detail.”

105. Dr Nielssen concluded:

“From the history elicited, the information provided by his father, a review of the documents and the observations made during the two interviews, Mr Robertson was not thought to meet the accepted criteria for any kind of developmental disorder, acquired brain injury, psychotic illness, including bipolar disorder or a current major depressive illness.”

106. Dr Nielssen said in evidence that he thought that Mr Borkowski’s finding of a clinical level of depression reflected Mr Robertson’s situation at that time of that interview, which was soon after his arrest.

Mr Robertson’s prior character

107. The offender has no prior criminal convictions and I note that there is no dispute that he was of prior good character.

Mr Robertson’s youth and immaturity

108. Mr Robertson was aged 18 years and 8 months at the time of the offence. Dr Nielssen concluded:

“I note the circumstances of the offence and Mr Robertson’s account of his relationship with Mr Erdogan, who he described as charismatic and also intimidating. The degree of influence Mr Erdogan held over Mr Robertson is evident in the way he was able to move into the house and stay as an unwelcome guest, and take over the use of his car. His father described Mr Robertson as immature compared to other children the same age, and as someone who had to work harder to make friends, which may have contributed to the influence of Mr Erdogan. Mr Borkowski noted the presence of dependent personality traits, which is consistent with Mr Robertson’s account of being unassertive and easily [influenced], which may also have added to his willingness to comply with the directions of Mr Erdogan. Although classified as adults, research shows that eighteen year olds as a group, especially eighteen year old males, have yet to develop the neurological maturity of adults, and hence ability to fully consider the potential consequences of their actions.

Mr Robertson was assessed as having a good long term prognosis and a low probability of further offences of any kind. He does not have a substance use disorder or a history of any kind of antisocial behaviour, apart from his experimentation with substances, which are the two main predictors of re-offending. He has matured considerably in the years he has spent in custody so far, expressed what seemed to be an appropriate degree of remorse and accepted responsibility for his role in the offence. He was not thought to have a psychiatric disorder associated with impaired decision making and impulse control, and would be expected to complete tertiary education and vocational training while in custody to prepare for life after his release.”

109. A footnote to the last sentence of the first excerpted paragraph above referred to two journal articles, one of which was tendered with Dr Nielssen’s report, titled “The influence of neuroscience on US Supreme Court decisions about adolescents’ criminal culpability”, by Laurence Steinberg, published in Nature Reviews Neuroscience, Vol 14, July 2013 at pp 513-518. However, the subject matter of that article was the interplay between emerging science as to the development of juvenile brains and decisions of the Supreme Court of the United States between 1988 and 2012, concerning the criminal culpability of juveniles aged 14 to 17. I assume that the other article was more relevant.

110. Dr Nielssen related aspects of Mr Robertson’s behaviour that indicated his immaturity:

“… lack of foresight in budgeting; lack of judgment in selection of peers; lack of planning, you know, moving into a place that he couldn’t afford the rent of, for example, a slightly impulsive action in doing so.”

Evidence of remorse

111. Mr Robertson’s letters expressed remorse and shame for his role and conduct in the death of the deceased and the grief and “irreparable damage” he had brought upon the deceased’s family and friends, as well as upon his own family.

112. Mr Robertson’s father said in evidence that during his conversations with his son in prison, he had discussed his feelings about the offence:

“He was ashamed for the role he had played, you know, for what he had done. He expressed … remorse, sadness for the victim and for the family and for what he had done to us and our family. And that was right from, that was obvious from the first time he called me from the police station.”

Mr Robertson’s progress in prison

113. In his evidence, the offender said he had been working in the prison system as a cleaner since April 2019 and had progressed to being a forensic cleaner. Between March 2020 and February 2021, he had participated in forensic cleaning involving a death in custody, 37 blood spills, 1562 suspected Covid-19 cleans and one actual Covid-19 case cleaning job.

114. Other prison responsibilities include supervision of a hygiene unit, which involved checking and keeping account of tools used by the unit, creating muster sheets and maintaining other documentation, such as work safety induction forms. He aspires to enrolling in a TAFE course in business studies and finance. Mr Robertson’s evidence was corroborated by the tender of selected Corrective Services case notes and certificates awarded to him during his period in custody.

Mr Robertson’s prospects of rehabilitation

115. Mr Robertson has the benefit of a stable upbringing. He continues to enjoy a close relationship with his parents, who remain supportive of him. By his cricketing endeavours, he has demonstrated a capacity to participate in prosocial sporting and community groups. He has the Higher School Certificate. He has no identified mental health or substance abuse issues and no criminal history.

116. I accept the evidence of Dr Nielssen and Mr Robertson’s father that Mr Robertson has matured through the experience of being in prison.

The offender Mr Hopkinson

117. Mr Hopkinson gave evidence at the sentence hearing. Material tendered on his behalf comprised an affidavit sworn by him; a report by Dr Katie Seidler, forensic psychologist, who assessed Mr Hopkinson by AVL on 11 March and 29 July 2020; a report by Dr Andrew Ellis, forensic psychiatrist, who interviewed him by AVL on 20 November 2020 and 22 January 2021; written testimonials by his father and by the head of physical education at his high school, Ms Troy Kelly; and some documentary material concerning his time in custody.

Mr Hopkinson’s role in the offence

118. As noted, Mr Hopkinson’s criminal responsibility was based on constructive murder, the foundational offence being specially aggravated kidnapping pursuant to s 86 of the Crimes Act, which relevantly provided as follows:

“86   Kidnapping

(1)   Basic offence A person who takes or detains a person, without the person’s consent:

(a)   with the intention of holding the person to ransom, or

(a1)   with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage,

is liable to imprisonment for 14 years.

(2)   Aggravated offence A person is guilty of an offence under this subsection if:

(a)   the person commits an offence under subsection (1) in the company of another person or persons, or

(b)   the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

(3)   Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1):

(a)   in the company of another person or persons, and

(b)   at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

…

detaining a person includes causing the person to remain where he or she is.

…

taking a person includes causing the person to accompany a person and causing the person to be taken.”

119. Mr Hopkinson’s role in the commission of the offence was summarised in the agreed facts as follows:

“I.   During the morning of 12 March 2019, the co-offender [Mr Erdogan] brought the deceased into [Mr Hopkinson’s] bedroom and accused him of taking money and [Mr Erdogan] assaulted the deceased with the wrench. [Mr Hopkinson] was present and witnessed the assault;

II.   At one time [Mr Hopkinson] was asked by [Mr Erdogan] to hold the wrench and prevent the deceased from leaving his bedroom, which [Mr Hopkinson] did. At this time [Mr Hopkinson] became a party and a participant in a joint criminal enterprise to detain the deceased for advantage whilst in company. In joining the criminal enterprise, he foresaw the possibility of the infliction of actual bodily harm upon the deceased during the detention;

III.   Later, [Mr Hopkinson] was present when [Mr Erdogan] went through the deceased’s wallet and took $10 which was given to [Mr Z];

IV.   [Mr Hopkinson] went in the car trip at [Mr Erdogan’s] request with others and the deceased, to prevent the deceased from leaving. [Mr Erdogan] took the wrench with him on the car trip to have it available to detain the deceased;

V.   The purpose of the car trip was to obtain money from an associate of the deceased, however it was unsuccessful. During the trip [Mr Erdogan] said on a phone call in [Mr Hopkinson’s] presence ‘I’ll have to get his arms broken then’, referring to the deceased;

VI.   Upon return to the house the deceased was observed standing in his underpants with [Mr Erdogan] holding the wrench over him and [Mr Hopkinson] standing behind [Mr Erdogan];

VII.   [Mr Hopkinson] sat on the stairs and watched as the co-offenders assaulted the deceased by beating him with a wrench and cricket bat and stabbing him with a knife, causing his death;

VIII. [Mr Hopkinson] did not strike the deceased at any time during the events on 12 March 2019;

IX.   [Mr Hopkinson] did not take any or sufficient steps to affect a withdrawal from the joint criminal enterprise of specially aggravated kidnapping which was ongoing at the time the murder was committed;

X.   [Mr Hopkinson] assisted in the clean-up and disposal of the body, including assisting in placing the body in the car boot. [Mr Hopkinson] also kept the deceased’s air pods and cut up the deceased’s credit card.”

Mr Hopkinson: Subjective considerations

Mr Hopkinson’s background

120. An account of Mr Hopkinson’s background reflecting the content of his affidavit, the history taken by the forensic experts and his father’s testimonial is to the following effect.

121. Mr Hopkinson was born in the Ukraine, as the only child from the union of his parents, his mother being Ukrainian and his father having grown up in New Zealand. Mr Hopkinson is unaware of his paternal family’s origins. His father had travelled to the Ukraine to start a relationship, following a courtship through correspondence. Mr Hopkinson’s mother had a son by an earlier relationship, who is 12 years older than Mr Hopkinson. His father also had a child by an earlier relationship, a daughter, who is about 20 years older than Mr Hopkinson. She was not part of their family unit, and he has had little contact with her.

122. Mr Hopkinson’s family came to Australia when he was about three years of age. They lived on a remote rural property in the South-West of Western Australia. His parents separated about a year after their arrival. There was no violence in his parents’ relationship. His mother took him and his brother to Perth, where they resided in a refuge for one or two years, then moved into government housing for another one or two years and after that into a government house where his mother continues to reside. His father continues to reside on the farm.

123. In his affidavit, Mr Hopkinson referred to his family life in Perth:

“My mother has had a few issues throughout her life. She has had a drinking problem … Mum would drink for a month straight and then be sober for a year. She would drink a litre of vodka each day when she drank … During those periods she was never sober, and would drink until she passed out and then start again when she woke up. I watched her do this from the age of 4. She didn’t use drugs.

My mother and brother would argue a lot. My brother would take prescription medication such as dexamphetamine, but it was not prescribed to him. He also smoked pot every day, at least 4 or 5 cones. I’d see him do this. He’d also drink at least 4 long-necks of beer every day. Mum and my brother would never drink together … She kicked my brother out of home when he was 25 and I was 12 … It was just mum and I then.

I had a pretty poor relationship with my brother. All contact with him was arguments. I believe we’ve sorted it now and I have regular phone contact with him from gaol ... I don’t believe my brother has worked since he left home ... Mum and my brother have seen psychologists a few times …

My Mum and Dad’s relationship was not good after they broke up. I’d rarely speak to Dad and would visit him on the farm once each year ... Dad remarried when I was in early High School. He has a 6-year-old daughter now. He still lives on the farm ...

I was very unhappy growing up. The main reasons were the daily arguments at home and living in poverty … From the age of 12 until I left home at 18 my mother was on a pension and did not work. We’d drive around and collect items from council clean-ups. When I was at school we did this every day. I’d spend hours in the backyard every day fixing up the stuff we got to sell on Gumtree ...

I think Mum must’ve got some sort of parenting payment, because when I was 18 she got less money. She was reliant on my income after I left school. I gave her two-thirds of my wage, but I would still have to help her fix up or sort the stuff she’d pick up from the council clean-ups.

Mum would tell me she’d get eviction notices for our government housing. I’d not see them. This would upset me. … I didn’t really tell the teachers at school how unhappy I was. I kept that to myself, but I’m sure they knew I had trouble at home. When mum told me we got eviction notices, I became distressed and I’m sure the teachers noticed.”

124. In an email to Mr Hopkinson’s solicitor dated 17 February 2020, Ms Kelly said:

“I did teach him at some stage, but generally had dealings with him for non-participation and avoidance of doing Physical Education. PE was not one of [Mr Hopkinson’s] favourite subjects and he found many of the activities difficult and he definitely was not the sporty type person. [He] only had one or two friends and found it difficult in making friends. [He] often was by himself or with one of his friends … [He] was not a leader and would follow what his friend did such as truanting or avoiding some classes. [He] was never a behaviour problem and was a quiet person when spoken to. [He] lacked confidence in many areas and was very introverted but never in trouble at school for any other reason. He did not like being asked to demonstrate or to be captain of a team. These things were very difficult for him and he tended to follow what his friends did.

[Mr Hopkinson] lived at home with his mother who didn’t speak English and I know they struggled financially and were having struggles with life which did affect [him]. He didn’t have much family support. … [His] father was estranged from the family and didn’t appear to have much to do with [him].”

125. Dr Seidler noted that, culturally, Mr Hopkinson identifies as Australian and does not have active contact with his extended family in the Ukraine and in New Zealand, and does not know them well. He is bilingual, his first language being Russian, as a consequence of his mother only speaking Russian.

126. Of Mr Hopkinson’s relationship with his mother, Dr Seidler said:

“Mr. Hopkinson stated that his mother is a ‘very caring person’, but it seems that the boundaries between mother and son are porous with Mr. Hopkinson often being over- responsible and a somewhat parentified child, from a young age. To this end, Mr. Hopkinson told me that his mother has ‘had a lot of struggles in her life’, which includes finding it difficult to maintain a romantic relationship, encountering regular financial hardship and having a conflictual relationship with her eldest son, Mr. Hopkinson’s half- brother. Mr. Hopkinson conceded that his mother has coped poorly over the years and he claimed that she would often discuss her problems and emotional experiences with him.

…

In addition to the … alcohol binges, Mr. Hopkinson stated that his mother used to ‘break down a lot’, which he explained meant that his mother was often tearful and distressed and would complain to him about how hard her life was. Mr. Hopkinson added that he used to argue often with his mother and it seems that this discord was often instigated by his mother. Specifically, Mr. Hopkinson told me that it seemed like sometimes ‘she just wanted to argue’, and she would ‘pick at anything’, for reasons that he does not understand. As such, Mr. Hopkinson stated that whilst he loves his mother, she is a difficult person to be with and to get along with and therefore, he does not believe it is good for him to live with her. Mr. Hopkinson noted that he maintains regular contact with his mother but he does not discuss personal matters with her, nor does he feel he can rely on her for support.

… Mr. Hopkinson did not have a consistent or significant male caregiver during his childhood or adolescence.

…

Overall, Mr. Hopkinson reflected on his childhood as having been ‘miserable’, which he attributed to the ‘whole situation’ in which he was raised. To this end, Mr. Hopkinson reflected that he was not able to be a child and enjoy his childhood and he felt as if his experience was very different to his peers. Mr. Hopkinson denied a history of abuse …”

127. In his affidavit, Mr Hopkinson stated that in year 11 he did a 12-month TAFE course in car mechanics. After completing school, he found employment as a bicycle technician. He met Mr X in 2016 through playing computer games online and later met Mr Robertson, Mr Y and Mr Z through the same game. They all became friends.

128. When Mr Hopkinson came to Sydney for a week in 2018 he stayed with Mr X and Mr X’s parents and met the other three, face to face. He posed the idea of them all living together. Mr Y found the Burwood house and they applied for the lease. In November 2018, he returned to Sydney and moved in.

129. In evidence, Mr Hopkinson said that although he had employment in Perth, he took the opportunity to move away from his family. It was the first time he had lived away from his mother. In Sydney, he worked a few shifts for Mr X’s family’s cleaning business and did three weeks’ work for a labour hire company. He tried to join the Army Reserve but was unsuccessful because of a poor maths mark in high school. At the time of the offence he was waiting to do an intensive TAFE course in maths to overcome that barrier to him joining the Army.

130. Mr Hopkinson said:

“It felt really good to move in with friends in Sydney. Before the murder, I would say I had the best four months of my life. This was because I was not living with my mother and having someone argue with me every day.”

Mr Hopkinson’s relationship with Mr Erdogan

131. In his affidavit, Mr Hopkinson said that he was introduced to Mr Erdogan about two months before the offence by Mr Z. He continued:

“When I first met [Mr Erdogan] he had recently been released from jail and was on bail. He told us he just came from an incident at his drug dealer’s home and showed us a knife wound he received. He’d frequently tell us about violent crime-related stories which I, at the time, rarely believed.

The day after I met [Mr Erdogan] he showed up at my home on [Mr Z’s] invitation to stay for a while as he had nowhere else to stay.

I got along fine with [Mr Erdogan]. I would chat briefly with him every couple of days. [Mr Erdogan] would almost always be on the drug [methylamphetamine]. [Mr Erdogan] had told us many stories that included violence, drug deals, firearms and fraud. [Mr Z] confirmed them by hanging out with some of [Mr Erdogan’s] friends. [Mr Erdogan] had even claimed he committed murder before. Towards the end of our friendship, [Mr Erdogan] became very aggressive to … my housemates [Mr Z] and [Mr X]. He was demanding money for drugs and there were general arguments about [Mr Erdogan] leeching off us. It was not until after the murder that I realised [Mr Erdogan] was a very dangerous and unstable individual. I thought [Mr Erdogan] was my friend, but he is just a manipulative criminal.”

132. In evidence, Mr Hopkinson was asked by his counsel why it was that in the conversation captured on 22 March 2019, he said that he still wanted to be friends with Mr Erdogan. He said:

“A. I was going through a very difficult time with my family. I was struggling to decide what I wanted to do with my relationship, and as I said before, I believed [Mr Erdogan’s] friendship was very important and I didn’t really have anyone else so I felt like I had to hold on to that friendship.

Q. What about the fact that this was now ten days after the death of [the deceased]?

A. It was how I usually deal with my issues. I made excuses or just drink to really focus on something else to not think about the event and it’s a habit I’ve had my whole life.”

133. As to his current view of Mr Erdogan, Mr Hopkinson said: “I feel he’s very manipulative. I find he’s very dangerous and unstable”. Mr Hopkinson said that he came to that view “after a few days in custody”.

134. In her report, Dr Seidler said:

“… he described being afraid of [Mr Erdogan], whom Mr. Hopkinson described as a scary and intimidating figure, which further reinforced his compliance.

On reflection, Mr. Hopkinson stated that he ‘didn’t feel (he) had much choice’. In hindsight, he commented that he should have contacted the authorities or acted to intervene somehow but he was ‘scared’.”

Mr Hopkinson’s use of drugs and alcohol

135. Dr Ellis took the following history:

“He began drinking alcohol at the age of 16. This progressed to daily drinking from the age of 18. He would drink more than five shots of spirits and 4 to 5 bottles of beer. He would experience blackouts where he could not remember events that occurred while drinking. He would experience withdrawal symptoms from alcohol in the morning. He said that his alcohol use impacted on his friendships and his family relations. He said that he experienced significant mood changes drinking alcohol feeling angry, sad and crying. Alcohol did not impact on his employment or physical health.

He reported using cannabis from the age of 16, at the most on a monthly basis. He said that he smoked crystal methamphetamine ‘ice’ on three occasions.

He denied the use of other stimulants, heroin, hallucinogens, solvent inhalants, anabolic steroids or synthetic drugs. He took nonprescribed alprazolam (benzodiazepine sedative) on one occasion.”

Mr Hopkinson’s mental health generally

136. Dr Seidler noted that Mr Hopkinson’s father was not a significant attachment figure in his upbringing, and diagnosed him as having developed an attachment disturbance:

“31.   Psychosocial History: Socially, Mr. Hopkinson described himself as an extravert who enjoys the company of others. He claimed to be someone who makes friends easily and once Mr. Hopkinson has formed a relationship with someone, he claimed to be ‘very loyal’, including going out of his way to do things for his friends. He reported to trust his friends ‘completely’ and claimed that he will usually ‘bend over backwards’ for the people he considers to be friends. To this end, it seems he can be quite naïve and this, no doubt, has its foundation in the history of attachment disturbance for Mr. Hopkinson. Within this context, Mr. Hopkinson acknowledged he has been let down by others he considered to be friends, especially some of his co-offenders and therefore, Mr. Hopkinson conceded that he does have some difficulties trusting others now. Even so, Mr. Hopkinson told me that he is generally comfortable socially and he reported to be able to understand and engage with others easily.”

137. Dr Seidler concluded:

“50.   In sum, it is my opinion that Mr. Hopkinson has suffered with chronic depressed mood, which would likely meet criteria for Persistent Depressive Disorder and it is possible that this has worsened at times to constitute a Major Depressive Episode. However, Mr. Hopkinson has little insight into this because it has been his existence for so long and coupled with his youth and naivety, Mr. Hopkinson has seemingly failed to recognise the severity of his mental health concerns.

…

55.   … [Mr Hopkinson] has no criminal history and does not impress as inherently antisocial, either by way of attitudes or lifestyle.

56.   Mr. Hopkinson has experienced some notable challenges in his young life. These include international migration and cultural dislocation, familial background, parental alcohol abuse, exposure to both social disadvantage and poverty. However, perhaps more importantly, Mr. Hopkinson’s attachment history is disturbed. His father was largely absent and disinterested whilst Mr. Hopkinson’s mother was apparently not a particularly involved parent, as well as being someone who, as a parent, exercised poor boundaries, leaving her son over-responsible, parentified and at times, seemingly traumatised and distressed.

57.   Mr. Hopkinson saw school as a means of ‘escape’ from his home life but he did not do well academically and was disengaged and invested little effort. To his credit, Mr. Hopkinson completed his secondary education and had begun to work towards a future in a trade but generally, he was hopeless, lacking in direction and motivation and suffering with poor self-esteem. Within this context, Mr. Hopkinson began abusing alcohol and he also seemingly over-invested in his friendships, including naively trusting those people, who had been a source of acceptance and pleasure for Mr. Hopkinson in an otherwise bleak and uninspiring lifestyle.

58.   Within the context of the aforementioned developmental challenges, it is my opinion that Mr. Hopkinson developed depression, which was chronic and so pervasive that he did not realise his experience was abnormal. This has continued to affect him and certainly also contributed to Mr. Hopkinson’s substance abuse, unstructured personal routine in recent times and his over-investment in his friendships.

59   Mr. Hopkinson has been charged with a very serious offence that follows the death of a young person under very violent circumstances. He does not present with an apparent history of violence or aggression nor is there evidence of entrenched antisociality in this case. Therefore, taking into account the information available to me, it is my opinion that Mr. Hopkinson’s offending arose out of poor decision making and naivety, coupled with the effects of substance abuse and negative peer influence superimposed on a background that left him vulnerable.

138. Dr Ellis concluded:

“[Mr Hopkinson] would be considered to meet criteria for an alcohol use disorder. He describes heavy and salient use of alcohol in the years leading up to the index offence. He reports withdrawal symptoms and given the amounts he was drinking tolerance to the use of alcohol. He reports significant impact on his mental health and relationship function from drinking. There is a significant reported family history of substance use problems, potentially indicating a genetic liability to addiction. This disorder is currently in remission in a controlled environment.

He does not currently present with symptoms of a mood disorder. It is likely that historically he has experienced a substance induced mood disorder (alcohol induced mood disorder with depressive symptoms) in the period prior to the offending and continued in his early incarceration. With abstinence from alcohol and a healthy physical and mental routine his mood is currently in euthymic (ordinary) range.

As he is relatively young it would be improper to conclude a personality disorder at this point on cross sectional review. Given his significant childhood adversity, report of passivity within relationships [and] deferring to others the consideration of avoidant and dependent personality traits are clinically relevant. He is immature developmentally, however he shows current responsible work ethic and it may be that with time and guidance that his personality will mature appropriately. There is no evidence for an antisocial personality disorder or intellectual disability.”

Mr Hopkinson’s mental health at the time of the offence

139. Dr Ellis said:

“[Mr Hopkinson] said that he was not drinking or taking drugs on the day of the offence. He was drinking heavily regularly in the months prior. He had taken one alprazolam tablet that day. He said that he felt tired as an effect of taking the alprazolam tablet.

…

On the day of the offence [Mr Hopkinson] was not drinking, however reports heavy drinking regularly in the months prior. In this regard it is not likely that he was intoxicated, however his mood was likely depressed. Dr Seidler who saw him earlier in custody felt he was depressed, and he reported feeling depressed in periods where he was drinking. While he would have been aware of the effects of alcohol intoxication, given his young age and no prior clinical intervention it is not likely he would have been aware of the effect of alcohol on mood generally. Persistent drinking after the offence when he did not report the events was likely an effort to avoid thinking about it, and he would have been aware of this effect of alcohol.

His use of alprazolam before the offence is not likely to have had [a] significant effect. This medication is short-acting, and while it would make him tired it is not likely to have significantly impacted his behaviour over the course of the day.

His depressed mood likely coarsened his dependent personality traits, rendering him more likely to revert to passive responses within relationships. He would have been less able to reflect on his decision making than usual. It is likely he was more prone to deferring to others owing to this long-term interactional style. The description of his behaviour is consistent with following the direction of others. He reports being frightened of the co-offender, and given the description of his behaviour, this fear appears justified. The depressed mood and personality style would have impaired impulsive judgement, however would not have totally deprived him of the ability to control his actions, or to know that they were wrong.”

140. I note the contradiction in Dr Ellis’ report as to whether Mr Hopkinson consumed alcohol or drugs on the day of the offence. In evidence, Mr Hopkinson corrected Dr Ellis’ history, saying that in fact he had taken the alprazolam tablet two hours before he went to sleep the night before, being 11 March 2019.

Mr Hopkinson’s prior character

141. Mr Hopkinson has no prior criminal convictions. There is no dispute that he was of prior good character.

Mr Hopkinson’s youth and immaturity

142. Mr Hopkinson was aged 18 years and 10 months at the time of the offence. I note the evidence of Dr Seidler and Dr Ellis as to his immaturity.

Evidence of remorse

143. In his evidence as to why he became involved in the offence, Mr Hopkinson said:

“Originally I thought it was a simple matter of getting money back for one of my house mates. I made the wrong decision but I didn’t foresee the victim being killed.”

144. As to how he feels about the offence, Mr Hopkinson said:

“I feel a lot of shame and I hate myself for what I let happen. It’s shame I’m going to carry for the rest of my life. … I feel like if I’d done something, anything, I alone may have prevented his death.”

145. In his affidavit, Mr Hopkinson said:

“I met [the deceased] the night before the crime. I was very happy to meet him as I did not know anyone in New South Wales apart from my housemates and [Mr Erdogan]. [The deceased] and I seemed to have a few things in common including our interest in computer games which he invited me to play with him sometime. [The deceased] and [Mr Erdogan] seemed to be close friends. [Mr Erdogan] had introduced us to [the deceased] and told us he was a drug dealer. [The deceased] also boasted about his excessive drug use.

In no way did [the deceased] deserve to die, and I cannot begin to imagine what his family is going through. I regret the actions that I took and accept that I did them of my own free will and know that I had a choice. I also regret my inaction and I am ashamed of my cowardice.”

146. Dr Seidler noted:

“Mr. Hopkinson added that ‘not doing anything was the wrong thing to do’ and he expressed seemingly genuine and appropriate regret and remorse for his actions and in particular, for the victim, whom he claimed undeservedly lost his life.”

147. Dr Ellis reported:

“[Mr Hopkinson] says that he was taken by surprise by the events and he does not know why he ‘just froze’. He said that ‘I should have done something’.

He said that he did not want the victim to die. He said that he took a passive approach and just wanted the events to be over with. He said that he feels shame and if he had done something the victim probably would not have died. He said that passivity was a common reaction in his life to events around him, but was not an excuse for not intervening.”

148. Dr Ellis formed the following view as to Mr Hopkinson’s remorse:

“He displayed reasonable insight into his actions and motivations at the time of the offence … Although there is no specific psychiatric expertise that can determine whether statements of remorse are genuine, his presentation is consistent with having accepted his involvement in the crime and taking steps to rehabilitate himself. He did not make any statements that indicate a lack of remorse.”

Mr Hopkinson’s progress in prison

149. Between October 2019 and January 2021, Mr Hopkinson worked in ground maintenance in the South Coast Correctional Centre, at Nowra. He lost that position as punishment for getting a tattoo, as well as receiving a six-week good behaviour bond. After two weeks, he commenced work in the kitchen, working 9am to 2pm Monday to Friday, until shortly before the sentence hearing, when he was transferred to another correctional centre. At his request, he was placed on protection from March 2019 to December 2020, and on an offender association alert to avoid contact with Mr Erdogan. He completed a course in warehousing operations in March 2020.

150. In his affidavit, Mr Hopkinson said that in the two years he had been in custody, he had four contact visits, being two visits by his mother and one each from his brother and father. The last contact visit was from his mother, in December 2019, although he has daily phone calls with his brother, twice-weekly phone calls with his mother and weekly calls from his father.

151. Mr Hopkinson said that before the offence, he was not a reader. In prison, he has read as much as he can in the Russian language, he has attempted to teach himself German and has become an avid reader in the English language, attaching to his affidavit a list of books he has read whilst in custody. In evidence, he said that he felt that through his reading he had learned to assume responsibility for his actions rather than blame others, which had caused him to reflect further on his responsibility for the offence. He feels motivated to pursue what educational opportunities he can access.

Prospects of rehabilitation

152. Dr Seidler recommended certain therapies for Mr Hopkinson whilst in custody and upon his eventual release:

“60.   Recommendations: As reported earlier, Mr. Hopkinson hails from Western Australia and he expressed a desire to return to his home state. However, this may be problematic given the State-based parole jurisdiction in this country. Following, I will make recommendations about how Mr. Hopkinson’s needs may be addressed within specific domains and local services may be sought to address these in either State.

61.   Firstly, it is my opinion that Mr. Hopkinson presents with long-standing mental health concerns that require psychological treatment. Specifically, he would gain from intervention designed to increase Mr. Hopkinson’s insight into his functioning and vulnerabilities, in addition to the consequences of his developmental experiences. Further to this, Mr. Hopkinson would gain from improving his symptom management and his assertiveness skills. His self-esteem is also fragile and needs improvement. It may be that Mr. Hopkinson would be eligible to have this treatment supported by the Government’s Medicare initiative and to this end, he will need a referral and a Care Plan from his General Practitioner. The Australian Psychological Society may assist in sourcing a local clinician for Mr. Hopkinson.

62.   In addition to psychological therapy, it is suggested that Mr. Hopkinson would gain from a referral to a psychiatrist to assess his need for psychotropic medication. This may commence whilst he is in prison through Justice Health.

63.   Mr. Hopkinson has a history of alcohol abuse and some drug abuse and whilst he does not appear to have been dependent, his use was problematic and I would argue that he would gain from harm minimisation intervention to assist Mr. Hopkinson in managing his substance abuse safely. This would also aim to increase his insight into the antecedents to his substance use and abuse.

64.   Mr. Hopkinson has some positive future goals but he has struggled to establish a productive lifestyle to date, despite his intentions to do so. He is only young and would gain from employment support and training to increase Mr. Hopkinson’s capacity to enter and remain in the workforce. Further to this, he should be supported to develop a prosocial and supportive peer network that will limit his exposure to antisocial influences.”

153. Dr Ellis proposed that Mr Hopkinson be required to undertake an educational program in the adverse effects of alcohol, testing for alcohol consumption on his release back into the community, psychotherapy directed at understanding early relationships and current relationships and further general education and vocational training whilst in custody.

154. Dr Ellis said:

“[Mr Hopkinson] presents a generally positive profile for rehabilitation. There is no evidence of a major mental disorder, antisocial personality disorder and no prior offending. There is no evidence of institutional offending. He presents currently with a good work ethic and is positive towards improving his situation. He does not present with any attitudes supporting violence, crime or negative towards supervision. Should he engage in the interventions described above to counter the risk factors of his substance use, employment history and potential lesser problems of personality dysfunction then his overall prognosis would be considered good.”

Mr Robertson: Submissions on objective seriousness

155. The Crown submitted that the objective seriousness of the offence with respect to Mr Robertson was higher than mid-range. It was submitted on behalf of Mr Robertson that his role in the offence fell just below the mid-range of objective seriousness, primarily because of his youth, immaturity and fear of Mr Erdogan, to the point of constituting non-exculpatory duress. As to subjective factors, reliance was placed on his prior good character, absence of a criminal record and the absence of any planning or premeditation.

Mr Hopkinson: submissions on objective seriousness

156. The Crown submitted that the objective seriousness of the offence was “at least mid-range”, taking into account the serious circumstances of the foundational offence, being the period of time that the deceased was detained and that Mr Hopkinson remained involved in that detention throughout, in spite of the assaults that he witnessed and the deceased’s suffering.

157. Counsel for Mr Hopkinson noted that the mental element was one that satisfies aggravated kidnapping and that there was no allegation of him inflicting bodily injury upon the deceased.

158. Counsel highlighted four aspects to be considered in the formulation of Mr Hopkinson’s sentence. These were, firstly, Mr Hopkinson’s vulnerability. Superimposed on that was his depressed mood, his immaturity and the influence of Mr Erdogan.

159. In relation to Mr Hopkinson’s vulnerability, counsel relied upon Dr Seidler’s report, in particular, paras (31), (56) and (59), which are extracted at [136] and [137] above. In her report, Dr Seidler referred to Mr Hopkinson’s depressed mood at paras (50) and (58), extracted at [137] above. Dr Ellis referred to it in a passage extracted at [139], above. Dr Ellis referred to Mr Hopkinson’s immaturity developmentally in a passage from his report extracted at [138] above.

160. In relation to the influence of Mr Erdogan, counsel described him as the “odd one out” in a household of “computer geeks” with a “completely different character”. It was submitted that fear of Mr Erdogan was a factor in him not acting to prevent the murder. However, his offence is not one of failing to intervene to prevent the killing, it is joining the kidnapping. Referring to the passage from Dr Seidler’s report extracted at [134] above, counsel noted that Dr Seidler reported that Mr Hopkinson’s fear of Mr Erdogan “reinforced” Mr Hopkinson’s compliance with his wishes. In relation to Mr Hopkinson’s post-offence behaviour, counsel suggested that it was relevant that his family was interstate and his only support in New South Wales were the relationships that he had with the other occupants of the Burwood house, and that he was drinking heavily.

Consideration: both offenders

161. There are some issues and findings that are common to both offenders. The offences committed by Mr Robertson and Mr Hopkinson are difficult to comprehend. The deceased was a young man who they did not know and who had done them no harm. The offenders were of prior good character, with no hint in their background that they were capable in the case of Mr Hopkinson, of the heartlessness involved in the foundational offence of specially aggravated kidnapping, or in Mr Robertson’s case, the savagery with which he became a direct perpetrator of the offence of murder. As I note below in relation to each of them, I am satisfied that the offences would not have occurred, had it not been for Mr Erdogan.

162. It is relevant to recall that the offenders are being sentenced in the context that neither was the principal perpetrator of the offence. The person who is alleged to be that person awaits trial. For the purposes of the sentencing of these offenders, I note that the parties agree that the role of Mr Erdogan in the commission of the offence was significantly greater than that of Mr Robertson and Mr Hopkinson, and that Mr Robertson’s role was greater than that of Mr Hopkinson. I make those findings.

163. In formulating the sentences for both offenders, I find that no sentence other than imprisonment is appropriate: s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”).

164. I am mindful of the maximum penalty for the offence of murder. In relation to the standard non-parole period of 25 years, which applies because the victim was a juvenile, I note the terms of ss 54A(2) and 54B(2) of the CSP Act. I also note the observations of Matthews AJ in R v Milat & Klein [2012] NSWSC 634 at [126] as to how the standard non-parole period of 25 years for the crime of murder where the victim was aged 17 years and the offenders were aged 18 years, might be taken into account. Although the age gap of the offenders and the victim is slightly longer in terms of the number of months in this case, I respectfully adopt her Honour’s reasoning to the effect that the rationale for extending the standard non-parole period from 20 years to 25 years is “significantly reduced” in such circumstances.

165. I note that while youth is a factor that generally mitigates an offender’s culpability, it is less so with serious offending (see Simpson J (as her Honour then was) in JM v The Queen (2012) 223 A Crim R 55; [2012] NSWCCA 83 at [108]), and that retribution and deterrence cannot give way entirely or even substantially to the interests of rehabilitation.

166. In relation to both offenders, I find special circumstances pursuant to s 44(2) of the CSP Act, on the basis of their youth, the sentences being their first time in custody and the benefit to them and the community of being subject to supervision for an extended period when they are released from custody. In relation to Mr Hopkinson, I particularly note the need for treatment and services identified by Dr Seidler and Dr Ellis; the allowance for him in relation to special circumstances will be greater than for Mr Robertson.

Consideration: Mr Robertson

The objective seriousness of the offence

167. Mr Robertson knew nothing of what had occurred with the deceased prior to being woken shortly before 1pm when he was told to get into the back seat of his car, to guard the deceased. When they returned to the house, Mr Robertson saw Mr Erdogan standing over the deceased with a wrench, the deceased by then having undressed down to his underpants. Mr Robertson heard Mr Erdogan say that he was waiting for others to arrive to assist him. Mr Robertson went straight to his room and stayed there, until he emerged after about 30 or 40 minutes. He saw Mr Erdogan strike the deceased with a cricket bat and return to his room. Mr Hopkinson came to his room about an hour later and told him that the deceased was unconscious. He left his room, and between 5 and 10 minutes later, he hit the deceased multiple times to the head with a cricket bat, with the intention of killing him. He then stood by while Mr Erdogan stomped on the deceased’s head and stabbed him 25 times to the neck, cutting his right carotid artery.

168. The deceased was unconscious and therefore helpless in the face of Mr Robertson’s attack upon him. As a grade cricketer, it is a reasonable inference that Mr Robertson would have brought considerable force to bear in his use of the cricket bat, which in these circumstances was a weapon for the purposes of s 21A(2)(c) of the CSP Act. Mr Robertson was aware of the wounds upon the deceased’s body from the assaults earlier that day and his observations of Mr Erdogan striking the deceased an hour earlier, that the deceased had endured many hours of assault, before Mr Robertson attempted to kill him with the cricket bat. His text messages to his housemate between 1:36pm and 1:40pm disclosed an awareness by him that further assaults were likely.

169. The deceased had done nothing at all to Mr Robertson to warrant any form of attack. It was committed in company with Mr Erdogan: s 21A(2)(e) of the CSP Act.

170. All of Mr Robertson’s actions that day, including him guarding the deceased in the back seat of the car as they drove around at about 1pm and his role in the killing of the deceased late that afternoon, were at Mr Erdogan’s behest. I am satisfied on the balance of probabilities that, if it were not for Mr Erdogan demanding that Mr Robertson carry out those actions, he would not have done them. As to why he did so, I am also satisfied to the requisite standard that one of the reasons that Mr Robertson obeyed Mr Erdogan’s demands was because he feared what Mr Erdogan might do to him if he refused. Mr Robertson had not been exposed to that degree of physical violence previously, and no doubt the situation was challenging to him. However, I am satisfied that there were avenues of escape that were open to him, such as simply leaving the house.

171. Mr Robertson’s taking of some of the deceased’s possessions, assisting with the clean-up and his central role in burying the deceased’s body bespeak an ongoing commitment to that criminal act, rather than taking steps to repudiate that behaviour.

167. Although it is a matter of judicial notice that a person of 18 years of age typically has not yet achieved maturity, I am satisfied that Mr Robertson was unusually immature for his age, and that it also was of central relevance to his acquiescence to Mr Erdogan, and thus his commission of the offence.

168. Accordingly, in assessing the objective seriousness of the offence, I take into account Mr Robertson’s youth, his exceptional immaturity and the degree of non-exculpatory duress that he experienced, all of which were relevant to his offending, in determining the objective seriousness of the offence: see Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247 in relation to duress and mental condition. In relation to youth, see BM v R [2019] NSWCCA 223, at [16].

169. Taking into account all relevant factors, I find that that the objective seriousness of the offence is above mid-range and is significantly higher than that of Mr Hopkinson.

Relevant factors on sentence

175. In relation to the offence, I note that Mr Robertson was not a party to any planning of the offence. His role in the deceased’s detention is confined to the time that the deceased was in Mr Robertson’s car that day.

176. I find that Mr Robertson’s prospects of rehabilitation are high and that he is unlikely to re-offend. He was of prior good character and was involved in prosocial sporting activities. He has no prior convictions and a supportive family. He has no mental health issues or significant alcohol or drug issues. Statements of Mr Robertson’s prior good character were tendered, written by three adults who have known Mr Robertson over his formative years through school and his local community, attesting to his and his family’s good character and decency. A statement by Mr Robertson’s paternal grandmother was also tendered. All four statements express shock and disbelief at the offence that Mr Robertson committed, given the person who they had known.

177. I accept that his early plea of guilty and his offer of future assistance are evidence of genuine remorse. I accept the other forms of evidence to that effect, particularly his sworn evidence at the sentence hearing.

178. In relation to assistance, I note the provisions of s 23 of the CSP Act. I find Mr Robertson’s undertaking to give future assistance to be reasonably significant and useful in view of Mr Erdogan’s plea of not guilty and his pending trial, at which Mr Robertson is to be a witness for the prosecution. Although Mr Robertson is not in present danger in prison, it is premature to assume that he will remain safe in the prison system. I take judicial notice of the ever-present danger of serious violence faced by prisoners who assist the authorities by giving evidence against a co-offender and that over the course of Mr Robertson’s time served in custody, that danger may well warrant isolation and protection, which are usually harsher conditions of imprisonment.

179. I am mindful that, pursuant to s 23(3) of the CSP Act, a lesser sentence resulting from an acknowledgement of assistance must not be unreasonably disproportionate to the nature and circumstances of the offence.

180. I find that Mr Robertson’s undertaking to give future assistance warrants a reduction of his sentence of 20 per cent.

181. A combined discount of 45 per cent for assistance and the early plea of guilty is to be applied to a starting point sentence of 24 years, which results in a sentence of 13 years and 2 months. I impose a non-parole period of 9 years.

Consideration: Mr Hopkinson

The objective seriousness of the offence

182. In R v Jacobs; R v Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 Wood CJ at CL said, at [332]:

“Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Cole JA and Sperling J, No 60306 of 1994, 3 April 1995). Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender’s conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93.”

183. In this case, the role of the offender in the foundational offence was to detain the deceased. That commenced at a time between 12:04pm and 12:59pm when Mr Erdogan left him in his bedroom holding the wrench to guard the deceased, Mr Hopkinson having witnessed Mr Erdogan assault the deceased with the wrench, injuring his arms and head.

184. It continued when from around 1pm he and Mr Robertson sat with the deceased in the back seat of the car while Mr Erdogan drove in search of someone who would pay the amount that Mr Erdogan demanded from the deceased.

185. The continuing presence of Mr Hopkinson in close proximity to Mr Erdogan from the time of their return to the Burwood house until the deceased was killed at around 5pm, constructively contributed to the deceased’s detention in circumstances in which the deceased’s vulnerability and suffering would have been obvious to Mr Hopkinson.

186. As I have noted in relation to Mr Robertson’s actions that day, Mr Hopkinson’s criminal actions also were exclusively at the behest of Mr Erdogan. I am satisfied on the balance of probabilities that, if it were not for Mr Erdogan demanding that Mr Hopkinson carry out those actions, he would not have done them.

187. Mr Hopkinson’s assistance with the clean-up and his retention of the deceased’s Air Pods were indicative of him not seriously questioning his criminal behaviour before his arrest. In evidence, he admitted it was only after he was taken into custody that he realised the true nature of Mr Erdogan.

188. As to why Mr Hopkinson acquiesced to Mr Erdogan’s demands, I note his youth and Dr Seidler’s observations as to his vulnerability arising from the trust he naïvely placed in those he regarded as “friends” which was at least partly a product of his attachment history and which I accept led to him unduly following the directions of Mr Erdogan. I note that Dr Seidler’s observations accorded with Dr Ellis’ assessment that Mr Hopkinson is developmentally immature and that he displayed avoidant and dependent personality traits. I also accept Dr Seidler’s diagnosis of a persistent depressive disorder and Dr Ellis’ view that at the relevant time he was experiencing a depressed mood, and its impact on his acquiescence.

189. I do not find that, at the time of the offence, Mr Hopkinson had an inordinate fear of Mr Erdogan and therefore I do not find there to be any element of duress. I accept that through witnessing the assaults by Mr Erdogan on the deceased he became aware of Mr Erdogan’s potential for violence, but I do not accept that it became a motivating force for him to follow Mr Erdogan’s instructions. Rather, as I have noted, Mr Hopkinson looked up to Mr Erdogan and in an unthinking, uncritical way was content to play a role in the deceased’s detention.

190. Having regard to the purpose and length of the detention, the continuing nature of the assaults and humiliation throughout that time and Mr Hopkinson’s presence with Mr Erdogan for most of it, and also taking into account Mr Hopkinson’s features that were relevant to the objective seriousness of the offence, I find that the objective seriousness of the offence is mid-range.

Relevant factors on sentence

191. Mr Hopkinson’s background is less fortunate than that of Mr Robertson. He does not have the advantage of substantial family support and has developed an alcohol use disorder.

192. I find that Mr Hopkinson is genuinely remorseful.

193. Mr Hopkinson has demonstrated in his time in prison a capacity for self-reflection and a commitment to education in a broad sense and generally to being a responsible, contributing member of the community. He has no prior convictions and was of good character. I regard his prospects of rehabilitation as being very good. I note the recommendations made by Dr Seidler and Dr Ellis for his treatment in custody and in the community. If the authorities are able to provide those services, I would regard his prospects of rehabilitation as being further enhanced.

194. A discount of 25 per cent for Mr Hopkinson’s early plea of guilty is to be applied to a starting point sentence of 17 years, resulting in a total sentence of 12 years and 9 months. I impose a non-parole period of 8 years and 3 months.

The sentences

195. The sentences of both offenders are backdated to commence on 27 March 2019, being the date that they were arrested and went into custody.

Sentence: Mr Robertson

196. Mr Robertson, for the offence of the murder of Justin Tsang, I sentence you to imprisonment for a period of 13 years and 2 months, to commence on 27 March 2019 and to expire on 26 May 2032. I impose a non-parole period of 9 years. You will become eligible for parole on 26 March 2028.

Sentence: Mr Hopkinson

197. Mr Hopkinson, for the offence of the murder of Justin Tsang, I sentence you to imprisonment for a period of 12 years and 9 months, to commence on 27 March 2019 and to expire on 26 December 2031. I impose a non-parole period of 8 years and 3 months. You will become eligible for parole on 26 June 2027.

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Decision last updated: 08 September 2022