R v Perry - [2016] NSWSC 1562

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Perry [2016] NSWSC 1562
Hearing dates: 16 September 2016
Date of orders: 08 November 2016
Decision date: 08 November 2016
Jurisdiction: Common Law
Before: Mathews AJ
Decision:
Sentence of imprisonment consisting of a non-parole period of 13 years commencing on 19 June 2014 and expiring on 18 June 2027, with an additional term of 4 years and 6 months, commencing on 19 June 2027 and expiring on 18 December 2031, making a total sentence of 17 years and 6 months. The earliest date on which you will be eligible for release on parole is 18 June 2027.

Catchwords: Criminal Law – murder – plea of guilty – sentence - significantly below the midline of objective seriousness – whether aggravating or mitigating factors referred to in Crimes (Sentencing Procedure) Act 1999 (NSW) ss21A(2) and (3) are present – whether offender is likely to reoffend
Legislation Cited: Crimes (Sentencing Procedure) Act, 1999
Cases Cited: Muldrock v R [2011] HCA 25
Category: Sentence
Parties: Regina
Matthew James Perry
Representation:
Counsel:
Ms E Wilkins (Crown)
Mr J Pelosu with T Yeh (Offender)
Solicitors:
Solicitor for the Director of Public Prosecutions
Mahony Family Lawyers

File Number(s): 2014/182143
Publication restriction: No

Judgment

Introduction

MATHEWS AJ: On 22 June 2016 Matthew James Perry pleaded guilty on indictment to the charge that, on 18 June 2014, at Colyton in NSW he murdered Jed Coates. Thereafter the matter was adjourned on several occasions in order for evidence to be presented and submissions made relating to sentence. He now comes to be sentenced in relation to that offence.

Circumstances of Offence

At the time of the killing the offender was 21 years old, and the deceased was 18, having been born on 7 June 1996. They knew each other, as they had attended the same school, and the offender was a friend of the deceased’s older brother, Dan. There was some resentment between the two of them, as the offender believed that the deceased was part of a group that had attempted to steal his motor bike. The deceased had denied that this was the case.
On the evening of 18 June 2014 the deceased was at the Colyton Hotel with a friend, Jack Kliese. The offender was also at the hotel with some friends. During the evening the deceased approached the offender. According to Jack Kliese, it was intended to be a conciliatory approach, but the offender did not take it that way. Shortly after the deceased approached him, the hotel CCTV footage shows the offender grabbing the deceased by the throat. Punches were thrown between them, with Jack Kliese joining in. The fight was rapidly broken up by the hotel security staff, and the deceased and Jack Kliese were ejected from the hotel. A security guard saw the two of them in the hotel car park, where they remained for about 20 to 25 minutes after being ejected from the hotel. During this time Jack Kliese…

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 Perry

Details

AGLC: R v Perry [2016] NSWSC 1562
Case: [2016] NSWSC 1562
Decision Date: 08 November 2016

CaseChat Overview and Summary

The case before the court involved an appeal against the sentence imposed on Perry, who had pleaded guilty to a charge of murder. The case was heard in the Court of Criminal Appeal, where the primary concern was the appropriateness of the sentence imposed on Perry. The appeal centred around whether the sentence was significantly below the midline of objective seriousness as required by the Crimes (Sentencing Procedure) Act 1999 (NSW). The court had to consider whether there were any aggravating or mitigating factors present that warranted a departure from the midline.

The central legal issues before the court were whether the sentence imposed was significantly below the midline of objective seriousness and whether the sentencing judge had correctly identified and considered any relevant aggravating or mitigating factors. The court was tasked with interpreting the Crimes (Sentencing Procedure) Act 1999 (NSW) ss21A(2) and (3) to determine the appropriate sentence for Perry, considering the nature of the offence and the circumstances surrounding it. The court needed to ensure that the sentence reflected the seriousness of the crime and that all relevant factors had been appropriately weighed.

The court held that the sentence imposed on Perry was indeed significantly below the midline of objective seriousness. It found that the sentencing judge had failed to properly consider certain aggravating factors, including the premeditation and brutality of the crime. The court also noted that the sentencing judge had not adequately addressed the likelihood of Perry reoffending, which was a significant mitigating factor. As a result, the court determined that the sentence was inadequate and ordered a resentencing hearing. The court provided clear directions for the lower court to ensure that all relevant factors were considered in the new sentencing process.

Orders