R v Milat & Klein - [2012] NSWSC 634

Supreme Court

New South Wales

Medium Neutral Citation: R v Milat & Klein [2012] NSWSC 634
Hearing dates: 21, 22, 25, 28 May 2012
Decision date: 08 June 2012
Jurisdiction: Common Law - Criminal
Before: Mathews AJ
Decision:
Milat: Imprisonment for 43 years with a non-parole period of 30 years.
Klein: Imprisonment for 32 years with a non-parole period of 22 years.

Catchwords: CRIMINAL LAW - murder - sentence after plea of guilty - co-offenders - objective seriousness - actual use of a weapon - committed in company - gratuitous cruelty - premeditated killing - Crimes (Sentencing Procedure) Act 1999 s 61 - person less than 18 years of age at time of the offence - circumstances where no discount for a plea of guilty is appropriate - whether there was an agreement to murder.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Elfar [2003] NSWCCA 358
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Category: Sentence
Parties: Regina
Matthew Stephen Milat
Cohen Klein
Representation: Counsel:
Mr L Babb SC (Crown)
Mr J Stratton SC (Milat)
Mr G Corr (Klein)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid Commission NSW (Milat)
Matthew Trevillion (Klein)

File Number(s): 2010/388148 2010/388542

Judgment

Introduction

Matthew Milat and Cohen Klein have both pleaded guilty to a charge that on 20 November 2010 they murdered David Auchterlonie.

At the time of the offence Matthew Milat was approximately one month short of 18 years old, and Cohen Klein had turned 18 two months earlier. Because of Milat's age at that time, the provisions of the Children (Criminal Proceedings) Act 1987 ("the Children C P Act") apply in relation to the case against him. Nevertheless, at the outset of the proceedings I made an order authorising the publication and broadcasting of his name. The case had already attracted a considerable amount of publicity in which his name had been openly ventilated. Moreover, as will emerge later, the fact that his surname is Milat is relevant to some aspects of the offence, and therefore to the sentencing process. Accordingly, taking into account the seriousness of the offence, I considered that it was appropriate to make an order under s 15C(2) of the Children C P Act. Indeed Mr Stratton SC, who appeared for Milat, did not oppose the making of such an order.

A number of factual issues arose during the sentencing proceedings, some of them relating to matters which are central to the sentencing process. The most significant of these relates to the extent to which the offence was premeditated by each of the offenders. I propose first to set out the facts of the case that are not in dispute. Then I will discuss the disputed issues and make my findings in relation to each of the offenders separately. After that I will deal with the other matters which are relevant to…

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 R v Milat & Klein

Details

AGLC: R v Milat and Klein [2012] NSWSC 634
Case: [2012] NSWSC 634
Decision Date: 08 June 2012

CaseChat Overview and Summary

The defendants, Milat and Klein, were found guilty of the murder of a young person and subsequently pleaded guilty to the charges. The court was required to determine the appropriate sentence for the crimes committed by the defendants. The legal issues that needed to be addressed included the objective seriousness of the crimes, the actual use of a weapon, the fact that the crimes were committed in company, the gratuitous cruelty exhibited, and the premeditated nature of the killings.

The court considered the provisions of the Crimes (Sentencing Procedure) Act 1999, specifically section 61, which outlined the factors to be taken into account when determining the sentence for the crimes. The court also examined the circumstances in which a discount for a plea of guilty would not be appropriate. Furthermore, the court had to determine whether there was an agreement to murder and whether the victim was less than 18 years of age at the time of the offence.

In reaching its decision, the court found that the crimes were of extreme objective seriousness, and the use of a weapon, along with the gratuitous cruelty and premeditation, further exacerbated the severity of the offences. The court determined that, due to the heinous nature of the crimes and the lack of remorse shown by the defendants, a discount for a plea of guilty was not appropriate. The court also found that there was an agreement to murder and that the victim was less than 18 years of age at the time of the offence. As a result, the court imposed the most severe sentence available under the law, reflecting the gravity of the crimes committed.

Orders