R v Coghlan [2019] VSC 543

1 Matthew William Coghlan, you have pleaded guilty to the murder of Felk Repia on 30 April 2018, and have admitted prior convictions contained on a Criminal Record filed in this matter.

2 The particular charge of murder to which you pleaded guilty was laid under s 3A of the Crimes Act 1958. The maximum penalty for murder, whether at common law or under s 3A, is life imprisonment.

3 Murder is a standard sentence offence with a standard sentence of 25 years.

4 Mr Repia was born in New Zealand in 1982. He was 36 years old at the time of his death. He moved to Australia in 2015 and lived in various places throughout Victoria. At an early age, he was diagnosed with a hearing loss and used hearing aids. He also suffered from a condition called retinitis pigmentosa, a degenerative condition of the eyes which typically commences in childhood and progresses eventually to blindness. One of its features was night blindness. Victoria Meakins ('Meakins'), the girlfriend of Mr Repia, described his hearing and his eyesight as 'terrible', with his eyesight particularly bad at night time.[1]

5 At the time of his death, Mr Repia was in a relationship with Meakins. They lived together in a house in Narre Warren.

6 You were born on 13 March 1990 and were hence 28 years old at the time of your crime. You are now 29.

7 Your co-offender, Daniel Treasure ('Treasure'), was five years older than you.

8 Mr Repia did not know either you or Treasure. Meakins had met Treasure on a couple of occasions. She had not met you.

9 In the days leading up to his death, Mr Repia was in contact with Treasure via an online messaging application. Treasure had held himself out to be a woman named 'Nikki' in messages he sent. Amongst other things, drug use was discussed during the messages exchanged between Mr Repia and 'Nikki'. Mr Repia offered to get drugs for 'Nikki', and ultimately, on the night of his death, Mr Repia arranged to meet up with 'Nikki'.

10 On 30 April 2018 at 7.47 pm, Treasure, masquerading as 'Nikki', sent a message to Mr Repia which read:

Where I live is a complex for domestic violence babe so I'll get u to park out the front and come to the front doors. There is no staff so it's all good and I'll buzz you in when you get here hun.

11 Mr Repia and Meakins were at their home address in Narre Warren that evening. Mr Repia asked Meakins if she would be willing to drop him off at an address in Berwick. He said he wanted to go to Berwick to 'hook up with a girl' and that he would be about 30 to 45 minutes. Mr Repia was unable to drive at night due to his eye condition. Meakins agreed to the request, and it was decided that they would travel in Mr Repia's vehicle. The plan was that Meakins would wait in the car, using one of Mr Repia's electronic tablet devices for entertainment while she waited.

12 That evening, you and your girlfriend, Brieley Oates ('Oates'), caught a train to Berwick Station and then walked to 77 Melville Park Drive, Berwick, the home address of Treasure. All three of you went to a local Woolworths supermarket at 8.28 pm. You removed a peeling knife from the shelf and placed it, packaging and all, into your back pocket. You left the supermarket without paying for the knife. You and Treasure then left the area of the supermarket leaving Oates behind.

13 At approximately 9.40 pm, Mr Repia told Meakins he was ready to go and the two of them left their address shortly afterwards in Mr Repia's vehicle. Mr Repia informed Meakins that they were going to Wilson Street, Berwick. As they proceeded towards that location, Mr Repia used the tablet to communicate with 'Nikki' as to arrangements. At some point, he was informed that the correct address was 29 Wilson Street.

14 29 Wilson Street Berwick was a community housing facility with which neither you nor Treasure had a connection. Treasure knew about the location and considered it might be an appropriate place at which to rob Mr Repia.

15 On their arrival in Wilson Street Berwick, Meakins and Mr Repia took some time to locate the address. When they did so, Meakins drove along the driveway to the car park and parked the vehicle at the front of the complex.

16 Mr Repia exited the vehicle and began to walk towards the front doors of the premises. Due to his poor eyesight, he bumped into a number of vehicles and other objects. Seeing this and being concerned for his welfare, Meakins got out of the vehicle and went to assist him. She guided him down the driveway and around a garden bed to the front doors. Mr Repia was holding onto his tablet as he walked along. Meakins was carrying her handbag.

17 At 10.39 pm, Meakins was standing at the front doors with Mr Repia when she saw you and Treasure walking down the driveway from the street, with Treasure several metres in front of you. She immediately recognised Treasure, and because of some previous experience with him, she was concerned about the safety of herself and Mr Repia. She moved closer to Mr Repia intending to warn him, and the two of you sped up as you continued to walk towards them.

18 CCTV footage from the scene reveals that you removed a knife from your pocket as you proceeded down the driveway. When Treasure arrived close to the entrance, with you a few metres behind him, he jumped over a small fence, pulled out a knife from his pocket, and immediately confronted Mr Repia and Meakins, who by that time had placed her hand on a Stanley-style knife which she had in her handbag. After an initial brief confrontation with Treasure, Mr Repia backed away to the other side of the doors. You approached him and confronted him there, with a knife in your hand.

19 At the time of the initial confrontation, Treasure shouted out, 'C'mon, give it, where is it?' At the time, he was holding the knife in front of him, pointed at Meakins and Mr Repia. Mr Repia backed away to the other side of the doorway, and for a time, Treasure's focus was upon Meakins. The recollection of Meakins was that she said to Treasure, 'What are you talking about? We don't have anything'. A resident who was awoken by the noise of a commotion involving two male voices screaming at one female voice heard Treasure yelling out, 'Just fucking give it to me. I know you have it. Just fucking give it to me'.[2] The frightened-sounding Meakins was heard to reply, 'Look, I don't have it. You can check my bag'.

20 Treasure punched Meakins to the mouth, causing her to fall to the ground. From that position, she observed you wrestling with Mr Repia some distance away. Treasure ran over to you and Mr Repia and stabbed Mr Repia in the right shoulder. Meakins herself went over and stabbed Treasure around the rib area in defence of Mr Repia. Treasure in turn stabbed Meakins under her left arm, causing her to fall to the ground in pain.

21 For a period of time, you, Treasure, Meakins and Mr Repia were all out of sight of the CCTV cameras. You all came back into view after a time, then disappeared out of sight on the other side of the doorway. At some point during the course of the overall attack upon him by you and Treasure, Mr Repia received multiple stab wounds to his upper body and chest area. He eventually collapsed to the ground.

22 During the incident, Meakins' handbag was thrown into the car park area. As you were walking down the driveway after the conclusion of the attack, you stopped and picked up the handbag and rummaged through it, taking the wallet and phone of Meakins before discarding the handbag onto the ground. You and Treasure then ran away from the scene.

23 At 10.48pm, ambulance officers arrived at the scene and commenced cardio pulmonary resuscitation on Mr Repia. He was pronounced dead at 11.06pm.

24 After the attack, you and Treasure left the area and walked down Langmore Lane, where you dumped Meakins' mobile phone in a Telstra pit. You then made your way back to Treasure's home in Melville Park Drive.

25 At the time of the events, Oates was at Berwick Railway Station. At 10.38 pm, she received a phone call and immediately left the station, returning to the Melville Park Drive address.

26 At 11.10 pm, Treasure's mobile phone was used to order a taxi. The taxi arrived at the Melville Park Drive address and you, Treasure and Oates all got into it. A short time later the taxi was intercepted by police. All three of you were arrested.

27 You were interviewed by police on 1 May 2018 and stated that both you and Oates attended Treasure's address during the evening and did not leave until you caught the taxi in which you had been arrested. Your account to the police in this respect is demonstrated by your plea of guilty in this Court to be entirely false.

28 A Wiltshire-brand knife was located near 46 Wilson Street, Berwick. No blood was detected on the blade, but DNA was obtained from the handle. Scientific analysis strongly indicated this DNA was from Treasure.

29 A Troop-brand bag located in the rear of the taxi in which you were arrested contained a folding knife which appeared to have a bloodied handle, but no blood on the blade. DNA on the handle strongly linked the knife to you.

30 A jumper located in the rear of the taxi was found to have several different blood stains. One of the stains on the upper left front of the jumper was found to contain a mixed DNA profile. There was strong statistical support for the contention that you and Meakins were the sources of the DNA. A blood stain on the outside of the right sleeve appeared to be a transfer blood stain. There were found to be three contributors to this stain. It was equally likely that Mr Repia was or was not a contributor, and there was strong statistical support for the contention that you were a contributor.

31 On your behalf, it was admitted that the folding knife and the jumper found in the taxi were yours. You denied that the knife was used in the offence.

32 The peeling knife which you stole from the Woolworths Supermarket was consistent in appearance with the knife you could be seen pulling from your pocket in the lead-up to the crime. This knife has never been located.

33 An autopsy was carried out on Mr Repia by Dr Linda Iles on 1 May 2018. A summary of the autopsy findings was:

1. Stab wound to the right chest wall extending for a depth of approximately 7 cm passing through the right fifth costal cartilage, pericardial sac and penetrating the right ventricle of the heart associated with 1.8+ litres of blood in the right pleural cavity and 180 ml in the pericardial sac.
2. Stab wound to the right shoulder without associated major vascular injury.
3. Stab wound to the left shoulder without major vascular injury,
4. Superficial stab wound right hip.
5. Incised wounds to the bridge of the nose, right side of the face, right ear and right jawline.
6. ...
7. ...
8. Superficial incised wounds palmar aspect right index finger (possible defensive injury).

34 Whilst three of the stab wounds were not associated with major vascular injury and were minor, the wound to the right chest penetrated the heart and resulted in the death of Mr Repia. At least moderate force was involved in its infliction.

35 The cause of death was determined to be the stab wound to the chest.

36 The prosecution case against you was put on the basis that you and Treasure were acting pursuant to an agreement to commit an armed robbery on Mr Repia, and that during the course of the armed robbery he was killed by being stabbed in the chest by one or other of you.

37 On the prosecution case, it would not be possible to determine whether it was you or Treasure who inflicted the fatal wound.

38 In the Summary of Prosecution Opening for the Plea ('the Summary'),[3] the prosecution set out a number of matters from which the agreement between you and Treasure to carry out the armed robbery on Mr Repia could be inferred.[4] It is not necessary for me to set those matters out here. Your plea of guilty to murder was entered on the basis that you admit there was an agreement for an armed robbery to be carried out upon Mr Repia and that he was killed by being stabbed during the course of the armed robbery.

39 Dr Alexander, on your behalf, urged me to find that you were not responsible for the fatal stab wound. That would be a matter in mitigation, in respect of which the onus would be upon you to satisfy me on the balance of probabilities on the issue.

40 The things relied upon by Dr Alexander in proof of your non-involvement in the infliction of the fatal wound were the CCTV footage itself, the account of Meakins in her statement and in her evidence at the committal of having observed Treasure stab Mr Repia to the right shoulder,[5] and your denial of having used a knife to stab anyone during the course of the attack.

41 In respect of the latter point, you were called to give evidence during the plea hearing. It would be correct to say that the main reason why you were called was to apologise to the Court and to the family of Mr Repia for your involvement in the crime. I will deal with that aspect of your evidence later.

42 You commenced your evidence, however, with a brief account of your involvement in the attack on 30 April 2018. I will set out what you said about this in full:

Could you tell his Honour what happened when you went to those premises?---Um, when we got there, we started walking down a driveway. Pretty much straight away a fight broke out. I pushed Repia off---

Could I ask you this - did you have a knife with you?---Yes, I did.

You saw the footage?---Yes.

Did you pull out the knife?---Yes.

Was that before this fight broke out?---The fight started and then I went down.

When did you pull the knife out?---As I started going down.

All right, keep going?---I pushed Repia off Treasure. Um, I got punched in the face, I fell over. Me and Repia kept fighting and then I don't really remember a great deal of it but we got up and then there's a bit of yelling and then we pretty much left straight away.

Did you have the knife in your hand when you were fighting with Mr Repia? Do you recall or do you not recall?---I don't recall, but I did have a knife, yes.

Did you use the knife on Mr Repia?---No, I never stabbed him.

Did you use your knife on yourself or Ms Meakins?---No.[6]

43 Having given this evidence, you proceeded to make an apology to the Court and to the family of Mr Repia. You were not cross examined by Mr Rochford QC for the Crown. In the circumstances, I did not take that as an indication that the Crown did not take issue with your evidence. The fact is that the Summary contained a number of aspects inconsistent with your brief evidence in this Court, and the Defence Outline of Plea Submissions filed on your behalf indicated the Summary was accepted and that there were no issues in dispute. Importantly, the implication contained in the Summary was that the actual perpetrator of the fatal wound could not be determined.

44 In making a decision not to cross examine you, I am satisfied that Mr Rochford acted on the basis that the main purpose of your giving evidence was to apologise in open court for your conduct. In those circumstances, he did not see the need to challenge you as to your evidence touching on the actual offence.

45 As well as the false account you gave to the police, and the brief evidence you gave in Court on the matter, you gave an account about the events of your crime to Carla Lechner, a Clinical Psychologist whose report of 3 June 2019 was tendered as Exhibit 3 on the plea. Your account to Ms Lechner about the offence itself is contained in the report as follows:

Mr Coghlan has pleaded guilty to the charge as outlined in the Prosecution Opening. He stated that he and Brieley were travelling to Dandenong but got off the train at Berwick in order to meet the co-accused and score drugs. He stated 'we ended up at this house and he was talking to these people ...they're fighting, and I push the block (sic) off him, and he punched me, and I fell over the garden bed and he got me in a head lock and started punching...I was punching him, I don't really recall it'. He admitted having a knife on him 'because of my shit lifestyle...but I was so immersed'. The situation escalated and the victim suffered stab injuries that resulted in his death.[7]

46 Dr Alexander submitted that I should be satisfied on the balance of probabilities that you did not inflict the fatal stab wound. He did not specifically accuse Treasure of having done so, and even at one point held out the prospect that Meakins may have accidentally inflicted the fatal wound, a proposition which can be readily dismissed. I have indicated the matters upon which Dr Alexander relied, and set out the relevant evidence.

47 Mr Rochford pointed out that your claim of having not pulled out your knife until the physical altercation had commenced conflicted with the evidence of the CCTV footage and should be rejected. He maintained that it was not possible to discern who inflicted the fatal wound. He further submitted that it would make no difference to sentence whether it was you or Treasure who inflicted the fatal wound.

Analysis of issue as to who inflicted the fatal wound

48 I have viewed the CCTV footage on numerous occasions. This footage contains the product of two different cameras, one positioned externally showing the area of the driveway, and one positioned inside the front foyer of the building. I have read the statements and the committal evidence of Meakins. I have read the statements of the eye witness Kiley Jensen who observed much of the attack from a position inside the doors to the building. I have considered the accounts you have given about the circumstances of the crime, including your sworn evidence in Court. I have considered the submissions of each side on the issue.

49 The CCTV footage does not reveal whether it was you or Treasure who inflicted the fatal wound upon Mr Repia. From the driveway footage, you can be seen to draw a knife from your pocket with your right hand as you approached the front doors. This was before you had reached Meakins and Mr Repia, and, the indications are, you drew this knife at about the moment, revealed by the internal footage, when Treasure first physically confronted Mr Repia. The internal footage showed that after the arrival of Treasure, Mr Repia backed away from view to the left of screen. You moved rapidly in his direction. The knife must already have been in your right hand by that time. You and Mr Repia, from that point, remained out of view to the left of screen for at least 30 seconds. At about the time you and Mr Repia disappeared from view, Treasure focused his attention on Meakins, punching her to the ground. You were at that time, according to Meakins, involved in a struggle with Mr Repia. Meakins stood up and then Treasure had a further short confrontation with her, before disappearing to the left of screen, being followed by Meakins. Meakins said that she observed Treasure run over and stab Mr Repia to the right shoulder, causing her to respond in defence of Mr Repia by stabbing Treasure to the chest with the knife she had. Those events must have happened after Treasure and Meakins both disappeared from view to the left of screen. At one point after that, Mr Repia could be seen inflicting apparent blows to a person who was out of sight low and to the left. Later, all four participants were in view in front of the doors before disappearing to the right. The eventual collapse of Mr Repia occurred after you and Treasure fled the scene. Before this occurred, there was a period of time when you and Treasure, who had both followed Meakins and Mr Repia to the right, were clearly attacking or seeking to attack them. At no time was any clearly discernible stabbing of Mr Repia able to be observed on the footage.

50 The CCTV footage, as I have already said, does not reveal the identity of the person who fatally stabbed Mr Repia. It makes it perfectly plain, however, that from the time when, armed with a knife, you disappeared from view to the left in apparent pursuit of Mr Repia, both you and Mr Repia remained out of view for half a minute. There was ample time and opportunity for you to have stabbed Mr Repia, and on the evidence, you must have had the knife in your hand when you confronted him. In addition, there was further opportunity for you to have stabbed Mr Repia when you and he were out of view to the right as seen on the internal CCTV footage.

51 Kiley Jensen did not observe either you or Treasure stab Mr Repia. As for Meakins, I have already indicated what she observed. She saw you involved in a struggle with Mr Repia. She did not realise it, but you must have been armed with the knife at this time. She observed Treasure stab Mr Repia to the right shoulder, but did not see him stab Mr Repia in any other location.

52 It follows from this brief analysis of the CCTV footage and evidence of prosecution witnesses that it would be impossible to determine who it was out of you and Treasure who inflicted the fatal wound. There remains only your sworn evidence in Court, and the account you gave to Ms Lechner, both of which occurred after you had previously given an entirely false account to the police in the interview.

53 In forming an assessment as to your credit, I am struck by the fact that the account you gave of the overall events to Ms Lechner, as set out above, bore little relation to the truth. She spoke to you in prison on 28 May 2019, which was 13 months after your crime. You had already pleaded guilty to murder. You spoke to her in the knowledge that what you said was important, and that she would provide a report to the Court. And yet, you chose not to tell the truth. You said nothing about your attack upon Mr Repia being a planned one in the course of an armed robbery. You made it sound as though you had actually gone to the assistance of Treasure and had then been attacked by Mr Repia. None of this was the truth.

54 As for your evidence in Court about the events, I do not accept it. You claimed that at the commencement of your involvement, you pushed Mr Repia off Treasure, and that you were then punched in the face and fell over. That is not the way things occurred, as the CCTV footage clearly shows. In fact, by the time you came close, Mr Repia was some distance away from Treasure. Mr Repia backed away to the left and you made a bee-line for him while Treasure turned his attention to Meakins.

55 In the circumstances of your proven dishonesty about the events of that evening, to the police, to Ms Lechner, and to the Court, I am quite unable to accept as truthful your assurances that you did not stab Mr Repia. You attended at the location intending to carry out an armed robbery of Mr Repia in company with Treasure. You took a knife with you for that purpose and you knew that Treasure was also armed. You pulled out the knife shortly before you confronted Mr Repia. At the start of the events, you focused your attention on Mr Repia. For 30 seconds or more, you were out of sight of the cameras with Mr Repia. You had ample opportunity to stab him during that period or some other time during the overall attack. Whether you did so or not, I cannot conclude.

Conclusion on issue as to who inflicted fatal wound

56 In the circumstances, I am unwilling to conclude that you were not the person who fatally stabbed Mr Repia. I sentence you on the basis that it has not been established by the Crown that you were the person, but that you have failed to establish that you were not.

57 For completeness, I point out that the prosecutor maintained that it would not make any difference what conclusion I reached on this particular issue. In the circumstances of this case, that is probably correct. You and Treasure attended at the location of the crime intending to carry out an armed robbery upon Mr Repia. Both of you were armed with knives. Pursuant to the agreement between you, you jointly attacked Mr Repia. He sustained a fatal stab wound inflicted by one or other of you. Which one of you it was who inflicted the wound is of limited importance in the assessment of your criminality.

Nature and gravity of offence and your culpability and degree of responsibility

58 Two of the matters to which I am required by s 5(2)(c) and (d) of the Sentencing Act 1991 to have regard are the nature and gravity of the offence and your culpability and degree of responsibility for the offence.

59 You have pleaded guilty to murder pursuant to s 3A of the Crimes Act 1958. At the heart of your plea of guilty is your acknowledgment of the fact that you entered into an agreement with Treasure to carry out an armed robbery of Mr Repia. The purpose of the armed robbery was to obtain drugs from him. Mr Repia was lured to what was considered, apparently by your co-offender Treasure, to be an appropriate location. Both you and Treasure were armed with knives, in your case, a knife which you stole for the purpose shortly before the crime.

60 The planned crime was a very serious one. It had violence and intimidation at its heart, and carried with it obvious dangers which sadly were realised in this case.

61 As your counsel conceded in his submissions, Mr Repia was a vulnerable man when lured to the location by your co-accused. He had poor vision and hearing. He was not armed and had no means of defending himself. He was not expecting conflict.

62 Mr Repia was stabbed multiple times during the course of the violent and unprovoked attack upon him. There is no reason at all to suppose that these were anything other than deliberately inflicted stab wounds, albeit that of course, in this case, there is no evidence which would warrant a finding that the person who inflicted any of the wounds, and in particular, the fatal one, had any intention to cause death or really serious injury. There were four identifiable stab wounds to Mr Repia's hip and upper body. Only one of these was fatal but the others were wounds to not-insubstantial areas. In addition, there were multiple incised injuries to the face, indicative of having been caused by a knife or knives. These were all indicative of this being a very serious and violent attack upon Mr Repia.

63 After both Mr Repia and Meakins had been stabbed during the course of the attack, and in the knowledge of those events, albeit that you would not have realised the extent of the injuries to Mr Repia, as you departed the scene, you picked up Meakins' handbag, looked inside it, and stole some of her possessions, apparently her telephone and her wallet. You then discarded the handbag and ran away from the scene with your co-offender. In doing these things, you showed no regret for the attack, and no concern whatsoever for the two people left wounded and significantly injured as a result of the attack.

64 Dr Alexander, on your behalf, described the scenes depicted on a viewing of the CCTV footage as being a 'very ugly thing to watch', amounting, as it does, to the last record of Mr Repia being alive. He said it was recognised that 'this, like all deaths of a human being, is a terrible, ugly, sad, and, in this case, particularly unnecessary and particularly pointless event'.[8] That was a realistic acknowledgment of the reality of your crime.

65 In his Outline of Plea Submissions filed in this matter, Dr Alexander described your offending as being 'inherently serious'. He further described it as being, 'at a mid-range of seriousness', and your moral culpability as being 'moderate to high'. Mr Rochford did not take issue with these characterisations.

66 Dr Alexander and Mr Rochford both referred me to the decision of Director of Public Prosecution v Perry ('Perry'),[9] in which the Court of Appeal set out the principles relating to sentencing for s 3A (statutory) murder. In that case, the Court made it clear that statutory murder is not inherently less serious than intentional murder.[10]

67 For the reasons already mentioned, there is no doubt that your offending in this case was serious. That is so in spite of the fact that I can reach no conclusion about the identity of the perpetrator of the fatal wound. It is also so in spite of the fact that I cannot conclude that whoever that offender was, there was an intention to cause death or really serious injury at the time of that event.

68 Although it has often been noted that the labels that might be attributed to offending are not what is important, I accept, as your counsel has submitted, and as the Crown has not disputed, that your offending is in the mid-range of seriousness for murder, and that your moral culpability for the crime is moderate to high.

69 You were born on 13 March 1990, and were hence 28 at the time of your crime. You are now 29 years old. You are the eldest of three children born to your parents Debra and Kevin before they separated when you were seven. You have two brothers, Tom and Chris. Both of your parents re-partnered. You have a half-sister Ebony who is 20 and was born to the relationship between your father and his partner Sheena. You were apparently significantly affected by the separation of your parents. During your teenage years from the ages of 13 to 17, you were prescribed antidepressant medication. You suffered low self-esteem and felt isolated from your peers.

70 You were educated at Pakenham High School until mid-way through Year 11. After leaving school, you performed increased shifts at Red Rooster, where you had worked part time when still at school.

71 In 2008, aged 18, you obtained work as a labourer, tiling floors and building fences. You also commenced occasional drug use. You started using amphetamine (speed) on weekends, then progressed to methylamphetamine (ice) shortly afterwards. I was informed that you sold ice opportunistically to support your own habit. You also used other illicit drugs.

72 In spite of your increasing drug use, you were able to maintain employment. In March 2009, when you were 19, you commenced an apprenticeship as a structural steel boilermaker with a company called Allrange Steel Fabrications. You worked at that company until July 2015. A reference from your former employers tendered on the plea described you as a diligent and competent employee who was always polite, punctual and respectful to all employers and employees. You told Carla Lechner that you loved this job, and considered yourself to be good at it.

73 In 2015, your half-sister Ebony, at the age of 17, was diagnosed with liver and pancreatic cancer. She commenced chemotherapy and had several operations. She continues to receive treatment.

74 Within six months of Ebony's diagnosis, your step-mother, Sheena, was diagnosed with lung cancer. She had her left lung removed.

76 Between 2015 and 2017, when you were aged 25 to 27, you engaged in criminal activity to support your addiction to ice. As Dr Alexander put it, the nature of your offending became more serious over time.

77 The criminal record filed against you reflects the criminal trouble in which you involved yourself in those years, as your life spiralled somewhat out-of-control. On 16 January 2015, at the Moorabbin Magistrates' Court, you were dealt with for dishonesty and serious drug offences. You received a community correction order ('CCO') for 12 months with a condition you undergo assessment and treatment for your drug dependency. I was informed by Dr Alexander that in spite of this conviction, and the treatment provisions which were set up, that you continued to use drugs throughout the duration of the CCO. Dr Alexander described this as the first of two clear opportunities you wasted to do something about your worsening drug habit.

78 On 6 December 2017 in the Dandenong Magistrates' Court, you were imprisoned for an aggregate 6 months to be followed by a CCO for mainly dishonesty offences, but also an offence of being a prohibited person in possession of a firearm. You appealed against the severity of this sentence to the County Court and on 5 March 2018, the appeal was allowed and the sentence of imprisonment was reduced from six months to three months and the CCO confirmed.

79 You were released from custody in March 2018, aged 29. As your counsel described it you were at this time 'clean of any drug use'. This was the second clear opportunity you had to do something about your drug use. This time, to an extent, fate intervened.

80 In April 2018, your step-mother Sheena died. You relapsed into drug use, although, as I am told, used considerably less than had previously been your habit.

81 The crime which brought you before this Court was committed within weeks of the death of Sheena.

82 As counsel put it, your drug use over the decade from the time you were 18 was central to your offending in the years 2015 to 2017. He described you as having been a 'functional drug addict'[11] for your whole adult life. In spite of the warning shots fired over your bow to desist on at least those two occasions, as Dr Alexander put it, on the night of the murder, the lure of drugs again won out.

83 A number of impressive testimonials were tendered on your behalf from each of your parents and a number of other family members and friends who know you well. All spoke powerfully as to your normally kind, gentle, and caring disposition. The authors of some of these testimonials and a number of other people important in your life attended Court on the occasion of the plea.

84 There is no question that you come from a stable and good family where you were clearly taught the difference between right and wrong. Your normally decent behaviour and strong work ethic in spite of the worsening shadow of your drug use are testament to your previous good character.

85 It must be acknowledged, however, that your life has been blighted by the drug use which you embarked upon as a young person, and were willing to continue for more than a decade.

86 I am satisfied that the crime you committed occurred in the context of that pattern of drug use. That provides no excuse to you at all, but does raise the hope that if you are able to avoid drug use in future, your prospects of rehabilitation are good.

87 As indicated earlier, you have been seen by Carla Lechner, a Clinical Psychologist whose report to the Court became Exhibit 3. Ms Lechner examined you in prison on 28 May 2019. In terms of your presentation at interview, she found you to have a slightly lowered mood but not to the level of clinical depression. Indeed, your mood was markedly improved since your incarceration, she considered. She carried out some psychometric testing of you. Your scores in the Beck Depression Inventory fell within the 'mild' range. Your scores in the Beck Anxiety Inventory fell within the 'minimal' range. She also carried out a test to determine the risk factors relating to future violent behaviour. The results of testing of you under the HCR-20[12] indicated you pose a 'low/moderate' risk of future violent offending compared with the average violent offender. On this matter, she stated that, 'This risk level would be lowered through continued work on remaining abstinent from drug use and engaging with treatment services...'[13]

88 Ms Lechner noted that you are focusing on rehabilitation whilst in custody. She expressed the opinion that your prognosis in that regard is favourable, particularly if you are able to remain abstinent from drug use in the future.

89 There was nothing in the report of Ms Lechner which raised as an issue the applicability of any of the principles set out in the case of R v Verdins.[14] Dr Alexander made it clear during the plea that no such issues arose on your behalf.

90 You offered to plead guilty to s 3A murder at the time of the committal hearing. The factual basis upon which the offer was put was not accepted by the Crown and the offer was rejected. A trial indictment containing a s 3A murder charge for you and Treasure was filed on 14 April 2019. It was indicated on your behalf on 6 May 2019 that you would plead guilty to the charge. The plea indictment was filed and you were arraigned and pleaded guilty on 9 May 2019.

91 Your plea of guilty was not entered at an early opportunity, having occurred after a contested committal had been held and you had been committed to stand trial in this Court. Having said that, your plea of guilty is of great utilitarian value, and I am satisfied in your case, is reflective of the remorse you feel for your crime. In addition, your plea of guilty is evidence of the other so-called objective matters which may flow from a plea of guilty.[15]

92 On the matter of remorse, Dr Alexander submitted that you are genuinely and deeply remorseful. He relied on a number of matters in demonstration of that proposition. These were your plea of guilty, what he described as your 'honest and thoughtful conversation with Carla Lechner' which led her to express an opinion on the matter, your insight into your offending since you have been in custody, and your evidence to the Court in which you apologised to the family of Mr Repia for your crime, to your family for the trauma through which you have put them over the past 11 years, to the Court and to the community.[16]

93 In the portion of your evidence concerning your apology to the Court and the community, you said:

And to the Court and the community, I apologise. My drug use has...brought me to this point. I have been selfish and weak and a man has now lost his life. I apologise to the community and the court with a deep sense of remorse and humility and I'm ashamed of my conduct and accept the punishment.[17]

94 There were some aspects of what you said to Ms Lechner and what you said in your evidence in Court which may have been seen to call into question the genuineness of your remorse. To my mind, you did not tell the truth to Ms Lechner or to the Court about the circumstances of your offending. That may have blurred the sharp focus presented by your comforting words of contrition. I raised my misgivings with defence counsel and also with the prosecutor. Both urged me to find that you are genuinely remorseful for your crime. In the case of Mr Rochford, with great fairness, he provided a possible explanation for your apparent lack of frankness to Ms Lechner and the Court, and said, of your evidence before me, 'That was a genuine display of remorse in the witness box, in his own words'.[18]

95 In the circumstances, I am satisfied from a consideration of all of the material, including your plea of guilty, that you are truly remorseful for your crime. It is to be hoped that with the passage of time, the last vestiges of self-justification which might have been the cause of your less than frank statements to the Court and to Ms Lechner will well and truly dissipate. It would be much better for you to be able to fully acknowledge and accept the true seriousness of your crime.

96 Dr Alexander made submissions concerning what he described as the remarkable progress you have made towards rehabilitation whilst on remand. Your mental and physical health are much improved since your incarceration. As a mark of your good behaviour, you are housed in a cottage with other male inmates. You have abstained from drug use on remand, and you are apparently strongly motivated to remain abstinent.

97 You have used your time in custody well to engage in practical activities and learn new skills, as evidenced by numerous certificates tendered on the plea.

98 Your mother, Debra, in her letter to the Court, spoke in positive terms about the change in you since your incarceration. She stated:

Since Matthew's time in prison he has worked hard in the woodwork section, receiving a promotion. He has also received numerous certificates for courses he has done to help with his self esteem, depression and life skills. Matthew has also undergone a transformation in his mind and body, losing weight while working out at the gym. He no longer acts like the world owes him, he is clear headed, confident and has no interest in drugs or anyone from that life. He looks forward to a life out of prison hopefully finding someone nice to settle down with and start a family. I haven't seen my son this healthy and clear headed in a long time.

99 Dr Alexander submitted that despite the violent nature of your crime, you have good to very good prospects of rehabilitation. In this regard, amongst other things he pointed to the absence of any prior convictions for violence, and the results of testing of you pursuant to the HCR-20 guidelines, as set out in Ms Lechner's report.

100 Mr Rochford conceded that the prospects of rehabilitation in your case are 'reasonably good' if you stay away from drugs.[19]

101 Your crime having been committed after 1 February 2018, the standard sentence scheme applies to this offence. Murder is a standard sentence offence and the legislation applies equally to s 3A murder as it does to any other murder. In the end, that was the submission of both sides on the plea. I act upon that submission being correct.

102 As pointed out by Champion J in R v Brown ('Brown')[20]:

The Explanatory Memorandum for the Amendment Act states:

The aim of the standard sentence scheme is to increase sentences for standard sentence offences and ensure that sentencing outcomes are more consistent with community expectations.

'Community expectations' are not defined or further elaborated (sic) in the Explanatory Memorandum or the Second Reading Speech for the Bill, though there is clearly an expressed intent that lengths of sentences will increase.

However, as VLA submitted, this intent does not manifest in the text of the legislation. There is no legislative provision that necessitates a higher sentence be imposed in any individual case, including in a case of murder. While sentences might rise as a consequence of courts considering the standard sentence as an additional sentencing factor, it is not an imperative to which I must have regard.[21]

103 Pursuant to s 3(2)(b) of the Crimes Act 1958, the standard sentence for murder is 25 years.

104 Pursuant to s 5A(1)(b) of the Sentencing Act 1991 ('the Act'), the period of 25 years is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

105 I have approached the task of sentencing you for this standard sentence offence of murder in a manner consistent with the approach of the High Court of Australia in Muldrock v R ('Muldrock').[22] I have been much assisted by a consideration of the sentences passed by Champion J in the cases of Brown and R v Robertson ('Robertson'),[23] and the sentence passed by Lasry J in the case of R v Willis ('Willis').[24] Brown was the first sentence passed on an offender for murder once that crime became a standard sentence offence. Champion J comprehensively canvassed the applicable law, including the extraneous materials.

106 Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. Section 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing you.

107 The introduction of the standard sentence regime is not intended to interfere with the requirement that my sentence of you should be the result of my instinctive or intuitive synthesis of the relevant considerations in this case.

108 The standard sentence is but one of the many factors I am required to take into account. It does not have primacy. In the words of the Attorney-General in his Second Reading Speech:

The standard sentence scheme introduces an additional factor for courts to take into account, in the form of a legislative guidepost...Courts will be required to consider the standard sentence alongside other relevant sentencing factors...[25]

109 Another legislative guidepost, of course, is the maximum penalty for murder, namely, life imprisonment.

110 Being a guidepost, the standard sentence is not a starting point from which the sentence should be fashioned. It is simply one of the factors to be taken into account in determining the appropriate sentence.

111 In accordance with the approach of the High Court in Muldrock, it is clear that the Court is not permitted to engage in a two-step approach to sentencing:

...commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by enquiring if there are matters justifying a longer or shorter period.[26]

112 I have sought to ensure that I do not engage in any such two-stage process.

113 The requirement in section 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but section 5B(2)(b) dictates that I:

must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

The plain language of s 5B(2)(b) expresses Parliament's clear intent to alter the scope of s 5(2)(b) when sentencing for a standard sentence offence. The Explanatory Memorandum to the Amending Act further indicates:

It is intended that...courts sentencing offenders for standard sentence offences should start from a 'clean slate' with respect to current sentencing practices...

The effect of the new section 5B(2)(b) of the Sentencing Act 1991 is to prevent the courts from having regard to current sentencing practices for 'old' offences (offences alleged to have been committed prior to commencement of the standard sentence scheme). This will allow a new sentencing practice to be established for standard sentence offences that is consistent with community expectations.[27]

115 This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[28] I have endeavoured to apply such principles in formulating the appropriate sentence to pass upon you. Those principles include those so clearly set out by the Court of Appeal in respect of s 3A murders in the case of Perry, to which I referred earlier.

116 In Perry, the Court of Appeal, in correcting the previous misapprehension that s 3A murder was inherently less serious than common law murder, noted the inadequacy of the then-existing sentencing standards. The Court stated:

Sentencing standards for statutory murder must be increased to properly reflect the objective gravity of the offence, which carries the same maximum penalty as common law murder. The range of sentences for statutory murder - from the least serious to the most serious instances of the offence - should be encompassed within the range of sentences for common law murder.[29]

117 Currently, Brown, Robertson, Willis, and another case of R v Leigh[30] in which I imposed sentence on 7 June 2019 are the only cases to have applied the standard sentence scheme to the offence of murder. It is still too early to conclude that any meaningful sentencing practices have emerged. However, I have considered the circumstances of those cases, and noted the sentences passed. Like this case, all of those sentences concerned offenders who pleaded guilty to murder. All were serious examples of the crime. In terms of its objective features, I believe the objective circumstances of your crime are less serious than those in the other cases, although I note, of course, that no sentence passed in any other case has the status of a precedent to be followed by me. I note that in Willis, the offender suffered from a significant mental illness at the time of his crime. The principles set out in Verdins had application, which no doubt led to a substantial reduction in sentence.

118 Five victim impact statements were read aloud by the prosecutor Ms Foot before me. All five statements became Exhibit D on the plea. The authors of the victim impact statements and their relationship with Mr Repia were as follows:

Phillip Repia - Brother

Jacqueline Manners - Aunt

Sidney Walters - Step father

Sativa Repia - Daughter

Donna Walters - Mother

119 I will not go into the content of the victim impact statements in detail. Suffice to say that they reveal graphically and in respectful and clear terms the tragic effect of the murder of Mr Repia on each of them. Mr Repia was described as a kind, caring, gentle and special person, who for all his disabilities, according to his mother Donna Walters, strived to be the best person he could be. His loss has caused pain, sadness, anxiety and regret to those who have been left behind, who in some cases, as well as struggling with their loss, struggle with the anger they feel. Phillip Repia, for example, the brother of Mr Repia, spoke of having a little box deep down inside him into which he pushes the anger he feels so that it can be locked away. The loss of Mr Repia represents the breaking of a link in the lives of his loved ones which can never be replaced.

120 The devastating consequences of your crime upon the family and loved ones of Mr Repia cannot be overstated. They hope for justice, but nothing this Court can do will relieve their pain. All I can do is to have regard to their pain and loss when I come to pass sentence upon you.

121 I take the victim impact statements into account as I am required to do under the Act.

122 If I sentence you to a head sentence of 20 years or more, I am required by section 11A(4) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 70 percent of the head sentence. The head sentence I impose will be one of 20 years or more.

123 Dr Alexander did not submit that it would be in the interests of justice that a non-parole period of less than 70 percent of the head sentence be imposed. The prosecution made no submissions on the matter. Taking into account all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, I will fix a non-parole period that will be 70 percent of the head sentence. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. In this case, I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in this case.

124 The crime which took the life of Felk Repia was a serious one. He was lured from the comfort and safety of his home to a location where you and Treasure intended to subject him to the always-violent crime of armed robbery with the use of dangerous weapons, namely, knives. The purpose of the crime was to obtain drugs, in your case, presumably, so you could feed your habit. The intended crime was to be committed at night time with the use of force to overwhelm a physically disabled man. From the time of the arrival of you and Treasure at the scene where Mr Repia and Meakins waited, not expecting violence, both you and Treasure acted with aggression to put your plan into effect. The attack upon Mr Repia, as evidenced by the many wounds he received, and the end result, was a violent and deliberate one, carried out in furtherance of the crime planned by you and Treasure. Your counsel correctly conceded that the CCTV footage made for very ugly viewing.

125 To my mind, the most important reasons for which sentence must be passed in your case are just punishment, denunciation, and general deterrence. Protection of the community and specific deterrence also retain significance, and I will shortly make particular mention of rehabilitation. You must be punished in a way which reflects the considerable seriousness of your crime and amounts to an appropriate response to it. The Court by its sentence must make it perfectly clear that it deplores violent crimes of this sort. As for general deterrence, the sentence I pass must be such as to bring it clearly home to others in the community who may be minded to carry out dangerous crimes which have violence at their heart that where a life is lost, even if unintentionally, the response of the Court will be a strong one. In respect of specific deterrence, it is to be hoped that you have clearly learnt the difficult lessons from what you have done, but none the less, there is the need for the sentence to be such as to deter your from future violent offending.

126 As for rehabilitation, I consider that your prospects in that regard are good, taking into account, amongst other things, your age, your strongly supportive family background, your demonstrated good character until well into adulthood, the remorse you have exhibited, the steps you have taken towards rehabilitation since in custody, the lack of any prior convictions for violence, the connection of drug abuse with your decline in the years leading up to the crime and your strongly professed desire for abstinence in future, and the fact that it was not your intention that death or really serious injury be caused to Mr Repia.

127 In light of the particular significance of rehabilitation in your case, I consider that it would be appropriate for me to set a non-parole period which would hold out some hope for you of the resumption of a decent life, and allow for the possibility of a substantial period of supervision in the community at the end of the non-parole period. I consider that I can do so whilst still complying with the requirements of s 11A(4) of the Act.

128 Matthew Coghlan, for the murder of Felk Repia, you are sentenced to be imprisoned for 20 years. I fix a period of 14 years during which you will not be eligible to be released on parole.

Section 5B(5) statement

129 Section 5B(4) of the Act requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.

130 As I understand it, the applicable law does not require me in complying with the requirement of section 5B(5) to 'attribute particular mathematical values' to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[31] It does, however, require me to 'identify fully the facts, matters and circumstances' which bear upon the judgment I have reached as to the appropriate sentence.[32] I have endeavoured to do that in some detail during these reasons for sentence.

131 The sentence I have passed is less than the standard sentence for the offence of murder. I have taken into account all of the matters I am required to consider under section 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentence I have just announced.

132 I declare a period of 472 days up to and including yesterday, 15 August 2019, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

Section 6AAA declaration

133 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 26 years with a non-parole period of 20 years.

[5] A wound to the right shoulder was one of the non-fatal stab wounds observed during the autopsy on Mr Repia.

[9] [2016] VSCA 152; (2016) 50 VR 686 ('Perry').

[12] Historical Clinical Risk - Third Edition.

[14] [2007] VSCA 102; (2007) 16 VR 269.

[15] R v Phillips (2012) VR 594 [68]-[69].

[20] [2018] VSC 742 ('Brown').

[21] Ibid [54]-[56] (citations omitted).

[22] [2011] HCA 39; (2011) 244 CLR 120 ('Muldrock').

[23] [2019] VSC 145.

[24] [2019] VSC 398.

[25] Attorney-General Martin Pakula, Second Reading Speech for the Sentencing Amendment Bill 2017.

[30] [2019] VSC 378.