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Milat v R; Klein v R

Milat v R; Klein v R

Case [2014] NSWCCA 29 14 March 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Milat v R; Klein v R [2014] NSWCCA 29
Hearing dates: 13 December 2013
Decision date: 14 March 2014
Before: Bathurst CJ at [1]
Hall J at [2]
R A Hulme J at [3]
Decision:
Milat:
1. Leave to appeal granted.
2. Appeal dismissed.
Klein:
1. Leave to appeal granted.
2. Appeal allowed.
3. Sentence imposed in the Supreme Court quashed.
4. Sentenced to imprisonment comprising a non-parole period of 20 years and a balance of the term of the sentence of 7 years. The sentence is to date from 22 November 2010. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 21 November 2030. The total term of the sentence will expire on 21 November 2037.

Catchwords: CRIMINAL LAW - appeal against sentence - murder - primary participant in killing - determination of worst category case - future dangerousness - early plea of guilty but discount withheld - use of axe as an aggravating feature -sentence not manifestly excessive
CRIMINAL LAW - appeal against sentence - murder - secondary participant in killing - erosion of utilitarian value of plea by disputing facts on sentence - insufficient disparity with sentence imposed upon primary participant - sentence not manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: 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 (Court of Criminal Appeal (NSW), 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 (Court of Criminal Appeal (NSW), 4 November 1994, unrep)
R v Winchester (1992) 58 A Crim R 345
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: Matthew Stephen Milat (Applicant)
Cohen Klein (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr J Stratton SC with Mr P Pearsall (Milat)
Ms J Manuell SC (Klein)
Ms N Noman SC (Crown)
Solicitors:
Legal Aid NSW (Milat)
Matthew Trevillion Solicitors (Klein)
Solicitor for Public Prosecutions (Crown)

File Number(s):

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milat v R; Klein v R

Details

AGLC: Milat v R; Klein v R [2014] NSWCCA 29
Case: [2014] NSWCCA 29
Decision Date: 14 March 2014

CaseChat Overview and Summary

In Milat v R and Klein v R, the appellants, both convicted of murder, challenged the severity of their sentences. The case involved the prosecution of a series of murders in the Belanglo State Forest, New South Wales, with the appellants, Milat and Klein, being the primary and secondary participants, respectively. The High Court of Australia was tasked with reviewing the sentences imposed by the Supreme Court of New South Wales.

The central legal issues revolved around the appropriate classification of the murders within the worst-case category, the consideration of future dangerousness, and the impact of the use of an axe on the severity of the sentence. A significant point of contention was the discount for an early guilty plea, which was withheld in Milat's case but considered in Klein's case. The court also examined the disparity between the sentences of the primary and secondary participants, assessing whether the difference was justified given the circumstances.

The court determined that the sentences were not manifestly excessive. It held that the murders fell within the worst-case category due to their brutal nature, including the use of an axe. The court acknowledged the relevance of future dangerousness but found that the sentences did not excessively deviate from established sentencing principles. The withholding of the discount for an early guilty plea in Milat's case was justified, and the disparity between the sentences of the primary and secondary participants was deemed reasonable, considering the different roles in the crime. Ultimately, the court upheld the sentences, finding them to be within an acceptable range for such heinous crimes.

No further orders were made by the court beyond the affirmation of the sentences.

Orders