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17
Court of Criminal Appeal 14 March 2014

Milat v R; Klein v R

[2014] NSWCCA 29

Homicide
CRIMINAL LAW APPEAL AGAINST SENTENCE MURDER PRIMARY PARTICIPANT IN KILLING DETERMINATION OF WORST CATEGORY CASE FUTURE DANGEROUSNESS

Citation: Milat v R; Klein v R [2014] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 14 March 2014
Judges: Bathurst CJ, Hall J, R A Hulme J (judgment delivered by R A Hulme J)

Background

On 20 November 2010, two applicants, referred to here as the primary offender and the secondary offender, murdered a 17-year-old in the Belanglo State Forest. The killing was planned. The primary offender struck the victim with a double-headed axe, threatened him as he pleaded for his life over more than ten minutes, and ultimately delivered a fatal blow to the rear of the skull. The secondary offender used his mobile phone to record the events.

In the Supreme Court, Mathews AJ sentenced the primary offender to 43 years with a non-parole period of 30 years, and the secondary offender to 32 years with a non-parole period of 22 years. Both sought leave to appeal against the severity of those sentences.

The victim was a child under 18, triggering the standard non-parole period of 25 years under the Crimes (Sentencing Procedure) Act 1999 (NSW). The primary offender was 17 years and 11 months old at the time, placing him just below the threshold age at which the standard non-parole period applies. The secondary offender was 18 years and 2 months and was subject to the standard.

  • Whether the sentencing judge erred in characterising the primary offender's conduct as among the worst category of murder cases
  • Whether the sentencing judge erred in taking future dangerousness into account when setting the primary offender's sentence
  • Whether the sentencing judge was correct to withhold any discount for the primary offender's early plea of guilty
  • Whether the use of an axe was properly treated as an aggravating feature
  • Whether the primary offender's sentence was manifestly excessive
  • Whether the secondary offender's utilitarian plea discount was correctly reduced because he disputed the facts at sentence
  • Whether there was an unjustifiable disparity between the sentences imposed on the two offenders
  • Whether the secondary offender's sentence was manifestly excessive

Decision

Primary offender (Milat): The Court of Criminal Appeal upheld the sentencing judge's finding that this was a worst-category murder. The premeditation, prolonged nature of the attack, the victim's pleas for mercy, the use of the axe, and the offender's evident enjoyment of the episode all supported that characterisation. The Court confirmed that future dangerousness, evidenced by the offender's fascination with violence and statements made before and after the killing, was a permissible sentencing consideration within the existing authorities. No error was found in the withholding of the guilty plea discount, given evidence suggesting the plea was forensically motivated rather than a genuine expression of remorse. The appeal was dismissed.

Guilty plea discount withheld: The sentencing judge declined to apply any utilitarian discount to the primary offender's sentence, citing conduct suggesting the plea was not entered out of remorse and that the offender had obtained tactical benefits from the timing. The Court of Criminal Appeal found no error in this approach, noting that while an early plea ordinarily warrants a discount, the utilitarian value can be diminished or withheld where the circumstances so warrant.

Secondary offender (Klein): The court found that the sentencing judge had correctly reduced the secondary offender's plea discount because he had disputed significant factual matters at sentence, eroding the utilitarian value of the plea. The court accepted that the secondary offender played a lesser role than the primary offender and had not personally wielded the axe. However, his role in planning, luring the victim, recording the killing, and providing encouragement during the attack made it a serious case of secondary participation.

Disparity and resentencing: The Court found a degree of unjustifiable disparity in the relationship between the two sentences as structured. On reconsidering the secondary offender's sentence, the Court applied a 25 per cent utilitarian discount to a notional starting figure, arriving at a head sentence of 27 years. After recalibrating the non-parole period to reflect a minimum term that justice required, a non-parole period of 20 years was imposed. The secondary offender's appeal was allowed on this basis only.

Orders Made

Primary offender (Milat):
- Leave to appeal granted
- Appeal dismissed

Secondary offender (Klein):
- Leave to appeal granted
- Appeal allowed
- Sentence imposed in the Supreme Court quashed
- Re-sentenced to imprisonment with a non-parole period of 20 years and a balance of term of 7 years, commencing 22 November 2010
- Eligible for release on parole on 21 November 2030; total sentence to expire 21 November 2037

Key Takeaways

  • A sentencing court may legitimately consider future dangerousness as part of the sentencing exercise, provided it is based on established facts rather than speculation, and is applied within accepted principles rather than as a discrete sentencing purpose.

  • The utilitarian value of a guilty plea can be reduced or entirely withheld where the circumstances suggest the plea was forensically motivated or where the offender has obtained other tactical advantages from its timing.

  • Where an offender disputes facts at a sentence hearing, the erosion of the utilitarian value of the plea is a recognised and permissible sentencing consideration; the Court of Criminal Appeal confirmed this principle applied to the secondary offender here.

  • In dismissing the primary offender's appeal, the Court confirmed that the use of a weapon such as a double-headed axe, in the particular circumstances of this case, was properly treated as an aggravating feature even though weapons are commonly involved in murders.

  • Sentencing disparity between co-offenders must be justifiable by reference to their respective roles and moral culpability; a difference in the structural relationship between the sentences, not merely the absolute figures, can constitute an error warranting resentencing on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1), 19A
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A (Table, item 1B), ss 44(1), 54D(3)

Cases:
- Elyard v R [2006] NSWCCA 43
- Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Power v The Queen (1974) 131 CLR 623
- R v AB [2011] NSWCCA 229
- R v Corrie Loveridge; R v AB [2013] NSWSC 1591
- R v El-Andouri [2004] NSWCCA 178
- R v Garforth (NSW CCA, 23 May 1994, unrep)
- R v Kalache [2000] NSWCCA 2
- R v Milat & Klein [2012] NSWSC 634
- R v Robinson [2002] NSWCCA 359
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589
- R v Stani-Reginald [2013] NSWSC 567
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Twala (NSW CCA, 4 November 1994, unrep)
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