R v Erdogan

Supreme Court of NSW|2022-10-21|Before: Ierace J

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Macquarie Law Group (Offender) File Number(s): 2019/96561

Judgment

HIS HONOUR: Yigit Can Erdogan (the offender) is to be sentenced for the murder of Justin Tsang on 12 March 2019, for which he is convicted, following a trial by jury. Joel Robertson and Christopher Hopkinson (the co-offenders) were sentenced for the same offence prior to the offender's trial: R v Robertson; R v Hopkinson [2021] NSWSC 861.
The indictment contained two counts, the charge of murder being the second. The first count, to which the offender also pleaded not guilty, was that on the same date he detained Mr Tsang without his consent and in the company of the co-offenders, with the intention of obtaining a financial advantage, and at the time of the detention actual bodily harm was occasioned to Mr Tsang, contrary to s 86(3) of the Crimes Act 1900 (NSW). On that count, the jury were unable to agree on a verdict and the Director of Public Prosecutions (DPP) has determined to not proceed to a retrial.

The circumstances of the offence

At the time of the offence, the offender, who was known as "John" Erdogan, was aged 19 years and 6 months and 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 late 2018, together with three other young men who I will refer to as Messrs X, Y and Z. The killing occurred in that house.
This exercise is not a review of all the evidence in the trial, but rather the evidence that is relevant to my determination of the facts of which I can be satisfied beyond reasonable doubt as to the offender's intention, role and motive, which necessarily involves a separation of what acts he did as opposed to those committed by his co-offenders. That evidence incudes admissions by the offender, evidence of eyewitnesses including his co-offenders and Mr Z, and forensic evidence. My determination of the facts is my own view, so long as it does not conflict with the jury's verdict: Savvas v R (1995) 183 CLR 1; [1995] HCA 29 at 8.
Mr Z gave an induced statement to police as to his involvement in, or knowledge of, the offence and received an undertaking by the Attorney General of New South Wales that his evidence was not to be used against him, if it was truthfully given. Mr Robertson made an induced statement and received a discount on his sentence for assistance to the authorities, including him giving evidence in the trial of the offender. The evidence as to what was known by Mr X, Mr Y and a girlfriend of the offender, who I will refer to as Ms R, suggested that they became aware of the killing after the event and did not report it to the authorities. For those reasons, in making findings of fact for the purposes of fixing sentence, I approach their evidence with a degree of caution as to its reliability.
The offender gave evidence in the trial. I found him to be an unreliable witness and treat his evidence with considerable caution.
My assessment includes evidence that is relevant to both counts on the indictment and some that is exclusively relevant to the first count. The latter is included only because it is relevant to the basis on which the co-offenders were sentenced and thus as a matter of disparity between the facts for sentence of the offender and the co-offenders.
All of the permanent residents of the Burwood house, except for Mr Hopkinson, were recent school-leavers. Mr Hopkinson had left school at the end of year 11, in Western Australia. He met some of the others online through computer video games, a pastime that was the common thread between the house occupants and which brought them together. As well, Messrs Y and Z had attended the same high school, as did the offender, and knew each other from that time.
The offender contacted Mr Z in February 2019 and, from then, he would often stay in the Burwood house, sleeping on a lounge in the lounge room, which was adjacent to the front door. Mr Robertson's room was also on the ground floor, immediately behind the lounge room and adjacent to a flight of stairs in the hallway to the first floor, on which the other four permanent occupants had individual rooms. Further along the hallway from Mr Robertson's room was a dining room. The offender would regularly use Mr Robertson's car (the BMW) and Mr Z's phone, going so far as to text one of his friends, Mr Huy Chau, on 20 February 2019 that he had a "new number", which was in fact Mr Z's phone number. There was evidence that the offender was about to be evicted from the Burwood house, having outstayed his welcome.
The deceased resided with his parents and siblings in an inner western suburb of Sydney. The evidence of the co-offenders and the other three permanent residents of the Burwood house was that they had not met the deceased before he first visited the Burwood house on the evening of Monday 11 March 2019, that is, the evening before the day that he was killed. Mr X was not in the house while the deceased was present and gave evidence that he had never met him. The offender said that he met the deceased at an "internet café" in Burwood, through Mr Z. Although the offender may have met the deceased at that internet café, I find it was not through Mr Z, who I accept had not met the deceased before Monday 11 March 2019.

Monday 11 March 2019

The deceased occasionally supplied small quantities of MDMA and prescription drugs to his friends or associates. On the afternoon of Monday 11 March 2019, a person to whom he had previously supplied such drugs contacted him to obtain a tablet of Xanax. While the deceased was at this person's residence, which was in Drummoyne, he phoned the offender, who was at the Burwood house. At about 6pm, the offender drove to the Drummoyne address in the BMW with Mr Z and picked up the deceased, that being the first time that Mr Z had met the deceased. When they arrived back at the Burwood house, Mr Z went to bed which was, according to him, "possibly 7 in the evening". He had employment which involved an early start the next day.
The evidence of the offender, the co-offenders and Mr Y as to what occurred that evening in the Burwood house was essentially to the effect that the offender took the deceased upstairs and introduced him to them, who were in their respective rooms. Mr Hopkinson said they all gathered and chatted in his room where the deceased offered Xanax tablets to those present, and he and Mr Robertson took one Xanax tablet each. Mr Robertson said he stayed in his room and did not have any Xanax. He went to sleep around 2-3am. Mr Y said that he took two Xanax tablets and returned to his room where he fell asleep and did not wake until "probably around 10pm" the following night, that is, the night of Tuesday 12 March.
The offender's account was that after a while, he and Mr Tsang went downstairs to the lounge room. They watched music videos and then went out in the BMW. CCTV on a nearby residence (the street CCTV) captured the street movements of the BMW over the relevant period. It showed the BMW leaving the street at 8:47pm. CCTV images that were captured at a car park for a gym in Burwood depict the BMW parked there between 8:57pm and 9:34pm. The offender said he visited the gym and afterwards he "took some MDMA". They went on to a venue in Burwood that had poker machines.
The mobile phones that were used by the offender and Mr Tsang that night registered with cell towers in the Campbelltown area between 10:15pm and 1am. The officer in charge of the investigation gave evidence that a statement was obtained from a Mr Angel Pereira in June 2019, in which he said that he met the offender in February 2019 and on about 15 occasions between then and 11 March 2019. On that evening, in the Campbelltown area, he met the offender who was driving a car that matched the description of the BMW and was introduced to the deceased. Mr Pereira was with them for about 30 minutes, during which time they went to a McDonalds. The offender and the deceased appeared friendly to each other. In evidence, the offender said: "When we were at Campbelltown, the McDonalds, we, Justin, Angel and I took some Xanax again and around, after that it's not as clear, but we went to Brighton at some point."
Mobile phone cell towers in the greater St George area registered the mobile phones of the offender and Mr Tsang between 1:14am and 3am and thereafter cell towers registered Mr Tsang's phone in the Burwood area. The offender said in evidence that they arrived back at the Burwood house "pre-dawn".

An incident outside the Burwood house early that morning

That morning, Mr Z woke at about 4:30am and went to work at Villawood, by public transport. When he arrived, he was told he was not needed that day, and returned home. As he walked into the front yard of the Burwood house, he saw the offender and Mr Tsang seated in the BMW which was parked in the driveway. The offender was in the driver's seat and Mr Tsang was in the front passenger seat. The windows were down. Mr Z said, "John was very upset with Justin, going off at him. He was saying things at him, shouting at him. I [don't] recall what he was shouting at Justin". Mr Z asked the offender what happened. The offender said: "We were stopped with [a] police car behind us and Justin went ahead … and made a suspicious drug deal sort of hand gesture. And then at another time I had to go into an apartment or some other building and I told him to … stay on his side of the car and wait and then when I got back out of the building I saw that he was sitting in the driver's seat and probably digging around my stuff."
The offender's evidence was that on their return in the BMW, he and the deceased entered the house. He denied that they sat in the car in the driveway, that he was angry with Mr Tsang that morning, that they argued, that he saw Mr Z when he arrived back at the Burwood house, or that he spoke to him about an argument with Mr Tsang.
I accept the evidence of Mr Z as to his observations in the front yard of the Burwood house that morning and of his conversation with the offender. I find that, at that time, the offender was angry with the deceased and in Mr Z's hearing, accused him, amongst other matters, of going through his possessions.

Events in the Burwood house until shortly before 1pm

It is common ground between the parties that evidence in the trial to the effect that the offender detained and assaulted the deceased that day at any time up to 1pm is relevant only to the first count and therefore is not relevant to the sentencing exercise. I accept that joint submission. Those events were the subject of evidence by the offender, Mr Hopkinson and Mr Z. Mr Robertson's evidence was that he remained asleep in his room throughout that morning and until shortly before 1pm, when he was woken by Mr Z. As noted, Mr Y's evidence was that he slept through that day, not waking until that night and, according to all relevant witnesses, Mr X was not in the house at all.
The offender's account was that when he and the deceased arrived back at the house that morning, he went inside and fell asleep on the lounge in the lounge room. He remained asleep at that location until about 1pm, when he was woken by voices in the hallway outside his room.
Mr Z said that after he left the offender and Mr Tsang in the BMW, he entered the house and went to his room. Through a gap in his doorframe, he saw the offender, Mr Tsang and another person come upstairs and go into Mr Hopkinson's room.
Mr Z heard shouting and went to the door of Mr Hopkinson's room, where he saw Mr Tsang seated on the floor and the offender standing, holding a wrench. The offender told Mr Z that Mr Tsang had been stealing from the house. Mr Z left and checked his room, discovering that a sum of about $250 in foreign currency, which had been in a cabinet, was missing. Mr Z checked downstairs and did not notice anything else missing. He returned to Mr Hopkinson's room, had a conversation with the offender and returned to his room.
Later, Mr Z heard "a loud bang" and returned to Mr Hopkinson's room. The offender instructed him to bring some tools to the room. He went downstairs, found a bag of various tools which he took to the offender and left the room again. At some time that morning, the offender instructed him to go to a hardware store and buy a welder. Mr Z borrowed the BMW and did so. The street CCTV showed the BMW departing at 11:28am and returning to the street at 12:04pm. A receipt for a welder indicated the time of purchase was 11:55am on that date. There was no suggestion in the evidence of Mr Z, Mr Hopkinson, or anyone else, that the welder was unpacked or used on Mr Tsang.
Mr Z went downstairs and was joined by the offender in the living room, leaving Mr Hopkinson in his bedroom upstairs, holding the wrench to prevent the deceased from leaving. The offender rifled through the contents of the deceased's backpack. Inside was a set of earphones, a cigarette case, two pill containers of Xanax and a small bag of capsules or pills. The offender gave Mr Z the deceased's cigarette case, from which they removed and smoked a cigarette.
The offender and Mr Z went back upstairs to Mr Hopkinson's bedroom. The offender took $10 from the deceased's wallet, and gave it to Mr Z. The offender gave the deceased a Xanax tablet for the pain he was suffering from the assaults in Mr Hopkinson's bedroom. Mr Z went to his room and shut the door. The offender and Mr Hopkinson stayed in Mr Hopkinson's bedroom with the deceased.
Mr Hopkinson's evidence was that at about 7am, the offender and Mr Z brought Mr Tsang to his room. The offender and Mr Z accused Mr Tsang of having stolen money from Mr Z and struck him 2 or 3 times with a wrench, to his arms and legs. At some point, Mr Z left the room. The offender handed the wrench to Mr Hopkinson to ensure that the deceased remained in the room and left for about 15 seconds. The next event he recalled was he, the offender, Mr Z and the deceased went downstairs.
The offender submitted that, in view of the jury being unable to reach a verdict on the first count, the Court should accept the offender's version that he was asleep that morning. While I disregard the evidence to the effect that the offender detained and assaulted the deceased in company that morning, I am not satisfied that the offender was asleep from shortly after he entered the house until shortly before 1pm. The evidence does not enable me to make a determination as to where he was or what he was doing that is in accordance with the jury being unable to reach a verdict.
For the purposes of the sentencing exercise, I have regard to the evidence of the interaction in the front yard between the offender and the deceased and then move directly to the events from shortly before 1pm.

The car trip to Mr T's street at about 1pm

The evidence of events from 1pm until about 1:26pm is relevant to both the first and second count. The evidence of Mr Hopkinson was that while they were downstairs, the offender said, "We need to … go to this person's house and collect some money on behalf of Justin". Mr Z's evidence was that the offender said, "We will go and get some money, something along those lines" and told him to wake Mr Robertson, because, "I want another person in the car so Justin doesn't try to do anything".
Mr Robertson said that he was woken by Mr Z, saying he needed his help. He put a hoodie over his pyjamas and followed Mr Z to the BMW. He got in, and the offender said something along the lines of: "… property being stolen from the house and that Justin was being accused of stealing that property … John was asking Justin for a friend that was willing to pay $500 … in regards to the stolen property."
The deceased gave the name and address of a friend in Five Dock, who I will refer to as Mr T, and the vehicle drove off. The offender and Mr Z's evidence was that they knew Mr T from school.
The street CCTV captured the BMW leaving the street of the Burwood house at 12:59pm. The offender drove. Mr Z was in the front passenger seat and the deceased was in the back seat, between the co-offenders. Their evidence varied as to whether there were additional means taken to ensure the deceased did not escape. Mr Z said that Mr Hopkinson had one of the deceased's fingers in pliers when they were in the BMW and the offender had a wrench; Mr Robertson recalled a wrench in the car which he thought Mr Z was holding, but he was unsure.
The offender stopped outside Mr T's address and used Mr Z's phone to call him on Facebook Messenger. Records established that the call, which lasted two minutes and 37 seconds, was made at 1:04pm. Mr T gave evidence that he received a call at about that time: "… it was John Erdogan saying Justin owes him $500, 'Would you be able to pay that for him?' I said, 'I don't have money like that, not on me,' and to the effect John replied ‑ actually before that, I heard muttering in the background and him off to the distance saying, 'You little fucking mut,' and something else … … after me saying, 'I don't have money like that,' he replied, 'I'll just break his fucking arms then,' something along those lines."
The offender's evidence was that he drove the BMW to Mr T's address because Mr Z told him to. In cross-examination, he agreed he told Mr T that the deceased owed $500, and when Mr T replied that he did not have money like that on him, he said to the deceased, "You little fucking mut" and "I'll just break his fucking arms then", but did so only because Mr Z asked him to speak to Mr T and to "sound threatening to Justin". He agreed that both Mr Z and the deceased were his friends, but he nevertheless made the threat.
The co-offenders and Mr Z did not give evidence of Mr Z having directed the offender to drive, to ask Mr T for money or to threaten the deceased. Nor was it put to any of them that Mr Z had given such directions.
For the purposes of the sentencing exercise on the count of murder, I disregard the evidence of detention in company that is entailed in the evidence of the car trip. I take into account the evidence of the offender's demand for $500 that he made of Mr T only for the purposes of his reaction when it was refused, namely, that he became enraged. I am satisfied beyond reasonable doubt that the offender's expression of anger towards the deceased and the threat to break his arms were utterances made of his own volition.

The return to the Burwood house

The call to Mr T ended at about 1:09pm. Mr Z said that after the call, the offender "asked all of us in the car: Do you know of any abandoned locations?" Mr Z said: "yes, but … wait, no, that's not a good place".
Between 1:10 and 1:15pm, the offender used Mr Z's phone to make five unanswered phone calls on Facebook Messenger. The first two, made at 1:10pm and 1:11pm, were to Vincent Son Luc. The next two, at 1:13pm and 1:14pm, were to Mr Pereira. At 1:15pm, he rang Huy Chau and, at the same time, sent him a text with Mr Z's phone, stating, "bro, it's important" and at 1:16pm, "Urgent, need help". Mr Chau gave evidence that he had received the offender's texts and did not respond to them.
The offender then made a further call, that was answered, to Dennis Ngo, which lasted for four minutes and eight seconds. Mr Ngo was not called as a witness. There was no explanation before the jury as to why that was.
The offender said, of these calls: "Q. Why did you make that call? A. Um, after what [Mr Z] … told me about … saying something threatening to Justin, um, I didn't really want to be a part of it for like any longer … … So I called … my friend Dennis, and I explained to him the events pretty much of from when I woke up to the drive to [Mr T's] to the conversation that I had with [Mr T] and … I asked him if he could possibly pick me up and, like so I can extricate myself from the situation. HIS HONOUR Q. Where were you when you made that call? A. We were still in the car at [Mr T's]. [COUNSEL] … A. He said to me that he wasn't able to come pick me up because he was busy."
In cross-examination, the offender agreed that he made the calls in the presence of the others in the BMW. Mr Z said that after the call to Mr T, the offender made a call to a number that he was not familiar with, and he could not recall whether there was any conversation. Mr Robertson and Mr Hopkinson were not asked if there were any further calls in the car after the call to Mr T. The offender's explanation as to what he said on the call to Mr Ngo in their presence was not put to any of them.
The street CCTV showed the BMW arriving back in the street of the Burwood house at 1.26pm.

The killing of the deceased

The offender's account of what occurred upon their return to the house was that they walked inside and he said to the others, "I don't want to be involved. I'm going to the back". He said he went to a couch in the dining room and fell asleep, not waking until the late afternoon, by which time the deceased had been killed. Clearly this account was rejected by the jury.
The other accounts in evidence as to what occurred in the Burwood house that afternoon were from the co-offenders and Mr Z. My assessment of all three witnesses was that each was truthful in their accounts of what they did and observed. There were some differences between their accounts, which is unsurprising in view of the shocking and stressful nature of the events that they observed and partook in. I am of the view that Mr Hopkinson was, on occasion, unreliable as to the sequence of some of the events he described and his description of events was sometimes abbreviated. To the extent that there were differences between Mr Hopkinson's account and that of Mr Robertson and Mr Z, I find the evidence of Mr Z and Mr Robertson to be reliable accounts of what occurred.
On the basis of the evidence before the jury, I make the following findings, beyond reasonable doubt, as to the events leading up to the deceased's death, the acts that caused it and the acts for which the offender is responsible in causing the deceased's death.
When they arrived back at the Burwood house, the offender said, "open the garage door, so we can take Justin through the back door, so nobody could see out the front". Mr Z and Mr Robertson got out and attempted to open the garage door, but it was stuck. The offender, the deceased and Mr Hopkinson went inside. Mr Z and Mr Robertson entered a little later and saw the deceased sitting in the hallway, his back against a wall, wearing only his underwear. Mr Robertson said that the offender was holding the wrench that he had seen in the BMW. Mr Z thought the deceased appeared distressed. Mr Z was instructed by one of the co-offenders to go to his room and close the door, which he did. He sat at his computer with his headphones on.
Mr Robertson also went to his room and closed his door. In cross-examination, he was asked about an answer he gave to police, during an interview following his arrest: "Q. It may well be that you were asked if you considered calling the police at that stage. Do you remember Officer Peter Ruskin asking you that? A. Yes. Q. And you told him that you didn't consider it at that stage, including calling perhaps your parents because you didn't think that whatever was occurring was sufficiently concerning; that sums it up correctly? A. At that time, yes."
Mr Hopkinson said that, on their return, the offender instructed Mr Z to go to a hardware shop and buy a welder, which he did. Having regard to the evidence that corroborates Mr Z's version that he made that trip in the morning, and there being no apparent motive for Mr Hopkinson to lie about the matter, I am satisfied that Mr Hopkinson misremembered the sequence in which that event occurred. Similarly, he said that the offender told the deceased to take his clothes off, which he did, after Mr Z had gone to his room, and that the undressing occurred upstairs, whereas Mr Z said that he saw the deceased in the corridor downstairs, stripped to his underwear, before he went to his room.
Mr Hopkinson said that eventually he, the offender and Mr Robertson were with the deceased in the downstairs corridor near the front door and that the deceased was in his underwear. The offender said that they needed to soundproof the house, which Mr Hopkinson said involved putting on loud music and closing all the doors and windows.
Mr Z said that the next relevant event after he went to his room was that the offender came in and said, "we need to sound proof the house … go close blinds". Mr Z shut his window and blinds and went downstairs to check that all the blinds were closed. He saw that the deceased was still sitting in the hallway and someone (he could not recall who) was with him. I infer that person would have been Mr Hopkinson. There was loud music playing from the lounge room. Mr Z went back to his room, shut his door and put his headphones back on. He said, "I had also been distressed by what was happening".
From his room, Mr Robertson heard loud music being played, which he described as "deep base electronic music". He sent messages via his computer to Mr X because: "At the time I believed that … adding [Mr X] to the situation would escalate it. So I believed just asking him not to come to the house would prevent that."
The messages Mr Robertson sent Mr X were, at 1.36pm: "Seriously Please do me a solid" and "Don't come to the house until I call" (I note that "a solid" is vernacular for a favour); at 1.39pm: "[Mr X] stop enquiring I promise to talk to you about it personally"; and at 1.40pm: "[Mr X] this is for your own good" and "Don't go curious George on me". Mr X explained that after he received the first text, he tried phoning Mr Robertson several times but he did not pick up. That was the context of the second and third texts that Mr X received from Mr Robertson.
I am satisfied that the offender directed Mr Z and Mr Hopkinson to "soundproof" the house and that he did so because he intended to inflict really serious bodily harm on the deceased and wanted to ensure that any sounds made by the deceased did not alert neighbours. I am satisfied that Mr Robertson was not present with Mr Hopkinson, the offender and the deceased prior to the "soundproofing" of the house.
Mr Hopkinson said that after the steps were taken to "soundproof" the house, the offender went upstairs and returned wearing Mr Hopkinson's work boots. He then kicked the deceased's arms. Mr Hopkinson could see "a couple of bruises" on him. Mr Hopkinson said that on a couple of occasions before and after he saw the offender kick the deceased, he saw the offender holding the wrench, but could not recall what he was doing with it.
Mr Z said that the next thing he recalled was that the offender opened the door to his room and said, "this kid is so injured that, if we take him to a hospital, he is going to snitch. We need to kill him." Mr Z said, "A. I did not say anything. I was in shock." The offender went downstairs.
Mr Robertson said that at some point after the communications with Mr X, he left his bedroom. The deceased was still sitting against the wall in the hallway in his underwear, Mr Hopkinson was near the door of Mr Robertson's bedroom and the offender was at the base of the hallway stairs. The offender was holding a cricket bat that belonged to Mr Robertson and Mr Hopkinson was holding the wrench. At that time, Mr Robertson played grade cricket. The deceased "had his knees towards his forehead and his arms wrapped around his legs" and Mr Robertson could see "a few bruises on his arms and legs". At that stage, Mr Robertson could not see his face or head and did not see any blood.
Mr Robertson said he was shocked at what he saw and asked the offender what was going on. The offender replied that he was "still waiting for his mates to come over". Mr Robertson asked the offender, referring to the deceased, "What's he doing here?". At one point, the deceased said something and the offender responded by hitting him with the cricket bat multiple times, on his arms and legs. They were accompanied by "a fleshy thump, and whimpering" from the deceased. Mr Robertson said that the offender swung the bat "relatively hard … there was relatively a large amount of bat lift and swinging hard into Justin". He continued, "Justin proceeded to curl up on his side in the hallway into a foetal position". Mr Robertson said that he could not precisely recall what he said to the offender, but it was to the effect of "why he was doing this at our house … I can't exactly recall what he said in return".
Mr Robertson said that the offender took "a rough handful" of Xanax tablets from a bottle and gave them to the deceased, saying they were to "shut him up". The deceased swallowed the tablets and said, "thanks brother". The offender also gave a tablet to Mr Robertson and Mr Hopkinson. Mr Robertson swallowed the tablet. He had not taken a Xanax tablet before but explained that, "At the time I thought it was a way to use drugs to cope with the situation" and that he was "panicked and worried". He then returned to his bedroom.
Mr Hopkinson's evidence was that Mr Robertson was present with him, the offender and the deceased before the house was soundproofed and that the offender gave the deceased Xanax tablets at that time. I am satisfied beyond reasonable doubt that the correct sequence of events, as related by Mr Robertson, is reliable.
Mr Hopkinson said that he saw the offender kick the deceased both before and after the cricket bat was used. Mr Robertson said that about 30 to 45 minutes after he returned to his room, Mr Hopkinson came in and said that the offender had hit the deceased over the back of his head and that he was unconscious. Mr Robertson left his room and saw the deceased lying face down in the hallway, unconscious. The offender was nearby, holding Mr Robertson's cricket bat.
Mr Robertson said: "I was extremely surprised but I cannot recall what I exactly said. … John made mention of not wanting to take Justin to the hospital. … Because he did not want Justin to, he used the term 'snitch' on him."
Mr Robertson said he saw "a bit of blood" on the back of the deceased's head. The deceased was "motionless but still breathing". He described the offender as: "… very panicked and extremely agitated … His movements were very, his body movements were very stiff at the time. And he was making, he was doing like quick, quick two step laps in the hallway … John asked me to use the cricket bat …"
The reason the offender asked Mr Robertson to use the bat was, in Mr Robertson's words, "Because he thought I was a better swinger due to my cricket abilities". Mr Robertson said, "at first I just refused to do so, refused to use the cricket bat at the time. But John continued to say that he needed my help and that I could do it".
Mr Robertson took the cricket bat from the offender. He said, "I initially paused and waited. And then … at some point in time I proceeded to strike Justin … with the cricket bat". Mr Robertson gave evidence that he struck the deceased to his head, with the intention of killing him. He said that after the strikes, he "dropped the bat in the hallway and proceeded to … head towards the dining room couch and lie down on it". He believed that Mr Tsang was dead. He continued, "John was at the time trying to comfort me on the dining room couch". According to Mr Robertson, the offender said to him, "That I did good and that I did him a solid," meaning a favour.
Mr Hopkinson's account was that he saw the offender take Mr Robertson's cricket bat from the lounge room and hand it to Mr Robertson, saying "You're a better swinger, you should do it". Mr Robertson then struck the offender to his head with the cricket bat multiple times.
I am satisfied beyond reasonable doubt that the offender was already holding the cricket bat when Mr Robertson arrived at the hallway and at that time the offender had already rendered the deceased unconscious, likely by blows to his head, having regard to the evidence of Mr Robertson of blood in that area. I am unable to conclude beyond reasonable doubt that on that occasion the offender did so by using the cricket bat.
Mr Robertson said that, after a while, Mr Hopkinson came over to him in the dining room and told him that the deceased was still breathing. Mr Robertson got up, went to the kitchen and took a knife from a knife block, which had a blade about 15-20cm in length. He went to the hallway and crouched over the deceased, holding the knife "relatively close to his neck". He said: "[The deceased's] face was pointing towards the ceiling whilst he was on the floor. … I was about to stab Justin with the knife but through, I guess my inner conscience, I proceeded not to do so. … I proceeded to say that I couldn't do it and I … made to stand up. I believe John had taken the knife off me as I went back to the dining room."
Mr Robertson said that he returned to the couch and after about 20 minutes, he went upstairs to Mr Z's room. As he walked past Mr Tsang, he saw that he was dead. There was blood around his neck and on the floor. The offender and Mr Hopkinson were not there.
Mr Hopkinson's account was that he saw the offender go to the kitchen and return with a knife, which he gave to Mr Robertson. Mr Robertson hovered over the deceased with the knife which came within a few centimetres of Mr Tsang's neck, and then passed it to the offender, who used it to cut the deceased's throat, in the process, snapping the blade. The offender left the room and returned with another knife, with which he continued stabbing the deceased in his neck. Mr Hopkinson said that he made those observations from the top of the hallway staircase. In a conversation captured with a listening device on 25 March 2019, Mr Hopkinson is heard to tell Mr Z that Mr Robertson "poked" the deceased with a knife but "wasn't cutting". Mr Hopkinson said that he may have meant that Mr Robertson was "pointing" the knife. I am satisfied that Mr Robertson, not the offender, obtained the first knife from the kitchen, and that Mr Robertson was truthful and reliable in his evidence that he did not touch the deceased with a knife.
I am satisfied beyond reasonable doubt that the offender obtained the second knife and that he used both knives to stab the deceased in his throat, as described by Mr Hopkinson, and in the process, he snapped the blade of the first knife.

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

Mr Robertson said that when he entered Mr Z's room, he told him that Mr Tsang had died in the hallway; that he hit him in the head with a cricket bat and nearly stabbed him with a knife. Mr Z responded, "What the fuck, are you serious?". Mr Z said he then left his room and saw the offender sitting at the top of the staircase. While standing behind the offender, Mr Z could see the deceased's legs, "covered in cuts", protruding from a large mound of paper towels. He heard someone say, "Let the body sit to let the blood drain out". The offender demanded Mr Z's phone. Mr Z refused, but then complied when the offender repeated his demand more aggressively. Mr Z returned to his room.
Between 4:17pm and 4:20pm, there were three missed calls between Vincent Son Luc and Mr Z's phone, and at 4:21pm, an unanswered call from Mr Z's phone to Mr Ngo.
That afternoon after the killing, according to Mr Robertson, the offender went through Mr Tsang's bag and gave him Mr Tsang's earbuds and a chain. He also received a jacket that belonged to Mr Tsang. The offender, the co-offenders and Mr Z cooperatively took measures to clean up the scene of the killing of the deceased and obtain implements to bury his body. To that end, the offender and Mr Robertson drove in the BMW to a hardware shop and purchased a hoe, shovel, a black tarpaulin and duct tape, as well as an empty petrol cannister and garden gloves. The purpose of the petrol cannister was that the offender wanted the option of burning the body. The street CCTV captured the BMW leaving the street at 5:55pm and returning at 7:26pm. Hardware shop receipts corroborated the purchases. When they returned, the offender fell asleep in the BMW and could not be woken. He was carried inside to the lounge room and slept through until the next day. Mr Z assisted the others to carry the offender into the lounge room. In the dining room, he noticed that lying on a table was the handle of a kitchen knife with no blade.
That evening, Mr Z and Mr Robertson drove the deceased's body to the Blue Mountains in the BMW and buried it. The street CCTV recorded the BMW leaving at 9.15pm and returning at 1:30am.
Some time between 8pm and 10pm, Mr Y woke up. He played video games and went back to sleep between midnight and 1am, sleeping through until the following day. He and Mr Hopkinson had a conversation, but Mr Hopkinson did not tell him at that time what had occurred.

Wednesday 13 March 2019

The following morning, Mr Z went to work. That afternoon, he went to his parents' residence and told them what had happened. His parents arranged for him to speak with a lawyer that evening. Police were contacted and Mr Z agreed to assist the investigation by engaging in recorded conversations with the Burwood house occupants and the offender.
Mr X returned to the house that day, and around noon he, Mr Y and Mr Robertson drove to a shopping centre in the BMW where they parked. When they returned to the car with their purchases and opened the boot, they saw a duffle bag that belonged to the offender. A decision was made to look inside it. They found objects that belonged to Mr X and Mr Y, including missing mobile phones, a smart watch and Mr Z's missing foreign currency.
On their return to the Burwood house, they confronted the offender. He denied stealing the items, blaming "this kid", saying, "We killed a kid last night". He pointed to a wall and said, "There's specks of blood there". This was the first occasion that Mr X and Mr Y were made aware of the killing of the deceased. Mr X gave evidence that he did not believe what the offender had said. About an hour later, there was a conversation with the offender, Mr Y and Mr Hopkinson, in which the offender said that they had to keep throwing towels over the body and Mr Hopkinson said they had to get more towels from the kitchen. Mr Y asked, "Is this for real?". The offender said, "We had to kill him … [because] he was going to rat", and later, "I had to finish him off by stomping on his head with my shoe".

The evidence of Ms R

Ms R, who was a university student at the time of the offence, was a friend of the offender who had occasionally been with him at the Burwood house. She gave evidence that he picked her up at a location in a North-Western Sydney suburb in the BMW on the evening of the day following the murder, that is, Wednesday 13 March 2019. Excerpts of her evidence as to what the offender told her are as follows: "John said, 'I just killed a kid.' I did not believe him, obviously, and he said, 'What, you don't believe me?' And I said, 'Yeah, I don't.' Then he lifted up the pants ‑ the right pants leg and he showed me his ankle, his right ankle, and it was very swollen and bruised and John said, 'I got this from stomping on the kid's head.' … He started flexing his left arm and said, 'My arm's really sore from using a wrench to bash the kid.' … … He said … 'The kid was asking me to lean out on the couch while I was bashing him up.' He said, 'What the fuck, this kid is weird.' … John then said, 'His head was all caved in and there was stuff coming out of his nose.' … I asked him, 'Where did this happen?' I asked, 'In the living room?' And he said, 'No, in the corridor of the hallway.' … John said, 'The kid wouldn't stop talking, so I cut his throat.'"
Ms R said that the offender started making a gurgling noise, as if mocking the deceased. Ms R said the offender continued: "'I asked the other brothers to come help me clean up,' and they drove the body to the Blue Mountains. John said, 'I put on DEFQON [1] list so you couldn't hear the kid screaming.' … John said, 'I walked outside. There was blood all on my legs, but the neighbours didn't notice'."
I found Ms R to be a truthful and reliable witness as to what she recalled the offender told her. I am satisfied beyond reasonable doubt that the offender made the admissions recalled by Ms R and that they were truthful.
Mr T gave evidence that he became aware that the deceased was missing. He had a snapchat exchange with the offender a couple of days after 12 March 2019: "… he asked me to hang out and I said, 'No, I don't really want to go hanging out with people that other people go missing around,' and he responded, 'You little fucking mutt, you're just like him,' and he blocked me …"
Mr Z was interviewed by police on 18 March 2019. The following day, police retrieved the deceased's body from where it was buried in the Blue Mountains. The only clothing on the body was the deceased's underpants. A post-mortem, conducted two days later, determined that the direct cause of death was sharp force injury to his neck and blunt force injury to his head. The pathologist found a minimum of 22 sharp force injuries, which she classified as stab wounds, to the deceased's neck, which included his larynx and right carotid artery, and above his collar bone. The stab wound to the right carotid artery, which was almost severed entirely, was sufficient by itself to cause the deceased's death. There were multiple lacerations to his scalp and face, a fracture of the left side of his skull and bruises on the surface of his brain, and fractures of his nasal bone.
Toxicological analysis detected a potentially toxic blood level of methylamphetamine and its metabolite amphetamine, Alprazolam (which is the chemical component of Xanax), Diazepam and Nordiazepam, which is a metabolite of Diazepam, paracetamol, and a Delta‑9 tetrahydro cannabolic acid, which is a metabolite of cannabis.
As noted, Mr Z agreed to wear a covert listening device. He assisted police investigators by capturing conversations between the residents of the Burwood house and the offender. On 27 March 2019, the three offenders were arrested. The offender has been in custody for the offence since that time.
Mr Hopkinson's work boots were seized by police and forensically examined. A tape-lift from inside the heel of the left boot yielded a mixture of the profiles of at least three individuals, one of which could not be excluded as that of the offender. A profile obtained from the inside heel of the right boot was of a mixture that originated from at least four individuals, including the offender, Mr Hopkinson and the deceased. Mr Hopkinson gave evidence that the offender only wore his work boots on that occasion. Although the boots were described by Mr Z, who saw the boots in the house, and Mr Hopkinson as "steel capped", it transpired in cross-examination that they assumed that to be the case. There was no evidence that the boots in fact had metal caps. However, they were tendered and were substantial work boots of the type worn by labourers.
Examinations of blood from the exterior of the boots located a DNA profile from which the deceased could not be excluded in various locations on both boots, including one towards the toe of the left boot. However, it is not possible to conclude that the deceased's blood came to be on the exterior of the boots from being kicked, since it may have come to be there after the deceased was killed, as the wearer moved about the hallway with the deceased's blood on the floor.

Conclusions as to the offender's actions and role

In view of the jury being unable to reach a verdict on the first count, in the exercise of determining the facts for sentence for the offence of murder, I disregard the evidence of the detention of the deceased throughout the events of 12 March 2019, as well as the attempt that was made to use the deceased's detention to obtain money, as factors of aggravation.
I find that the offender was the instigator of the offence of murder, of which all three offenders have been convicted. The offender introduced the deceased to the household and was the only person there who knew him. Mr Robertson delivered blows to the deceased's head with a cricket bat. That directly contributed to his death and was done with the intention of killing the deceased, but was done only at the request of the offender. Mr Hopkinson did not directly assault the deceased, but was part of an extended joint criminal enterprise, the criminal enterprise being to detain the deceased for advantage. The offender was the dominant personality; he used the Burwood house, Mr Robertson's car and Mr Z's phone at will. He made all the relevant decisions that day leading up to and involving the act of killing, with the exception of Mr Robertson obtaining a knife from the kitchen, although Mr Robertson did not then use it.
I am satisfied that when Mr T informed the offender that he would not pay the sum of $500, the offender formed an intention to seriously assault the deceased, as evidenced by him telling the deceased that he would break his arms and asking if anyone knew an "abandoned location". I am satisfied that the purpose of that inquiry was to drive the deceased to a place where his screams, when assaulted, would not be heard. Within minutes of arriving back at the Burwood house, the offender had "soundproofed" the house for the same purpose.
In view of the objective evidence that the BMW arrived back in the street at 1:26pm and the calls made by the offender on Mr Z's phone shortly after the deceased was killed commenced at 4:17pm, I find that the deceased was assaulted by the offender altogether over a period of approximately two hours, which includes the intervening period in which Mr Robertson also assaulted the deceased.
I find that the offender's motive for the assaults, until the time that he formed the intention to kill the deceased, was anger that he had been directing towards the deceased since they were seated in the BMW in the front yard that morning, and revenge and frustration.
The offender did not make any attempt to obtain payment through the deceased after the unsuccessful attempt involving Mr T, so there is no suggestion that the offender's violence was motivated by a desire to obtain money.
The evidence to the effect that the offender may have stolen the missing property, so that the allegations he levelled against the deceased were a fabrication, is insufficient to allow that finding to be made to the requisite standard. Similarly, the evidence does not establish that the deceased in fact stole any property from the house.
The offender injured the deceased to such an extent that he realised he would need hospital treatment. The evidence of both Mr Robertson and Mr Z was that the offender said to them separately that the deceased could not be taken to hospital because he would "snitch" on him. I draw an inference from the offender's use of the word "snitch" in that context, of which I am satisfied beyond reasonable doubt, that he was concerned that he would likely be charged with assaulting the deceased if the deceased received medical attention and, therefore, the offender formed an intent to kill the deceased. His motive for the offence was to avoid being charged by police in relation to the assaults that he had perpetrated on the deceased up to the time of that decision.
I am satisfied beyond reasonable doubt that, having determined to kill the deceased, the offender attempted to do so by hitting him to the head with either the cricket bat or the wrench and by kicking or stomping on him. He called upon Mr Robertson to finish the process of killing the deceased, because of Mr Robertson's prowess as a grade cricketer with a bat. I am satisfied that, because the deceased was still breathing, the offender and no-one else stabbed the deceased in the area of his neck at least 22 times, snapping the blade of the first knife in the process. That act killed the deceased by almost severing his right carotid artery.

Objective seriousness

I find that the offence falls in the high range of objective seriousness. The killing of Mr Tsang was reprehensible in the extreme. It was premeditated, prolonged, callous and entirely unprovoked. There is an absence of remorse, not only evidenced by the offender's denial of committing the offence, but in his continued expressions of disgust and contempt for the deceased in the days following the killing; by mocking and belittling the deceased, in conversation with Ms R and by his dismissive comment to Mr T.

Relevant aggravating factors

The offence was committed with an intent to kill, rather than cause grievous bodily harm. I note the following aggravating factors, pursuant to s 21A(2) of the CSP Act. The offence had features of gratuitous cruelty: s 21A(2)(e). It involved the use of weapons: s 21A(2)(c). The offender used work boots, the cricket bat, the wrench and two knives as weapons in committing the offence. I regard the changing into work boots for the purpose of kicking and stomping on the offender as utilising them as a weapon. The offence was committed in company: s 21A(2)(e). The offender was on conditional liberty at the time: s 21A(2)(j).

Victim impact statements

Three victim impact statements, composed by the deceased's father and his two sisters, were read at the sentence hearing. His father referred to the joy his son had brought to his parents and sisters and his caring, sensitive nature. He referred to his son having struggled with depression, only recently making his way out of a long period of self-isolation, socialising with friends. 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. He has become withdrawn and often completely overwhelmed by their loss, finding it difficult to see a way forward in life when they are haunted by their son's tortured death. More than anything, he and his family have lost their sense of hope. I note that Justin's father often sat quietly at the back of the courtroom during these proceedings. I can only imagine how difficult that has been for him, listening to the evidence of what happened to his son.
One of the deceased's sisters wrote a statement, in which she referred to Justin's trust towards his friends and the goals he set in his life. She also talked about his struggles in adolescence and the shattering impact of his death on her family, now and for the rest of their lives. The deceased's other sister wrote a poem, purporting to be the imagined words of her beloved brother as he was brutally killed by people he thought were friends, without hope of rescue. It was an eloquent statement of her continuing agony.
On behalf of the Court and the community, I offer my condolences to Justin's parents, sisters and other members of his family, for their terrible loss.
Following an application by the prosecution, pursuant to s 30E(3) of the CSP Act, I consider it appropriate to take all three victim impact statements into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of the victim's death on the members of the victim's immediate family is an aspect of harm done to the community.

The offender's criminal record

The offender has a minor criminal record, comprising convictions for larceny (of a mobile phone), common assault and two driving offences, all committed in October 2018, and contravening an apprehended domestic violence order, committed in January 2019. At the time of the offence, the offender was on bail for these matters, thus activating s 21A(2)(j) of the CSP Act. For the larceny offence, which involved him stealing the mobile phone of a former girlfriend, he received a sentence of imprisonment of two months, commencing on 28 March 2019, which was the day after his arrest for this offence.

The offender's use of drugs

The offender was not a stranger to the ingestion of prohibited drugs, particularly Xanax. It was part of the basis of his friendship with the deceased. He gave evidence that he took two Xanax the night before the killing when in Mr Hopkinson's room. After he left the gym, he took "some MDMA". He said that at Campbelltown, he, Mr Pereira and the deceased "took some Xanax". He said that after the killing, he "had a few Xanax". I am satisfied that the offender had two Xanax tablets in Mr Hopkinson's room. As noted, the co-offenders gave evidence that the offender gave Xanax tablets to them? during the assault on the deceased in the afternoon. They did not give evidence that the offender also consumed Xanax at that point, but I accept he may have done so.
There was no evidence in the trial as to the effects of the drugs on the offender, other than that of the offender agreeing in cross-examination that, in a general sense, Xanax "slows you down". I note s 21A(5AA) of the CSP Act, that self-induced intoxication of an offender at the time of the offence is not a mitigating factor.

The offender's background and personal circumstances

The offender did not give evidence at his sentence hearing. He tendered a report by Dr Adam Martin, forensic psychiatrist, dated 5 October 2022, which provided some brief background information. He is a single child, born in Turkey, and migrated with his family to Germany when aged five. His parents separated when he was aged eight. His father re-married and then separated from his second wife. The offender came to Australia when aged 10 and was brought up by his extended family. At the time of the offence, he was unemployed and had a limited employment history. Prior to living in the Burwood house, he had been residing with his father. He denied any prior episodes of violence.
The offender's account of his drug history was that he first smoked cannabis at age 16, but not since. He used methamphetamine and MDMA sporadically from about the age of 18, sometimes daily. He used cocaine when he was aged 18 but did not continue to do so. He denied heavy alcohol consumption or problematic behaviours associated with alcohol.
Dr Martin's assessment as to the offender's mental state was made without corroborative medical information, relying entirely upon the offender's account. The offender described to Dr Martin long-term problems with impulsivity, emotional instability and problems controlling his behaviour, as well as educational disruption, with suspensions. He was expelled from school prior to completing his HSC.
Dr Martin noted that the offender reported having been diagnosed with attention-deficit hyperactivity disorder (ADHD) because of problems with concentration, organisation and impulsivity. A psychiatrist prescribed the psychostimulant Dexamphetamine to the offender when he was aged 18. At that time, he was also diagnosed as having a generalised anxiety disorder and depression, for which he was prescribed an anti-depressant and anti-anxiety medication for about two months.
Dr Martin concluded that the offender had described "long-term problems with emotional regulation" and a family history that suggested disrupted attachments which have likely been associated with his emotional and behavioural problems. Dr Martin said: "His criminal record demonstrates prior anti-social behaviour and the totality of the available information would be consistent with personality disorder, complicated by substance use disorder, on a background of adverse childhood experience, disrupted education and long-term problems with emotional regulation/behavioural control. ADHD is likely a manifestation of underlying developmental instability."
Dr Martin qualified this opinion by stating it was essentially a clinical impression and not based on formal psychometric testing. As to how the offender was coping in custody, he stated: "He describes coping reasonably well currently, given the constraints of custody. It is known that the COVID pandemic situation has been particularly difficult for inmates because of frequent lockdowns, isolation and limited capacity for visitors in person. However, he describes having engaged in TAFE study, achieving two Certificate II's and he is not currently experiencing major mental illness, is not engaged in psychiatric treatment, is in the main gaol population and has engaged in physical training. Undoubtedly, he has significant psychological vulnerability, based on his situation and circumstances of leading up to his incarceration, with a background of drug use and problems with social engagement. However, he did not give the impression of major psychiatric impairment currently or recently in his current circumstances. He will have access to emergency psychiatric treatment in custody. Following sentencing, I would speculate that he would be able to avail himself of custodial psychological programs around violence management and substance use, and in my view, these types of programs would be helpful in his case. He does not require psychiatric medication or hospitalisation at this time. In the longer term, he would benefit from appropriate drug and alcohol problems and psychological treatment, and it is the case that there is fairly limited capacity to engage in one-on-one psychological counselling in the custodial environment."
The offender also relies upon a clinical psychometric report dated 11 October 2017, based on an assessment performed a fortnight earlier, when he was aged 18, by a "provisional psychologist" but under the supervision of a clinical psychologist. The offender was referred by his psychologist for the purpose of ascertaining whether he had ADHD. I regard the report as being particularly of interest because it pre-dates his first encounter with the criminal justice system.
The offender informed the provisional psychologist that he was first assessed by a psychologist when he was aged 9 or 10, because of disruptive behaviour at school. That behaviour continued throughout his schooling. He was suspended for three weeks in Year 11 and expelled in Year 12 for a persistent failure to complete schoolwork. The offender recounted a history of having repeatedly sought professional (both psychological and psychiatric) help in dealing with his issues. One psychiatrist had provided Cognitive Behavioural Therapy, but he did not think it assisted him.
The provisional psychologist administered a number of psychological tests and formed a clinical assessment. She concluded that the offender's cognitive ability was in the low average to average range and that he experienced "inattentive and hyperactive/impulsive symptoms that fall within the clinical range" for ADHD.

Prospects of rehabilitation

The offender's prospects of rehabilitation are difficult to gauge. While his criminal history of a minor assault and no other prior history of violent behaviour are encouraging, the violence of the assaults and the fact and mode of killing of the deceased that afternoon remain essentially unexplained behaviour. I conclude that the offender's prospects of rehabilitation are guarded.

Relevant mitigating factors

The Crown accepted that there was no planning, and that the offence was not part of a planned or organised criminal activity. I note, however, that it was not spontaneous; there was a degree of premeditation. The offender's prior criminal record is sufficiently minor to warrant him being sentenced on the basis that he was previously of relatively good character. His youth (he was aged 19 at the time) is a mitigating factor.
The offender's mental condition is a mitigating factor. It is apparent from the psychologist's report that the offender had long-standing mental health issues that were sufficiently serious to destabilise his education and functioning in society. The diagnosis of ADHD was clearly a factor, and I note Dr Martin's diagnoses. I also note Dr Martin's opinion that the offender does not presently require treatment for his mental condition.

The offender's moral culpability

The offender's moral culpability is slightly reduced by his mental condition, but it remains high, having regard to the brutality of the killing, the fact that it was entirely unprovoked, the nature of the offender's motive and the fact that he invited and encouraged Mr Robertson to engage in the killing with him.

Other relevant considerations

The offender is presently aged 23. General and specific deterrence, the need for denunciation and the protection of the community are important considerations in the fixing of the appropriate sentence. No other sentence but a sentence of imprisonment is appropriate. The offence warrants a determinate sentence. I have regard to the standard non-parole period of 25 years as a guidepost. The principle of totality is to apply to the sentence the offender served for the offence of larceny, by commencing the sentence one month after the date of his arrest. The offender is to be advised of the matters required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW).

Special circumstances

I take the offender's mental condition into account as a special circumstance warranting a slight modification of the non-parole period in accordance with the principles enunciated in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. I also take into account that the offender, along with other prisoners, has endured the loss of privileges and the onerous conditions consequent to the COVID-19 pandemic.

Parity

There are relevant parities and disparities in the respective cases for the offender and each of the co-offenders. The co-offenders were sentenced on the basis that the detention formed part of the facts on sentence for the murder. That included the acts that, according to the evidence of Mr Hopkinson and Mr Z, were committed that morning in furtherance of the detention, to gain a financial advantage. That evidence is a matter of disparity with the relevant facts for the sentence of the offender.

Mr Robertson

The starting point for the fixing of the sentence of Mr Robertson was 24 years. Relevant disparities between the case of Mr Robertson and the offender are that there were findings that Mr Robertson was genuinely remorseful, he did not have any drug or alcohol issues, he had high prospects of rehabilitation (he gave sworn evidence at the sentence hearing), he was of prior good character, there was no element of premeditation, there was a degree of non-exculpatory duress, he was exceptionally immature and he faces danger of physical retribution in prison. I also note that he was slightly younger than the offender. The objective seriousness of his offence was above mid-range and significantly higher than that of Mr Hopkinson.

Mr Hopkinson

The starting point for the fixing of the sentence of Mr Hopkinson was 17 years. Relevant findings of fact included that, if it was not for the offender, the offence would not have been committed. Mr Hopkinson was developmentally immature and was suffering a persistent depressive disorder. He was genuinely remorseful. The objective seriousness of his offence was mid-range. He had an alcohol use disorder. He did not have substantial family support.

Sentence

I impose a non-parole period of 24 years and a balance of term of 11 years, being a total sentence of 35 years. The sentence is backdated to commence from 27 April 2019. The first date on which the offender will be eligible for release is 26 April 2043. The total sentence will expire on 26 April 2054.

Endnote

Ms Wong explained that DEFQON is a hard-core music festival. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2023

(Crimes (Sentencing Procedure) Act 1999(NSW)

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