R v Hopkinson; R v Robertson

1. [1]

   LEEMING JA: I agree with Rothman J, whose judgment I have had the advantage of reading in draft, that this Crown appeal should be dismissed. What follows assumes familiarity with the judgment at first instance R v Robertson; R v Hopkinson [2021] NSWSC 861 (which is not presently available publicly in light of the imminent trial of the co-offender S), the factual background and the parties’ submissions as summarised by Rothman J.

2. [2]

   Ground 1 was that the judge had failed to take into account the statutory aggravating factors of gratuitous cruelty and (in the case of Mr Robertson) the actual use of a weapon, in s 21A(2)(f) and (c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This ground is not made out. His Honour gave reserved, carefully written reasons, which set out in detail the horrendous circumstances culminating in the murder of the deceased, including Mr Robertson’s use of the cricket bat. Further, in the concluding sections of those reasons, under the headings “Consideration: both offenders” and “Consideration: Mr Robertson”, his Honour referred at [161] to the heartlessness and savagery of the offending, and returned at [168] to Mr Robertson’s use of the bat and the considerable force he would have brought to bear as a grade cricketer. His Honour did not expressly mention s 21A(2)(c) or (f). Nor was it necessary for him to do so. The issue of whether they were taken into account is determined as a matter of substance. It is trite that a sentencing judge need not refer explicitly to each of the s 21A factors as though running through some type of check-list: JB v The Queen [2012] NSWCCA 12 at [67].

3. [3]

   Ground 2 was that the primary judge’s adoption of what had been said in R v Milat & Klein [2012] NSWSC 634 at [126], to the effect that “the rationale for extending the standard non-parole period from 20 years to 25 years is significantly reduced” where the victim was aged 17 and the offenders aged 18, was erroneous. On appeal, R A Hulme J, with whom Bathurst CJ and Hall J agreed, had said that the acceptance by the judge that the 25 year standard non-parole period had reduced significance was “doubtful”, adding that “The statutory provision of a period of 25 years where a victim is under the age of 18 applies to all victims under that age”: Milat v R; Klein v R [2014] NSWCCA 29 at [164].

4. [4]

   It is easy to infer how the reference of which the Crown complains may have come about. The written submissions advanced by Mr Hopkinson gave prominence to the passage of the reasons (submissions dated 8 March 2021, para 3) without referring to the disapproval of the same passage by the Court of Criminal Appeal. So far as I can see, his Honour was never taken to that disapproval, although it is now at the forefront of the Crown’s submissions in this Court. It is a matter of regret that the criticism of what was said at first instance in Milat & Klein was not drawn to his Honour’s attention. To be clear, no party made any suggestion that the omission to direct his Honour to appellate criticism of the passage relied on was anything other than inadvertent, and I proceed on that basis.

5. [5]

   Unpalatably blunt as it may seem, the effect of statute is that the standard non-parole period for the murder of a person aged 17 years and 11 months is 5 years longer than the standard non-parole period for the murder of a person aged 18 years and 1 month. The effect of that provision would be greatest if the same offender murdered two persons, one just younger than 18, the other just older than 18, at the same time. As presently advised, it would be inevitable that a significantly greater sentence would be imposed for the murder of the younger victim, and that would be so irrespective of the age of the offender, because the other matters both objective and subjective which informed the exercise of the sentencing discretion would be equal. That is not to say that other aggravating or militating factors have greater or lesser weight depending on the offender’s age, including if the offender is only slightly older than 18 and the victim only slightly younger. However that is not because of some diminished effect of the standard non-parole period, but rather because of the impact of those other factors such as the offender’s youth.

6. [6]

   The Crown submitted that it was to be inferred that his Honour relied on what had been said at first instance in Milat & Klein by reason of the fact that the undiscounted starting points for the sentences fell below the 25 year standard non-parole period despite the findings of objective seriousness being at the mid-range and above mid-range. I am doubtful of this. His Honour said that he was sentencing based on a standard non-parole period of 25 years, twice (at [2] and [4]), and nowhere suggested the contrary, and I am unpersuaded that his Honour should be taken as somehow diminishing the force of the applicable standard non-parole period which was expressly said to apply. It is unnecessary to take the matter any further, because the Crown came very close to conceding that this Court would not intervene if this were the only point made out: “I would acknowledge too that this ground alone wouldn’t - the Court would be unlikely to intervene unless we can make out the manifest excess ground”. That concession (or near concession) was rightly made.

7. [7]

   The Crown confirmed that the main ground was ground 3, that the sentences were manifestly inadequate. It is necessary, in order for this ground to be established, to conclude that “there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. This reflects the concluding passage in the formulation of principle in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. The proposition that this Court could intervene and impose a different and less severe sentence in the absence of error on the face of the reasons and even if none could be inferred from the manifest excess of the sentence imposed was rejected in Leach v The Queen [2008] NSWCCA 73; 183 A Crim R 1 at [6]; see also Kane v R [2021] NSWCCA 250 at [10]-[13].

8. [8]

   I am unpersuaded that it is to be inferred that there has been misapplication of principle. The sentences are towards the bottom of the permissible range, but the subsidiary role played by both young men compared to Mr S coupled with their youth and background made undiscounted starting points of 17 and 24 years available. It follows that I am unable to accept the Crown’s submission that “disproportionate weight” had been given to the offenders’ youth. I confess that I was initially concerned at the discount given for the assistance proffered by Mr Robertson, and indeed the largest portion of the Crown’s submissions in support of this ground amount to a challenge to the attribution of 20% for this element. This complaint is, strictly speaking, outside the ground of appeal. Patent error is distinct from manifest inadequacy by definition, and it shows confusion of thought to incorporate patent errors as sub-grounds or aspects of a ground of manifest inadequacy or manifest excess, as has repeatedly been observed: see for example Hurmz v R [2017] NSWCCA 235 at [20] and Darcy v R [2019] NSWCCA 159 at [30]-[31]. But it is best to deal with the Crown’s submission on its merits. I think it was open to the primary judge to conclude that the assistance to the Crown case of Mr Robertson’s testimony was significant, in circumstances where (a) no real attempt was made to identify by reference to likely issues at trial or existing evidentiary gaps what role his evidence would perform, and (b) as emphasised by Mr Adams in oral submissions, the police made the approach for assistance, rather than Mr Robertson making an offer, and the police did so relatively late in the day (some two years after the men were taken into custody). Both considerations sustain an inference that the assistance was regarded as valuable.

9. [9]

   One final consideration supports the conclusion that neither sentence was manifestly inadequate. It arises out of the fact that sentence was imposed on the applicants before Mr S was tried for the same murder. Consistently with the factual basis upon which sentence was imposed, there must be a possibility that Mr S will be found guilty, and it is also possible that if, as the applicants contended, he is the person most centrally involved in the killing, he will receive a substantially greater sentence. Questions of parity would be at the forefront of the exercise of discretion if all men were sentenced at the same time, and I see no reason why, in a case such as the present, it would have been inappropriate to bear in mind the possibility of the sentence to be imposed in that event upon Mr S in assessing where the sentences upon Mr Hopkinson and Mr Robertson should lie. The sentencing judge did not mention this aspect, but to my mind the need for there to be room for the possibility of a substantially more severe sentence to be imposed upon Mr S, in the event he is found guilty, lends further support to the conclusion that the sentences are not manifestly inadequate.

10. [10]

    For those reasons, I would dismiss the appeal, without reaching residual discretion.

11. [11]

    ROTHMAN J: On 15 July 2021, Chris Hopkinson and Joel Steven Robertson were sentenced in the Supreme Court by Justice Ierace for the offence of murder. The Crown now appeals against the sentences imposed by the learned sentencing judge alleging that the sentences are inadequate.

12. [12]

    As stated, each of the respondents was sentenced for the offence of murder. Each of the respondents had pleaded guilty to the offence in the Local Court.

13. [13]

    The offence of murder carries a maximum penalty of life imprisonment and has, where the age of the victim is under 18 years, a prescribed standard non-parole period of 25 years. Where the victim is over 18 years, the standard non-parole period is 20 years.

14. [14]

    The respondent, Mr Hopkinson, was sentenced to imprisonment of 12 years and 9 months, commencing 27 March 2019 and expiring on 26 December 2031, with a non-parole period of 8 years and 3 months, expiring on 26 June 2027. The respondent, Mr Robertson, was sentenced to imprisonment for 13 years and 2 months, commencing on 27 March 2019 and expiring on 26 May 2032, with a non-parole period of 9 years, expiring on 26 March 2028.

15. [15]

    There are non-publication orders in place which prohibit the publication of the names of the next of kin of the deceased; any photographs tendered during the sentence proceedings; the contents of exhibits D, E, F, and G tendered in the Robertson proceeding; as well as non-publication orders over the sentence proceedings and judgments, until the conclusion of the trial of a co-accused, Mr S, which is listed for hearing commencing 11 April 2022.

Grounds of appeal

1. [16]

   The Crown relies on three grounds of appeal, which are in the following terms:

   1. (1)

      Ground 1: the learned sentencing judge failed to take into account material considerations, namely statutory factors of aggravation;

   2. (2)

      Ground 2: the sentencing judge acted upon a wrong principle or took into account an irrelevant matter in respect of the applicable standard non-parole period; and,

   3. (3)

      Ground 3: the sentences imposed were unreasonable or plainly unjust in that they were otherwise manifestly inadequate.

2. [17]

   Pursuant to the terms of s 5D of the Criminal Appeal Act 1912 (NSW), the Crown has a right of appeal, which may be exercised by the Attorney General or the Director of Public Prosecutions filing an appeal against the sentence imposed. Leave is not required.

Facts

1. [18]

   As earlier stated, each of the respondents pleaded guilty to the murder with which he was charged. The victim was 17 years old at the time of his death and his name, together with anything that would identify him is — as a result of legislation governing victims under the age of 18 — prohibited from publication.

2. [19]

   Each of the respondents agreed to facts on the basis of which he was sentenced. The agreed facts in each matter are substantially the same. The primary differences are associated with material relevant to a further co-accused, Mr S, which was included only for the respondent Mr Robertson, and are consequently omitted in relation to Mr Hopkinson.

3. [20]

   The Crown case at the sentencing proceeding was that the conduct, causing/leading to the death of the victim, was led by the other co-accused, Mr S. As earlier stated, Mr S is the subject of trial commencing shortly and, as a consequence, further non-publication orders have been issued until the conclusion of his trial.

4. [21]

   At the time of the murder, Mr S had lived with the two respondents for about a month. Mr S was a known user and supplier of methylamphetamine. The deceased was involved in supplying drugs and was also a user of methylamphetamine. The deceased was a casual acquaintance of Mr S but was otherwise unknown to the respondents until the evening of the offending.

5. [22]

   The deceased was detained over a period of approximately 8 hours on 12 March 2019 at the respondents’ residence. At the conclusion of the detention, he was killed. The effect of the detention was that the deceased was not only detained; he was humiliated, beaten with a wrench and a cricket bat, his head was stomped on, and he was stabbed twice. The deceased died of sharp force injuries to his neck, one of which transected the carotid artery.

6. [23]

   It is unnecessary to repeat all of the facts to which one or other of the respondents agreed. The reported reasons for judgment and sentence remarks of Ierace J contain a full summary of the Agreed Facts. It is sufficient to set out the following relevant elements in relation to each of the respondents’ involvement.

7. [24]

   The liability of Mr Hopkinson for murder was based upon constructive murder arising from his involvement in a specially aggravated detain for advantage offence. Mr Hopkinson became a party to a joint criminal enterprise to detain the deceased in company and in circumstances of special aggravation. By his plea, the respondent accepted that he had foresight of the infliction of actual bodily harm, such as to give rise to liability by way of extended joint criminal enterprise. [1]

8. [25]

   Once Mr S had detained the deceased, Mr Hopkinson watched while Mr S hit the deceased with a wrench, causing serious injuries to the deceased’s arms and head, while all were in Mr Hopkinson’s bedroom. Mr S left the bedroom and, as he left, he gave Mr Hopkinson the wrench to prevent the deceased from leaving the bedroom.

9. [26]

   Mr Hopkinson later admitted that he was “making sure he wouldn’t run off, or attacking us, which he tried to do twice”. [2] Mr Hopkinson told his associates that “there was a nasty cut on the kid’s head … and it was like, you know, too late to go back kinda thing”. [3]

10. [27]

    Mr Hopkinson remained in the bedroom, where Mr S returned and tortured the deceased. Mr Hopkinson then sat flanking the deceased in a car, driven by Mr S, and, in so doing, prevented the deceased from escaping. Mr S threatened the deceased during this trip. Once they had returned to the residence, Mr Hopkinson, watched as Mr S made the deceased strip to his underwear, while Mr S held the wrench over the deceased’s head.

11. [28]

    Mr Hopkinson watched as Mr S and Mr Robertson repeatedly assaulted the deceased with a wrench and a cricket bat. These assaults inflicted blunt force trauma to the deceased’s head and limbs. Mr S then stomped on the deceased’s head while wearing steel-toe boots.

12. [29]

    Mr Hopkinson assisted in the cleaning of the apartment and the disposal of the knife that ultimately inflicted the fatal injury. Mr Hopkinson stole possessions of the deceased and cut up his bankcard.

13. [30]

    The liability of the respondent, Mr Robertson, was based upon his use of a cricket bat to hit the deceased a number of times to the head, with an intention to kill. [4] There are various other relevant elements of Mr Robertson’s involvement.

14. [31]

    Mr Robertson was initially asleep in the premises which he and Mr Hopkinson occupied. Mr Robertson was awoken by another party following the detention and initial torture of the deceased. Mr Robertson was, at that point in time, not aware of the situation that was occurring elsewhere on the premises.

15. [32]

    Mr Robertson then sat flanking the deceased in a car, driven by Mr S — the other side, as earlier stated, being flanked by Mr Hopkinson — preventing the deceased from escaping. During the course of the trip, Mr S threatened the deceased.

16. [33]

    Mr Robertson watched Mr S repeatedly assault the deceased with a wrench and a cricket bat. Mr Robertson then used the cricket bat to hit the deceased a number of times to the head, with an admitted intention to kill. It seems that the reason that the cricket bat was passed to Mr Robertson was that Mr Robertson was a grade cricketer and was thought to be better able to hit the deceased with greater force.

17. [34]

    Later, Mr Robertson admitted that he had tried to “put the guy out of his misery”. [5] He said he had swung the bat to try to knock the deceased unconscious. Mr Robertson told his associates that he hit the deceased because he was afraid Mr S would kill him if he did not.

18. [35]

    Mr Robertson then obtained a knife and used it to “poke” at the deceased’s neck, without cutting it. [6] Mr S grabbed the knife from Mr Robertson and attempted to kill the deceased. The knife blade, however, broke off in the deceased’s neck. Mr S then obtained another knife and used it to stab the deceased in the neck, which caused the deceased’s death.

19. [36]

    Mr Robertson stole possessions of the deceased once the deceased had died. He then assisted to clean up the apartment and, with Mr Hopkinson and another accomplice, decided to bury the deceased’s body. Mr Robertson purchased items from Bunnings to assist with the disposal of the deceased’s body and, with the said accomplice, drove to the Blue Mountains and disposed of the deceased’s body in a shallow grave.

20. [37]

    Mr Hopkinson and Mr Robertson were lawfully recorded on covert surveillance devices discussing their parts in the offence. They were arrested on 27 March 2019. Each gave a limited interview to police.

Principles on Crown appeal

1. [38]

   The Crown is granted a right of appeal and leave to appeal is unnecessary. Nevertheless, the capacity of the Crown to appeal a sentence is far more recent than the right of appeal generally, which, itself, is a statutory creature.

2. [39]

   Crown appeals have traditionally been considered exceptional and ought to be exercised by the Crown rarely. Notwithstanding the statement of principle that the power to appeal against the sentence imposed should be exercised rarely, once exercised, it is the Court’s function to determine the matter in accordance with law.

3. [40]

   In exercising that function, the Court is no longer entitled to take into account, in the exercise of its discretion, the principle of double jeopardy. [7] Even though the Court is not entitled to take into account the principles of double jeopardy, the Court does have a residual discretion not to intervene; either to correct a sentence that is considered to contain an identifiable material error, or that is considered to be manifestly inadequate. The onus rests upon the Crown to persuade the Court that the appealable errors upon which it relies, and the circumstances of the appeal, are such as to negate the exercise of the residual discretion to dismiss the appeal, notwithstanding error. [8]

4. [41]

   As the plurality of the High Court made clear in in CMB, supra,

5. [42]

   As to the onus of proof, the plurality judgment commented:

6. [43]

   The High Court in CMB was dealing with the effect of an Ellis discount. [11] Nevertheless, the approach in relation to an allowance for assistance, not covered by the principle associated with “unknown guilt”, should be the same.

7. [44]

   I do not, by the immediately preceding comment, suggest that the reduction for assistance would be at the same level as that contemplated in Ellis, but the approach by the Court to an allowance for discount must be the same. Both are the application of a lesser penalty as a consequence of the provisions of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

8. [45]

   The High Court, in CMB, discussed the operation of s 23(3) of the Crimes (Sentencing Procedure) Act, which permits a lesser penalty imposed as a consequence of the assistance provided to law enforcement authority, but it “must not be unreasonably disproportionate to the nature and circumstances of the offence”. As the High Court emphasised, a sentence can be “disproportionate”; it cannot be “unreasonably disproportionate”. [12]

9. [46]

   As the plurality said:

10. [47]

    The issue for this Court on appeal, to the extent that the Court is required to deal with manifest inadequacy, is not whether it regarded the sentence as unreasonably disproportionate to the nature and circumstances of the offence as committed, but whether, in the exercise of the learned sentencing judge’s discretion, it was open to him to determine that the sentence imposed was not unreasonably disproportionate to the nature and circumstances of the offence. [14]

Remarks on Sentence

1. [48]

   As earlier stated, the remarks on sentence are the subject of a judgment which will be published at the conclusion of the trial in relation to Mr S and will be available at the same time that these reasons for judgment. As a consequence, it is unnecessary to recite, at length, the terms of the learned sentencing judge’s remarks. It is necessary to summarise, in general terms, those aspects that reveal the reasoning in his judgment.

2. [49]

   As earlier stated, the basis upon which each of the respondents was guilty of the offence of murder was joint criminal enterprise. In the case of Mr Hopkinson, it was an extended joint criminal enterprise. Those aspects of the facts have been recited already.

3. [50]

   His Honour concluded that the same considerations of objective seriousness were common to each of the respondents. The sentencing judge found that Mr Robertson’s involvement, and consequently the objective seriousness of his offending, was greater than that of Mr Hopkinson. [15]

4. [51]

   His Honour concluded that Mr Robertson’s offending was above the mid-range of objective seriousness. [16] By comparison, his Honour found that the objective seriousness of Mr Hopkinson for the offence in question was at mid-range. [17]

5. [52]

   His Honour was satisfied that the offences would not have been committed and would not have occurred, were it not for the conduct and presence of Mr S. [18] Importantly, given the grounds of appeal, his Honour stated that the slight age gap between the victim and the respondents significantly reduced the rationale for the increased standard non-parole period.

6. [53]

   It is necessary to recite that aspect of his Honour’s comments, which is in the following terms:

7. [54]

   His Honour’s refers to ss 54A, and 54B of the Crimes (Sentencing Procedure) Act, which, relevantly, are in the following terms:

8. [55]

   Pursuant to the terms of s 44(2) of the Crimes (Sentencing Procedure) Act, his Honour found special circumstances for each of the respondents based upon their youth; that this was their first time in custody; and the benefit to them and the community of an extended period of supervision on parole in each case. His Honour particularly noted the need for treatment in relation to Mr Hopkinson. [20]

9. [56]

   Apart from the foregoing, there are separate aspects relating to Mr Hopkinson and Mr Robertson’s subjective considerations/circumstances that require summary.

10. [57]

    In relation to Mr Hopkinson, the sentencing judge noted his age at the time of the offence being 18 years and 10 months. His Honour noted Mr Hopkinson’s background and, in particular, that his family immigrated to Perth from the Ukraine when he was approximately three and that his parents separated a year later. Mr Hopkinson’s mother had alcohol dependence issues. His Honour excerpted a passage from the report of Dr Seidler as to his relationship with his mother, in which Dr Seidler described Mr Hopkinson’s childhood as “parentified”, [21] being, as I understand the expression, a reference to the imposition on Mr Hopkinson of responsibility beyond that which would be appropriate for a person of young age, and which denied him a childhood. Mr Hopkinson described his childhood as “miserable”, [22] but he was not the subject of abuse.

11. [58]

    Mr Hopkinson was assessed by psychiatrists as having chronic depressed mood into which Mr Hopkinson had little insight. He also suffered from dependent attachment disorders and alcohol abuse disorders. [23]

12. [59]

    Mr Hopkinson moved from Perth to Sydney to live with Mr Robertson and three other associates, whom he had met playing online video games. Mr Hopkinson gave evidence that he was introduced to Mr S about two months before the offence.

13. [60]

    The sentencing judge considered that Mr Hopkinson, did not have an “inordinate fear” of Mr S at the time of the offence and there was no element of duress. Rather, taking account of the psychiatrist’s evidence regarding Mr Hopkinson’s attachment history, it is more likely that Mr Hopkinson looked up to Mr S in an “unthinking, uncritical way”. [24]

14. [61]

    His Honour found that Mr Hopkinson is genuinely remorseful. [25] Further, his Honour regarded Mr Hopkinson’s prospects of rehabilitation to be very good. [26]

15. [62]

    Lastly, it is necessary to set out that his Honour indicated that the starting point for the sentence to be imposed upon Mr Hopkinson was a head sentence of imprisonment of 17 years, which his Honour reduced by 25% for the early plea of guilty, resulting in a head sentence of 12 years and 9 months. As a result of the finding of special circumstances, his Honour fixed a non-parole period of 8 years and 3 months, which, taking account of rounding, is 65% of the head sentence.

16. [63]

    Apart from the general findings to which reference has already been made, specific findings were also made in relation to Mr Robertson in the remarks on sentence.

17. [64]

    First, the learned sentencing judge referred to the age of Mr Robertson which was 18 years and 8 months at the time of the offence. Secondly, his upbringing was relatively “normal” and was generally “prosocial”. [27] Despite this, the sentencing judge accepted the evidence that the respondent was “unusually immature”; [28] however, Dr Nielssen, forensic psychiatrist, expressed the opinion that the respondent, Mr Robertson, did not meet the criteria for any kind of diagnosis.

18. [65]

    The evidence of Mr Robertson was that he was scared of Mr S and feared retribution from him. Along with further factual material, the sentencing judge took this evidence into account in accepting that Mr Robertson was acting under non-exculpatory duress. Notwithstanding that acceptance, the sentencing judge noted that there were several options of escape open to Mr Robertson which he did not take. [29]

19. [66]

    The learned sentencing judge considered that Mr Robertson’s youth and exceptional immaturity should be taken into account in determining objective seriousness and referred to well-accepted and oft-cited authority in that regard. [30]

20. [67]

    His Honour rejected Mr Robertson’s evidence that his consumption of Xanax may have contributed to his actions in respect of the cricket bat and the knife. [31] His Honour also noted that the offending was aggravated, pursuant to the terms of s 21A(2)(c) of the Crimes (Sentencing Procedure) Act by the use of a weapon and that Mr Robertson was able to bring “considerable force to bear” using the cricket bat to strike the deceased. [32] Further, his Honour referred to the aggravation associated with the fact that the offence was committed in company, pursuant to the terms of s 21A(2)(e) of the Crimes (Sentencing Procedure) Act.

21. [68]

    The learned sentencing judge considered that Mr Robertson’s prospects of rehabilitation were high and that he was unlikely to reoffend. Mr Robertson has no mental health issues or significant alcohol or drug issues and was, prior to the offending in question, of otherwise good character. [33] His Honour noted that Mr Robertson had no prior convictions and that he has a supportive family. His Honour further noted the references provided in relation to Mr Robertson from adults who have known him over his formative years.

22. [69]

    The findings of the sentencing judge took account of the fact that Mr Robertson expressed and exhibited genuine remorse. [34]

23. [70]

    A confidential exhibit was tendered to his Honour and is before this Court on appeal. As a consequence of that exhibit and the facts contained therein, it is clear that Mr Robertson is prepared to give evidence against Mr S at his trial, which the Court understands is to commence on 11 April 2022. His Honour considered that the future assistance to be provided was such that there should be a reduction in the sentence that would otherwise be imposed as a consequence of the provisions of s 23 of the Crimes (Sentencing Procedure) Act.

24. [71]

    Noting that the resulting sentence must “not be unreasonably disproportionate”, [35] his Honour considered that the assistance, all of which is future assistance, [36] warranted a reduction of his sentence of 20%, over and above the reduction for the early plea of guilty. Together, the reduction for the plea of guilty and the future assistance amounted to 45% of the sentence that would otherwise be imposed.

25. [72]

    His Honour indicated that the starting point for the sentence was a head sentence of imprisonment of 24 years. After one reduced it by the 45% combined discount for the plea of guilty and future assistance, the head sentence was calculated as a term of imprisonment of 13 years and 2 months.

26. [73]

    The previously recounted finding of special circumstances applied to allow a reduced non-parole period compared with that which would otherwise have been imposed, were his Honour to have applied the statutory ratio. The resulting non-parole period of 9 years was approximately 68% of the head sentence.

Summary of Crown submissions.

1. [74]

   In relation to the respondent, Mr Hopkinson, the Crown submitted that the learned sentencing judge failed to take into account the aggravating factor of s21A(2)(c) of the Crimes (Sentencing Procedure) Act, being the use of weapons; the wrench, the cricket bat, two knives, and the steel-toe boots worn by Mr S. Further, the Crown submitted that the learned sentencing judge failed to take into account gratuitous cruelty as an aggravating consideration, prescribed by s 21A(2)(e) of the Crimes (Sentencing Procedure) Act.

2. [75]

   The Crown notes that the terms of the remarks on sentence do not expressly refer to any factors under section 21A of the Crimes (Sentencing Procedure) Act in relation to Mr Hopkinson and points to the concession, by counsel for Mr Hopkinson at the sentence proceeding, that the use of weapons was a factor relevant to the relative seriousness of the offending.

3. [76]

   In relation to Mr Robertson, the Crown submitted on appeal that the learned sentencing judge failed adequately to take into account the aggravating use of weapons. [37] The Crown accepts that the sentencing judge addressed the use of the cricket bat, but submits that his Honour did not consider the other weapons used in the conduct, being the wrench, two knives and the aforementioned steel toe boots. Again, the Crown submits that the learned sentencing judge did not take into account gratuitous cruelty as an aggravating consideration. [38]

4. [77]

   The Crown submitted that the aggravating factor associated with gratuitous cruelty plainly applies to both respondents. The Crown’s submissions stressed the lengthy detention; torture; stripping of the deceased; sustained and savage beating; and, stabbing of the throat with two separate implements.

5. [78]

   The learned sentencing judge’s recitation of the facts and characterisation of the offending as “savagery” or the “heartlessness involved” [39] was not, on the Crown’s submission, sufficient to lead to a conclusion that section 21A(2)(f) was taken into account adequately or properly.

6. [79]

   The Crown submits that a proper understanding of the remarks on sentence, and, in particular, the passage relating to the rationale for the higher standard non-parole period, discloses that his Honour took into account a standard non-parole period of 20 years, rather than the required standard non-parole period of 25 years for the murder of a person under the age of 18. The Crown submits this is confirmed and/or evidenced by the starting points for the respective sentences.

7. [80]

   The Crown submitted that his Honour’s reliance upon the judgment and comments of Matthews AJ in R v Milat & Klein, [40] was an error of principle and the comments of her Honour were doubted by the Court of Criminal Appeal. [41] This Court in Milat v R; Klein v R [42] doubted the correctness of the proposition that the 25-year standard non-parole period had reduced significance. The Court said:

8. [81]

   The Crown submitted, on appeal, that the sentences imposed are plainly unjust and unreasonable in the light of all the findings of the sentencing judge. The Crown submitted that the starting sentence of 24 years for Mr Robertson and 17 years for Mr Hopkinson were below the standard non-parole period in circumstances where the offences were assessed, as above, at the mid-range of objective seriousness respectively. The Crown has submitted that the starting point of the sentences were themselves inadequate, having regard to the objective seriousness of the offending. The Crown identifies two matters that it submits contributed to the manifest inadequacy.

9. [82]

   First, the Crown submits that the sentencing judge gave disproportionate weight to the youth and immaturity of the respondents. The Crown has submitted, in this respect, that these aspects were largely accounted for in the findings by his Honour on objective seriousness; that the reduction in culpability afforded by youth is less significant with respect to serious offending; and, that disproportionate weight was given to rehabilitation over retribution and denunciation.

10. [83]

    Secondly, the Crown submits that the sentencing judge failed to mediate properly the total discount given to Mr Robertson for future assistance. The Crown submits that s 23(3) of the Crimes (Sentencing Procedure) Act sets a bottom line, being that the resultant sentence must not be unreasonably disproportionate to the offence, notwithstanding the assistance provided.

11. [84]

    Further, the Crown submitted that there was significant other evidence that was material in the case against Mr S, without the assistance of Mr Robertson, thereby submitting that the assistance was not of sufficient worth to warrant the 20% reduction.

12. [85]

    Further again, the Crown has submitted that the combined discount of 45%, for the plea of guilty and assistance, was “excessively generous” and resulted in a sentence that was unreasonably disproportionate. The error in this approach, on the Crown submission, was compounded by the circumstance that Mr Robertson’s sentence was, as a consequence, not appropriately more severe than the sentence imposed on Mr Hopkinson; despite his Honour’s finding that the objective seriousness of Mr Robertson’s conduct was greater, and the subjective case of Mr Hopkinson was slightly better.

13. [86]

    The Crown attached to its submissions a table of sentences imposed for murder. The only sentences imposed as a result of CCA judgments in that table were those imposed in the case of Milat and Klein, supra, Borg, [44] and Kennedy [45] . Each of those matters was either above mid-range or within the worst category or the “serious range”. Otherwise, the table consists of first instance judgments, each of which necessarily depend upon the circumstance of that offending.

14. [87]

    The table ranges for the head sentence from a highest sentence, pre-discount, of 43 years to a lowest sentence, pre-discount, of 18 years and a non-parole period, also pre-discount, between 30 years and 12 years 7 months. On a discounted basis, the table discloses a pattern for head sentences of 43 years (no discount being applied) to 12 years and 8 months, and a non-parole period pattern between 30 years and 9 years and 6 months.

15. [88]

    The table does not include the judgment of the Court of Criminal Appeal in Raad v R [2011] NSWCCA 138 which, albeit after discount for Ellis factors, imposed a sentence of 12 years, with a non-parole period of 9 years on an adult convicted of murder and armed robbery of another adult. The sentence imposed in Raad was by majority; the dissenting judge proposing a sentence of 12 years with a non-parole period of 6 years.

16. [89]

    Obviously, there are many murder sentences that have been imposed over the years that are not included in the table presented. The foregoing is not a criticism of the table nor of the Crown, but it is important to remember that the pattern of previous sentencing is not the same concept as the range of sentences that are available. Each sentence depends upon the particular circumstances pertaining to the offence and the offender.

Summary of respondents’ submissions

1. [90]

   For obvious reasons, there was significant overlap between the submissions of each of the respondents. For that reason, each of the respondents’ submissions will be dealt with together and, where appropriate, distinguished.

2. [91]

   The respondents submit that the mere fact that a matter has not been mentioned in the remarks on sentence does not, of itself, found an appeal. [46] The respondents also rely on his Honours remarks that the offences were “difficult to comprehend”, and, were characterised by “heartlessness” and “savagery” in relation to the issues of gratuitous cruelty. [47] The submissions on Ground 1 also referred to the fact that, in relation to the respondent Mr Hopkinson, his Honour considered the use of a weapon, being the wrench. [48]

3. [92]

   In the case of Mr Robertson, the reference to “savagery” was made with particular reference to his involvement. [49] Further, the respondent submits that, while s 21A(2)(f) of the Crimes (Sentencing Procedure) Act has application, an understanding of the entirety of his Honour’s remarks shows that the cruelty was taken into account but that his Honour tempered the application of the aggravating factor because of the pre-eminent role played by Mr S.

4. [93]

   First, in relation to Ground 2, the respondents submit that the judgment of this Court in Milat and Klein [50] was obiter and did not expressly overturn the statement of principle by Matthews AJ at first instance. The respondent submits that the principle is not “incorrect”; therefore, an incorrect principle was not relied upon by the sentencing judge.

5. [94]

   Secondly, the respondents submit that the sentencing judge did not take into account a standard non-parole period of 20 years. In this respect, the Crown, it is submitted, has misread his Honour’s remarks.

6. [95]

   Rather, the respondents submit, his Honour’s comments, adopting the comments of Matthews AJ, related to the rationale for the increased standard non-parole period. Notwithstanding his Honour’s comments, the sentencing judge took into account the standard non-parole period of 25 years, [51] which noted that the standard non-parole period of 25 years applied to murder of a juvenile.

7. [96]

   Moreover, the respondents contend that the Crown’s submission that the error was evidenced by the starting point utilised by his Honour is inconsistent with principle. The Court has previously criticised submissions in similar terms to the Crown’s submissions before this Court. [52]

8. [97]

   First, in relation to Ground 3 and the respondent, Mr Hopkinson, the issue raised by the Crown in relation to the discount for future assistance has no application. In relation to Mr Robertson, counsel submitted that his Honour’s remarks specifically recognised the limitation contained in s 23(3) of the Crimes (Sentencing Procedure) Act and submitted that his Honour exercised the sentencing discretion, in that respect, appropriately.

9. [98]

   Each of the respondents’ submissions were to the effect that the sentence imposed upon each of the respondents was within the sentencing range available to the learned sentencing judge. There was no disproportionate weight given to youth or immaturity. Further, as the Crown’s submission goes only to weight, it should not be the basis for interference by the Court.

10. [99]

    Each respondent relies on the circumstance that the Crown does not cavil with the learned sentencing judge’s assessment of objective seriousness. The subjective circumstances of each case — including, in the case of Mr Robertson, the assistance by way of evidence to be given in the trial of Mr S — affect the range available to his Honour, and the sentence is not outside that range; it is not unreasonable nor plainly unjust.

Consideration

1. [100]

   While trite and often repeated, it is necessary to re-state the purposes of sentencing. In relation to State offences, the purposes of sentencing are prescribed by s 3A of the Crimes (Sentencing Procedure) Act and include: ensuring that the offender is adequately punished; preventing crime by deterrence of the offender and other persons; protecting the community from the offender; promoting the rehabilitation of the offender; making the offender accountable for his or her actions; denouncing the conduct of the offender; and, recognising the harm done to the victim of the crime and the community. [53] The prescribed purposes of sentencing for the purposes of State law derives from common law principle.

2. [101]

   As the High Court has said:

3. [102]

   Apart from the difficult task of deriving an appropriate sentence that, in the view of the sentencing judge, best achieves the purposes of sentencing, the process itself is complicated by the circumstance that the sentencing judge must, of necessity, look to the maximum sentence and, if there be one, the standard non-parole period prescribed by the legislature as guideposts to the fixing of an appropriate sentence, bearing in mind the aforementioned purposes.

4. [103]

   Moreover, the sentencing judge must consider both the objective circumstances of the offence, including, objectively, the conduct of the offender, but also the subjective circumstances of the offender.

5. [104]

   While the task is multifactorial, it is inappropriate and contrary to principle to deal with the matter in a staged approach. The High Court, in Wong [55] said:

6. [105]

   The foregoing passage was cited with approval by the High Court in Markarian, [57] where the plurality judgment and the judgment of McHugh J made clear that, while there may be no single correct method of sentencing, the preference was for an “intuitive synthesis” approach. In the reasons for judgment of McHugh J in Markarian, his Honour said:

7. [106]

   The approach of “instinctive synthesis” has long been considered by sentencing judges to be the only method by which a sentence may be imposed that reflects all of the purposes of sentencing; the maximum sentence, and any standard non-parole period; and, marries the objective and subjective circumstances of the offence and the offender to achieve sentencing purposes.

8. [107]

   Further, as the judgment of McHugh J states, by reference to the plurality in Wong, supra, “mathematical increments and decrements to some pre-determined notional sentence are ‘apt to give rise to error’.” [59]

9. [108]

   As is clear from the foregoing citation, there is no single correct sentence. Rather, there are a range of sentences that may be proportionate to the offence committed and the subjective circumstances of the offender. A staged approach to sentencing tends to obscure that aspect and assumes that a single correct objective sentence can be derived.

10. [109]

    In Markarian, Kirby J opted for allowing a “staged” approach, because it revealed the process by which a sentencing judge dealt with issues. Since the judgment in Markarian, the approach of Kirby J, stressing transparency over instinctive synthesis, has not been followed. Transparency does have a place in the approach to be taken, but the need for transparency does not diminish the instinctive approach that is required in sentencing.

11. [110]

    The foregoing is relevant to the current issues before the Court. The legislature requires a sentencing judge to take into account aggravating and mitigating factors in the fixing of a sentence. [60] It is not, however, a requirement for a judge to fix a sentence and, thereafter, aggravate and mitigate the sentence as a result of the application of s 21A of the Crimes (Sentencing Procedure) Act. Nor is it, as a matter of principle, permitted.

12. [111]

    Often, the aggravating and mitigating factors, to which s 21A refers, are intuitively and appropriately factored into the fixing of objective circumstances and the assessment of the subjective circumstances of an offender. As a matter of transparency, it is useful if a sentencing judge explicitly refers to those factors already taken into account, but it is unnecessary to use the provisions of s 21A as a checklist, or in any “formulaic” fashion.

13. [112]

    Nor is it necessary for the sentencing judge to refer to the paragraph numbers, or to use the precise words which the legislature has chosen in defining the aggravating or mitigating factors.

14. [113]

    As has been seen in the context of administrative law, and which applies to appeals from an exercise of discretion, this Court should not be concerned with “looseness of language” nor “unhappy phrasing”. Nor should the reasons of a sentencing judge be “construed minutely and finally with an eye keenly attuned to the perceptions of error”. [61]

15. [114]

    Other general principles need to be noted. The respondents on this appeal were each sentenced on the basis of joint criminal enterprise. The effect of a joint criminal enterprise, whether extended or otherwise, is that an offender is legally responsible for the conduct of each of the participants in the enterprise.

16. [115]

    Nevertheless, when one is sentencing co-offenders, one must assess the role of each co-offender, that co-offender’s moral culpability and the objective seriousness of the offence as it was committed, together with the extent to which the particular co-offender’s conduct warranted such an assessment.

17. [116]

    Thus, it is important, in order to ensure the application of the fundamental principle of equal justice, that persons who have relevantly conducted themselves in the same way and have the same subjective circumstances are treated the same. Most importantly, persons who have acted differently, have different moral culpability, have different roles in the overall offence, and/or have different subjective circumstances, should be treated differently. The difference in their treatment should rationally reflect the difference in the circumstances that pertain to their offending, and/or the offenders. [62]

18. [117]

    Thus, even where, as here, co-accused are responsible for the acts of other co-accused in their joint criminal enterprise, the conduct of each of them requires separate assessment for the purpose of determining an appropriate sentence. This ensures that those that are alike are treated alike and those that are unalike are treated differently.

19. [118]

    The second aspect of general moment that needs comment is the approach to youth. The principles are now well established. In LNT [63] the Court said:

20. [119]

    Affirming this approach in MJ v R [65] , I said:

21. [120]

    One of the expositions that warrants repeating was that of Hodgson JA in BP [67] , in which his Honour said:

22. [121]

    It is necessary, bearing in mind the foregoing principles, to examine the remarks on sentence of his Honour as a whole, by reference to the grounds of appeal. The first such ground is that his Honour failed to take into account material considerations, particularly the statutory factors of aggravation relating to the use of weapons and gratuitous cruelty.

23. [122]

    As earlier stated, it was unnecessary for his Honour to refer to the paragraph numbers of the “aggravating features” to which the Crown has referred in its submissions. Nevertheless, from a reading of the judgment as a whole, it is obvious that his Honour had regard to the fact that the offence involved the use of weapons and, in particular, the use of a wrench, a cricket bat, and two knives, as well as the steel-toed boots which Mr S used to stomp on the victim’s head. More importantly, in dealing with the role of each of the respondents, his Honour had particular regard to the use by Mr Robertson of the cricket bat, and the use by Mr Hopkinson of the wrench, either to strike or to threaten.

24. [123]

    As to the gratuitous cruelty, one starts an examination from the proposition that almost all murders involve violence. As such, violence is an inherent aspect of the crime of murder.

25. [124]

    However, his Honour made express reference to the particular cruelty of this murder, when the whole of the conduct is considered. He referred to the crime and the offending as “savagery” and to the conduct as involving “heartlessness”. Each of those is a reference to the particular cruelty — over and above that which is an inherent feature of murder — involved in each of the respondents’ offending conduct. That conduct was summaries at length by his Honour.

26. [125]

    Even though his Honour did not refer to s 21A(2)(c) and (f) by paragraph number, he did refer to the factors to which each of those paragraphs is directed. While his Honour could have been more explicit in his reference to the aggravating features, or in making clear that these aggravating features were taken into account in assessing objective seriousness; in my view, his Honour has had sufficient regard to each factor.

27. [126]

    Further, for his Honour — having already had regard to each factor — to pay regard to the factor again, or to add to the objective seriousness otherwise assessed, would be to engage in what might be regarded as a two-stage approach to the assessment of objective seriousness or to the sentencing process as a whole. As a result, this ground of appeal, being Ground 1, must fail.

28. [127]

    In Ground 2 of the appeal, the Crown submits that the sentencing judge acted upon a wrong principle, in that his Honour had regard to the wrong standard non-parole period. The relied upon passage in his Honour’s judgment has been recited above. [69]

29. [128]

    His Honour, in his Remarks on Sentence set out the standard non-parole period applicable to the offence on two occasions. [70] On each occasion his Honour set out the standard non-parole period as being 25 years.

30. [129]

    The passage at [164] of his Honour’s Remarks is a passage which refers not only to the age of the victim, which was almost 18 years, but, more importantly, to the “age gap” of the offenders and the victim. This comment harkens back to the long-standing and oft-repeated principles relating to the manner in which one treats the youth of an offender in determining objective seriousness and the appropriateness of a particular sentence.

31. [130]

    For my own part, I agree with the comments of RA Hulme J, recited above, in Milat and Klein, supra. The standard non-parole period does not alter. Where the victim is particularly young, it may increase the objective seriousness of the offence. However, when one is referring to the “age gap”, one is considering not only the age of the victim, but the youth of the offender.

32. [131]

    The comment of the sentencing judge, however, was not directed at whether the standard non-parole period was reduced from 25 years. Rather, his Honour was referring to the fact that where, as here, offenders are only just over 18 and the victim is just under 18, the rationale for the extended standard non-parole period is “significantly reduced”.

33. [132]

    Of course, it is for the legislature to fix the standard non-parole period and a “reduction” in the rationale for an extension does not reduce the standard non-parole period. However, when exercising the sentencing discretion, the fact that the offender is just over 18 years and the victim just under 18 years is a factor which may be taken into account in determining an appropriate sentence and an appropriate non-parole period.

34. [133]

    There are complexities associated with applying a different standard non-parole period as a guidepost for different murders. Understandably, the legislature has indicated that the murder of a child or person under the age of 18 is a more serious offence than the murder of an adult. In part, this is due to the vulnerability of the juvenile. But others may be as vulnerable, if not more so.

35. [134]

    For example, the extremely elderly may be as vulnerable as a young child, and certainly may be more vulnerable than a 17-year-old. The operation of the standard non-parole period as a guidepost in the fixing of a sentence allows for the sentencing judge, in her or his discretion, to take account of such complexities. In this way, the 25-year standard non-parole is not a benchmark from which one calculates a head sentence or subtracts and adds mitigating and aggravating features.

36. [135]

    Nevertheless, in relation to this particular aspect of Ground 2, the learned sentencing judge expressed the standard non-parole period as being 25 years. He did so on two separate occasions. In no other passage did his Honour refer to a standard non-parole period that was other than 25 years. The passage at [164] does not state a principle, nor does it take the remarks made by Matthews AJ in Milat & Klein, supra to effect a different standard non-parole period. Therefore, the sentencing judge has not erred by taking into account a standard non-parole other than the one that has been prescribed.

37. [136]

    The reference to the “age gap” lessening the rationale is, in my view infelicitous. However, it does not state a principle and, if it were to be a principle, it says no more than where an offender is only just above the age of a juvenile, the age gap is a factor that may be relied upon in assessing an appropriate head sentence and/or non-parole period.

38. [137]

    The Crown also submits that the error of the sentencing judge, on this ground, is evidenced by the starting points for the respective sentences. The starting points are either manifestly inadequate or they are not. The starting points for the respective head sentences take account, not only of the objective seriousness of the offences and the role of each respondent, but also each respondent’s subjective circumstances.

39. [138]

    In Tassis, supra, this Court dealt with a similar issue, albeit from the standpoint of an offender who had been sentenced and was appealing the judgement. The Court said:

40. [139]

    I adopt the reasoning of the Court as outlined in the foregoing to the extent it relates to the submissions in Ground 2. Moreover, the starting point calculation that allegedly evidences his Honour’s reliance on a wrong standard non-parole period is contradicted by his Honour’s explicit reference, on two occasions, to the 25-year standard non-parole period that applies to the offence. As stated, at no stage did his Honour mention any other standard non-parole period.

41. [140]

    Consequently, no error is disclosed, and Ground 2 of the appeal should be dismissed.

42. [141]

    I turn then to the Crown’s submission, being Ground 3, that the sentence is manifestly inadequate. As already noted in these reasons, the range of sentences available to a sentencing judge to impose upon an offender must take account of both the objective and subjective circumstances of the offence and the offender.

43. [142]

    Further, the range of sentences is a different concept than the pattern of past sentencing. [72] In Hili, supra, the High Court, citing with approval the judgment of Simpson J [73] stated:

44. [143]

    Manifest inadequacy (or excess) is a conclusion derived from an examination of the subjective circumstances of the offender and the objective circumstances of the offence. In these proceedings, no challenges are made to the assessment by the learned sentencing judge of objective seriousness.

45. [144]

    It is then necessary for the Court to examine the subjective circumstances of each of the offenders which were set out by his Honour. There is no challenge to the findings of fact in relation either to the objective or subjective circumstances.

46. [145]

    In my view, the starting point to which his Honour referred in his remarks on sentence were not, in the case of either respondent, manifestly inadequate. In the case of Mr Robertson, the starting point was 24 years as a head sentence. Given Mr Robertson’s subjective circumstances, this was light but not manifestly inadequate.

47. [146]

    In the case of Mr Hopkinson, the starting point was a head sentence of 17 years, which, again, given Mr Hopkinson’s role and subjective circumstances, was light but not manifestly inadequate.

48. [147]

    Each of the respondents was entitled to a reduction for the early plea of guilty of 25%, having pleaded guilty at the first opportunity in the Local Court. This was applied to Mr Hopkinson and resulted in a head sentence of 12 years and 9 months. The non-parole period set by his Honour in relation to that head sentence was approximately 65% of the head sentence, after finding special circumstances. The foregoing calculations resulted in a head sentence of 12 years and 9 months and a non-parole period of 8 years and 3 months.

49. [148]

    In the case of Mr Robertson, on top of the discount for the early plea of guilty, his Honour allowed a 20% discount for assistance to authorities. Mr Robertson has undertaken to give evidence in proceedings against Mr S. A statement of evidence has already been provided. There is a confidential exhibit for the Court outlining the statement and the matter is referable to that assistance.

50. [149]

    The Crown submits that there was significant independent evidence that would convict Mr S which, therefore, lessens the importance of the assistance of Mr Robertson. Notably, the other material viewed by the Court was not eyewitness evidence of the conduct of Mr S.

51. [150]

    Notwithstanding that an appropriate warning will need to be given in relation to the evidence of Mr Robertson, I do not consider that the assistance to be provided by Mr Robertson is anything other than extremely significant. He will be, as I understand it, the only eyewitness to the events. That is an extremely significant factor.

52. [151]

    In McKinley, [75] I referred to the past approach to the assessment of a discount for assistance. It is unnecessary to repeat that analysis.

53. [152]

    Even when the Court was far more “arithmetic” in its approach, this Court took the view that the combined discount for pleas of guilty and assistance were usually within the range of 20% and 50% and, together with the plea of guilty, between 40% and 60%. On occasions, the assistance reduction was provided in circumstances where the assistance was offered after trial and the 20% figure applied in such circumstances.

54. [153]

    It was said, during that period, that the reduction for assistance should not normally exceed 50% for the combined discount in the absence of very exceptional circumstances. Nevertheless, there were always cases in which a combined or composite discount for the plea of guilty and assistance was more than 50%, and appropriately so.

55. [154]

    Further, at one stage there was a view taken, with which I disagree, and disagreed at that time, that offenders only receive 50% if they were prepared to give evidence. Evidence, at that point, was taken to be the best assistance that could be given. For my own part, I agree with the comments made during the course of this appeal that the wearing of a “wire” in dangerous circumstances may be far more worthy of a greater discount than the giving of evidence in court. [76]

56. [155]

    Nevertheless, the Court, properly, no longer takes an arithmetic approach. In line with the principles established by the High Court in Hili, supra, consistency in this area is also achieved by the consistent application of principle, not by numerical equivalence. However, the 45% discount for the combined effect of Mr Robertson’s early plea of guilty and assistance is not unusually excessive nor inappropriate. Numerically, it accords with a significant number of cases in which a similar discount was afforded. It was plainly open to his Honour to provide for a discount of that magnitude and, subject to manifest inadequacy more generally, it open to him to arrive at the conclusion that, in applying the discount, the sentence was not unreasonably disproportionate.

57. [156]

    Next, the Crown submits that his Honour has erred by giving disproportionate weight to youth and immaturity. In particular, it is submitted that his Honour has had regard to youth and immaturity in setting the head sentence and the non-parole period, and, to the extent that it is different, in the finding of special circumstances.

58. [157]

    As is clear from the passage of Hodgson JA in BP, extracted above, youth and immaturity affect a range of factors, and are relevant to the significance of retribution, the significance of rehabilitation and in mitigating culpability, each of which is important in the sentencing process. [77] It may also give rise to very good reasons for special circumstances.

59. [158]

    Lastly, it is necessary to deal with the Crown submission that the inadequacy of the sentence can be derived by the circumstance that the sentence imposed on Mr Hopkinson was only slightly less severe than that imposed on Mr Robertson. This submission fails for four reasons.

60. [159]

    First, the submission relies, in effect, on disparity; however, the principle of disparity cannot be used to increase a sentence beyond that which is otherwise considered appropriate by the sentencing judge. [78] In Lowe, supra, Mason J said:

61. [160]

    Secondly, the difference between the ultimate sentences imposed reflects the assistance to be given by Mr Robertson, which does not give rise to a justifiable sense of grievance given that this reason is made explicit to the offenders and the community. This would be so, even if, which is not the case, one were able to appeal on the basis of disparity to increase a sentence.

62. [161]

    Thirdly, the Crown submission utilises objective seriousness as the relevant comparator. However, the sentence must reflect every relevant factor, which includes any allowance for subjective circumstances and assistance to which Mr Robertson is found to be entitled. This submission should be rejected.

63. [162]

    Finally on this issue, where the sentences do not offend the disparity principle, it is impermissible to utilise the relationship between sentences as a basis for a submission on manifest inadequacy of one or other of the sentences. The sentences either offend the disparity principle or are manifestly inadequate; there is no relationship between the two in such circumstances.

64. [163]

    Given the foregoing comments, the determination of whether the sentences of each of the respondents is manifestly inadequate rests upon whether the Court is of the view that the sentences are “within range” and/or the conclusion that they are unreasonable or plainly unjust.

65. [164]

    I accept that the sentences are light. If one were not to examine the particulars of each of the respondents, a superficial impression would be that they were inadequate. But, in my view, once one factors in the matters to which his Honour has referred, as one must, each of the sentences is within range and not manifestly inadequate, notwithstanding that they may be light. Nor is the sentence imposed on Mr Robertson unreasonably disproportionate as a consequence of the reduction for assistance.

66. [165]

    For the foregoing reasons, I would reject Ground 3 of the appeal. In the above circumstances, the appeal should be dismissed.

67. [166]

    Because of the conclusions I have reached in relation to each of the grounds of appeal, it is strictly unnecessary for me to deal with the issue of the residual discretion. I am mindful that the Crown notified the respondents at an early time of the intention to appeal and that is not a factor that the Court should take into account in determining any residual discretion. However, I am also mindful that there is no challenge to any of the findings of fact of the learned sentencing judge. The challenge, therefore, is the weight given by the sentencing judge to each of the factors in determining a sentence.

68. [167]

    In those circumstances, if it were necessary to express an opinion, I would not exercise the residual discretion to overturn the sentence given the youth and other subjective circumstances of the respondents and their prospects of rehabilitation.

69. [168]

    I propose that the Court dismiss the appeal in each case.

70. [169]

    HAMILL J: I have had the great advantage of reading the draft judgments of both Leeming JA and Rothman J. I agree with the order dismissing the Prosecution appeal proposed by their Honours. Neither of the sentences under review is manifestly inadequate, unreasonable, plainly unjust or wrong. I agree with the reasons provided by Rothman J for dismissing the grounds of appeal advanced by the Director. I also agree generally with observations made by the presiding Judge.