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Supreme Court 5 August 2016

R v Perkins

[2016] NSWSC 1080

Homicide
CRIMINAL LAW REMARKS ON SENTENCE OFFENDER PLEADED GUILTY TO MURDER MULTIPLE STAB WOUNDS TO THE DECEASED INTENTION TO KILL NO PRIOR CRIMINAL RECORD

Citation: R v Perkins [2016] NSWSC 1080
Court: Supreme Court of New South Wales
Date: 5 August 2016
Judge(s): Button J

Background

The offender, a young man of nearly 19, pleaded guilty to murdering an 18-year-old on the night of 13 February 2014 at Niagara Park on the NSW Central Coast. The deceased had arrived at the offender's home in the early hours of the morning to collect his girlfriend after a social gathering involving alcohol and cannabis. A confrontation earlier that evening, stemming from the deceased discovering his girlfriend's infidelity, had already produced threats and aggression.

Shortly before the killing, both the offender and his co-offender stated they were going to kill the deceased. The offender retrieved a large kitchen knife, walked out to the street, and stabbed the deceased multiple times as he sat in his car with his seatbelt on. The deceased was unarmed, confined, and unable to defend himself. He died at the scene.

Police arrested the offender concealing himself in the backyard shortly afterwards. He gave a recorded interview in which he told a number of exculpatory lies. He had been in custody since that night.

  • Whether the offender intended to kill the deceased, or only intended to inflict grievous bodily harm, and at what point that intention was formed
  • Whether the guilty plea and other subjective factors (youth, remorse, rehabilitation prospects, intoxication, and absence of prior criminal history) warranted a departure below the standard non-parole period of 20 years
  • How to approach and apply the victim impact statements in accordance with established principle

Decision

Intention to kill. Button J was satisfied beyond reasonable doubt that the offender intended to kill the deceased at the time of the attack, and that this intention was formed before he left the house. The combination of factors was compelling: both the offender and his co-offender had stated they intended to kill the deceased; the offender deliberately armed himself with a large knife; and the nature of the wounds inflicted, particularly one of such force it nearly protruded through the deceased's back, was inconsistent with a mere intention to frighten or cause grievous bodily harm. The court rejected the offender's claim that he took the knife only to scare the deceased.

Objective seriousness. The offence was treated as serious. The deceased was unarmed, seatbelted, and entirely vulnerable. The attack was characterised as merciless. The offender had sent a threatening Facebook message to the deceased earlier that evening and subsequently attempted to hide and lied to police. These were aggravating features.

Subjective factors. Button J identified significant mitigating circumstances. The offender was very young, had no prior criminal record, showed genuine remorse (supported by psychological evidence), and had good prospects of rehabilitation. He had been significantly intoxicated at the time. The guilty plea, entered on the eve of trial, still warranted a discount, though a more limited one than an early plea would have attracted. The court reduced the head sentence from what would otherwise have been 23 years to 20 years and 6 months to reflect the plea. The standard non-parole period of 20 years served as a guidepost, but the court found it appropriate to set the non-parole period below that figure at 15 years, given the combination of subjective mitigating factors.

Victim impact statements. Button J considered the victim impact statements in accordance with the principles in R v Previtera (1997) 94 A Crim R 76, noting that no application had been made under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court acknowledged the profound and lasting harm caused to the deceased's family and extended condolences on behalf of the Supreme Court.

Orders Made

  • The offender was convicted of murder.
  • Head sentence of imprisonment for 20 years and 6 months.
  • Non-parole period of 15 years, commencing 13 February 2014, expiring 12 February 2029.
  • Parole period of 5 years and 6 months, expiring 12 August 2034.

Key Takeaways

  • Button J confirmed that an intention to kill can be established beyond reasonable doubt from circumstantial evidence, including the nature and severity of wounds, even where the offender claims his initial purpose was only to intimidate.
  • A guilty plea entered on the eve of trial still attracts a sentencing discount, though a reduced one compared to an earlier plea; here the head sentence was reduced from 23 years to 20 years and 6 months.
  • Under the sentencing framework applied, the standard non-parole period of 20 years for murder functioned as a guidepost rather than a fixed minimum, allowing the court to set a non-parole period below that figure where substantial mitigating factors existed.
  • Youth, an absence of prior criminal history, genuine remorse, and good rehabilitation prospects were all treated as relevant mitigating factors capable of significantly influencing the sentence, even in a case of intentional killing with aggravating features.
  • Victim impact statements were received and considered in accordance with R v Previtera, with the court noting that no specific application under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been made.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(3)(i), 21A(5AA), 28(4)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- R v Previtera (1997) 94 A Crim R 76