Citation: R v Perish; Perish & Lawton [2012] NSWSC 355
Court: Supreme Court of New South Wales
Date: 13 April 2012
Judge(s): Price J
Background
A jury found Anthony John Perish and Matthew Robert Lawton guilty of the murder of Terrence Falconer, committed on or about 16 November 2001. All three offenders, including Andrew Michael Perish, were also found guilty of conspiring together to murder Mr Falconer between 1 January and 17 November 2001.
The conspiracy arose from the unsolved 1993 murders of the Perish brothers' grandparents. Anthony and Andrew Perish came to believe that Mr Falconer was responsible for those murders. Andrew Perish had an additional motive: he had been shown a document indicating that Mr Falconer was prepared to assist police as an informer against the Rebels motorcycle club, of which Andrew had been a member.
The plan involved using a boat to collect Mr Falconer's dismembered body and dispose of the remains at sea. A key Crown witness, referred to as [A], gave evidence of being recruited to provide his boat for that purpose and of receiving money and a mobile phone in preparation for the operation. Matthew Lawton's role included driving Anthony Perish to meetings and delivering the mobile phone to [A].
Legal Issues
- What sentences were appropriate for each offender, given that the offences occurred in 2001 and sentencing practice as at the date of the offences applied?
- Whether the standard non-parole period provisions (Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999) applied, given those provisions commenced after the offences were committed.
- Whether "special circumstances" existed to justify non-parole periods of less than three-quarters of the total sentence term for any offender.
- How the principle of totality applied to Andrew Perish's sentence, given he had been serving sentences imposed in the District Court.
Decision
Price J sentenced each offender in accordance with sentencing practice as it stood at the date the offences were committed in 2001, consistent with the Court of Criminal Appeal's approach in R v MJR. The standard non-parole period provisions that came into force on 1 February 2003 did not apply, although ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 did.
His Honour determined the relevant facts for sentencing consistently with the jury's verdicts, applying the standard of beyond reasonable doubt for findings adverse to the offenders, and the balance of probabilities for matters of mitigation, following R v Isaacs and R v Pilley.
Anthony Perish, as the principal organiser of the murder, received the heaviest sentence. His Honour found he conceived and drove the conspiracy, sourced the police document identifying the deceased as an informer, and directed the disposal of the body. Lawton's role as driver and logistics support, and Andrew Perish's role in the conspiracy (without participation in the murder itself), were reflected in proportionately lower sentences.
On totality, His Honour was satisfied that accumulating Andrew Perish's sentence from 4 October 2010 (the date he became eligible for parole on earlier District Court sentences) adequately reflected the criminality of the conspiracy and produced a just aggregate sentence. No special circumstances were found for any offender that would justify a non-parole period below three-quarters of the head sentence.
Orders Made
- Anthony John Perish (murder): imprisonment for 28 years; non-parole period of 21 years.
- Anthony John Perish (conspiracy to murder): imprisonment for 10 years; non-parole period of 7 years 6 months.
- Matthew Robert Lawton (murder): imprisonment for 20 years commencing 27 January 2009, expiring 26 January 2029; non-parole period of 15 years, expiring 26 January 2024.
- Matthew Robert Lawton (conspiracy to murder): imprisonment for 10 years commencing 27 January 2009, expiring 26 January 2019; non-parole period of 7 years 6 months, expiring 26 July 2016. Earliest parole eligibility: 26 January 2024.
- Andrew Michael Perish (conspiracy to murder): imprisonment for 12 years commencing 4 October 2010, expiring 3 October 2022; non-parole period of 9 years, expiring 3 October 2019. Earliest parole eligibility: 3 October 2019.
Key Takeaways
- Sentencing for offences committed before legislative amendments must apply the sentencing practice in force at the time of the offence, not the practice prevailing at the date of sentence: the Supreme Court followed R v MJR in holding that the standard non-parole period regime did not apply.
- Facts adverse to an offender at the sentencing stage must be established beyond reasonable doubt, while mitigating matters need only be proved on the balance of probabilities, consistent with R v Isaacs and R v Pilley.
- A significant disparity in sentence between co-offenders is appropriate where their roles differ materially: the principal organiser of a murder received a substantially longer head sentence than the offender whose involvement was limited to the conspiracy and logistical assistance.
- Under the totality principle, where an offender is already serving sentences from other proceedings, accumulation from the point of first parole eligibility on those earlier sentences may properly reflect the overall criminality without producing a crushing sentence.
- No special circumstances were established for any of the three offenders, with the result that non-parole periods were fixed at three-quarters of the respective head sentences in each case.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44; Part 4 Division 1A
Cases
- R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
- R v Isaacs (1997) 41 NSWLR 374
- R v Pilley (1991) 56 A Crim R 202
- Barlow v R [2008] NSWCCA 96
- Knight v The Queen (2006) 164 A Crim R 126
- R v Bowey (unrep, 22/7/91, NSWCCA)
- R v Hutchins (1958) 75 WN (NSW) 75
- R v Previtera (1997) 97 A Crim R 76
- R v Smith (1987) 44 SASR 587
- R v Swan [2006] NSWCCA 47
- R v Mitchell [2007] NSWCCA 296
- Mill v The Queen (1988) 166 CLR 59
- Johnson v The Queen (2004) 78 ALJ 616