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Supreme Court 8 June 2012

R v Milat & Klein

[2012] NSWSC 634

Homicide
CRIMINAL LAW MURDER SENTENCE AFTER PLEA OF GUILTY OFFENDERS OBJECTIVE SERIOUSNESS ACTUAL USE OF A WEAPON

Citation: R v Milat & Klein [2012] NSWSC 634
Court: Supreme Court of New South Wales
Date: 8 June 2012
Judge(s): Mathews AJ

Background

On 20 November 2010, the 17th birthday of David Auchterlonie, two co-offenders lured him to the Belanglo State Forest in New South Wales under the pretence of drinks and socialising. One offender was Matthew Milat, who was approximately one month short of 18 years old at the time. The other was Cohen Klein, who had turned 18 two months earlier. A third person, Chase Day, was also present but was not charged with murder.

In the forest, Milat struck the deceased with a double-bladed axe that had been stored in the boot of his car. A mobile phone recording captured the 14 minutes leading up to the death, including the deceased's desperate attempts to escape and placate Milat before Milat struck him in the back of the head with the axe, killing him instantly. The deceased's body was concealed under branches. Both offenders subsequently pleaded guilty to murder.

The sentencing proceedings required the court to resolve several contested factual issues, most significantly the degree to which each offender had premeditated the killing. The degree of premeditation bore directly on the objective seriousness of each offender's conduct and the appropriate sentence.

  • To what extent was the murder premeditated by each offender, and what conversations earlier in the day established prior planning?
  • Whether Klein had agreed in advance to the murder or was taken by surprise when Milat attacked the deceased
  • How to apply the standard non-parole period for murder under the Crimes (Sentencing Procedure) Act 1999 to each offender, including any departure from that period
  • Whether either offender was entitled to a discount on sentence for their pleas of guilty
  • How the youth of the offenders, and Milat's status as a person under 18 at the time of the offence, bore on the sentencing exercise
  • Whether special circumstances justified departing from the statutory ratio between non-parole period and balance of term

Decision

Mathews AJ made detailed findings on premeditation after reviewing the mobile phone recording and witness evidence about statements made by Milat during the day. The court found that Milat had clearly and repeatedly stated, in Klein's presence, that they intended to go to Belanglo that night and kill someone. The court was satisfied Milat committed the murder with a high degree of premeditation: he had selected the location, lured the deceased there, brought an axe, and recorded boastful statements about the killing the following day, explicitly invoking the Milat family name.

The court's findings on Klein's state of knowledge were more nuanced. The recording captured Klein inside the car with Day while the attack occurred outside, and the court analysed the conversations between Klein and Day to assess whether Klein had prior knowledge of the plan. The court ultimately made findings about the extent of Klein's involvement and prior knowledge that resulted in a significantly lower sentence than Milat's, reflecting his lesser culpability.

On the question of guilty plea discounts, the court considered the circumstances of each offender. The existence of the mobile phone recording, which captured the killing in audio detail and provided overwhelming evidence of guilt, was a central factor in assessing the utilitarian value of each plea.

Regarding the standard non-parole period of 20 years for murder, the court considered the objective gravity of the offence, noting aggravating features including use of a weapon, commission in company, and gratuitous cruelty. The court also took into account the youth of both offenders and their lack of prior criminal history. Special circumstances were accepted for both offenders on account of their youth, the fact that this was their first term of imprisonment, and the anticipated need for extended supervision upon release. The court departed upward from the standard non-parole period for Milat and set a lower non-parole period for Klein, reflecting the differential in their culpability.

Orders Made

  • Matthew Milat: sentenced to imprisonment with a non-parole period of 30 years, commencing 22 November 2010 and expiring 21 November 2040; balance of term of 13 years, expiring 21 November 2053; earliest parole eligibility 21 November 2040.
  • Cohen Klein: sentenced to imprisonment with a non-parole period of 22 years, commencing 22 November 2010 and expiring 21 November 2032; balance of term of 10 years, expiring 21 November 2042; earliest parole eligibility 21 November 2032.

Key Takeaways

  • Sentencing co-offenders for the same murder does not require identical sentences; the court conducted a separate analysis of each offender's degree of premeditation and role in the killing, resulting in materially different non-parole periods.
  • A mobile phone recording made by one of the offenders during the lead-up to the killing constituted powerful evidence bearing on both the circumstances of the offence and the assessment of utilitarian value of guilty pleas.
  • Under the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period for murder operates as a reference point rather than a mandatory minimum; the court may depart from it, upward or downward, based on the objective seriousness of the particular offence and relevant offender characteristics.
  • Youth at the time of the offence, first-time imprisonment, and the need for extended post-release supervision were each accepted as special circumstances justifying departure from the statutory ratio between the non-parole period and the balance of the term.
  • Where an offender's surname is directly relevant to the circumstances of the offence, that connection may factor into the sentencing court's assessment of objective seriousness, as it did here given Milat's explicit invocation of his family name in connection with the killing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 61
- Children (Criminal Proceedings) Act 1987 (NSW), including s 15C(2)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Elfar [2003] NSWCCA 358