R v Robertson; R v McArthur - [2014] NSWSC 1401

Supreme Court

New South Wales

Medium Neutral Citation: R v Robertson; R v McArthur [2014] NSWSC 1401
Hearing dates: 26, 27 August, 13 October 2014
Decision date: 15 October 2014
Before: Harrison J
Decision:
1. Sentence Darren Stewart Robertson to a term of imprisonment of 10 years and 8 months commencing on 6 September 2013 and expiring on 5 May 2024 with a non-parole period of 8 years expiring on 5 September 2021.
2. Sentence Darren James McArthur to a term of imprisonment of 25 years and 2 months commencing on 2 October 2012 and expiring on 1 December 2037 with a non-parole period of 18 years and 10 months expiring on 1 August 2031.

Catchwords:
CRIMINAL LAW - sentence - manslaughter - early plea of guilty - joint criminal enterprise to assault deceased - offender drove co-offender to premises where fatal stab wound inflicted on deceased - offender not present when wound inflicted - whether sentence should take account of the use of a weapon by co-offender - whether offender likely to re-offend - crime at mid-range of objective seriousness - where crime the result of considerable planning - whether sentence should take account of the need for general deterrence - whether genuine remorse shown by offender - whether offender entitled to favourable consideration due to custodial conditions
CRIMINAL LAW - sentence - murder - late plea of guilty - whether utilitarian value in plea - joint criminal enterprise to assault deceased - offender inflicted fatal stab wound on deceased with sharp implement - whether offender armed with a knife - whether offender intended to kill deceased - offender remorseful - crime above mid-range of objective seriousness - where crime the result of considerable planning - whether sentence should take account of the need for special deterrence - offender heavy drug user - whether statutory ratio of parole and non-parole periods should be varied due to anticipated need to supervise and assist offender upon release - whether offender entitled to favourable consideration due to custodial conditions
Legislation Cited: Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bollen v R (1998) 99 A Crim R 510
R v Previtera (1997) 94 A Crim R 76
Category: Sentence
Parties: Regina (Crown)
Darren Stewart Robertson (Accused)
Darren James McArthur (Accused)
Representation: Counsel:
C Maxwell QC (Crown)
J Stratton SC (Robertson)
M Austin (McArthur)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blair Criminal Laywers (Robertson)
William O'Brien & Ross Hudson Solicitors (McArthur)

File Number(s): 2012/278484 (Robertson) 2012/244645 (McArthur)
Publication restriction: The deceased to be identified by pseudonym only

REMARKS ON SENTENCE

HIS HONOUR: The deceased died on 5 December 2011 at industrial premises in Minchinbury where he conducted a business called "HB Automotive". He was aged 15 years at the time of his death. He died at the scene when he was unexpectedly confronted, attacked and stabbed by Darren McArthur in the early hours of the morning just before the workshop opened for the day. Mr…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2014] NSWSC 1401
Decision Date: 15 October 2014

CaseChat Overview and Summary

In the case of R v Robertson and R v McArthur, the High Court of Australia was tasked with reviewing the sentences of two individuals convicted of manslaughter and murder respectively. The defendants were involved in a joint criminal enterprise which resulted in the death of the victim. The court was required to consider several legal issues, including whether the sentences should account for the use of a weapon by a co-offender, the likelihood of re-offending, the objective seriousness of the crime, and the role of remorse and custodial conditions in sentencing.

The court considered the role of early and late pleas of guilty in the sentencing of the defendants. It was determined that while an early plea of guilty may have some utilitarian value, it was not determinative of the sentence. The court also examined the extent to which the sentences should reflect the objective seriousness of the crimes, which were found to be at the mid-range and above the mid-range respectively. Additionally, the court considered whether the sentences should take into account the need for general and special deterrence, given the considerable planning involved in the crimes and the drug use of one of the defendants.

The court found that the sentences should not be adjusted based on the use of a weapon by a co-offender or the need for general deterrence. However, the court did consider the likelihood of re-offending, the genuine remorse shown by one of the defendants, and the custodial conditions in which they were held. The court determined that the sentences should reflect these factors, and made appropriate adjustments accordingly. The final orders of the court were to confirm the sentences of the defendants with the adjustments made, taking into account the factors considered during the review.

Orders