R v Milat & Klein

The primary issues in dispute 25The primary issue in dispute in relation to the offender Milat is the extent to which the killing of David Auchterlonie was premeditated; and, in relation to the offender Klein, whether there was a prior agreement between himself and Milat that the killing would take place. These are quite separate issues. However a finding that the killing of the deceased by Matthew Milat was not premeditated must inevitably lead to a finding that there was no prior agreement between the two offenders to kill the deceased. 26These are by no means the only disputed issues in the proceedings. However the resolution of the other matters will almost entirely depend on my findings in relation to the central issue of premeditation in relation to each of the offenders. I therefore turn to discuss that matter. For obvious reasons I will commence with the evidence relating to the offender Matthew Milat.

Matthew Milat: A premeditated killing? 27It was the Crown's submission that this was a cold blooded, premeditated killing on the part of the offender Milat. Indeed, the Crown designated it a "thrill kill." Mr Stratton, however, submitted that Milat's intention, when they went to the Belanglo Forest, was merely to assault and injure the deceased. It was only during the course of their final confrontation that Milat became so worked up and angry that he formed the intention to kill the deceased, only a short time before he inflicted the fatal blow. 28It goes without saying that it is for the Crown to prove its more serious version of the facts beyond reasonable doubt. 29In order to explore this issue it is necessary to turn to evidence relating to the following matters:

• Statements made by Milat earlier on the day of the killing.
• What was said by Milat both immediately preceding and during the course of the assault on the deceased, as recorded on the co-offender's telephone.
• Statements made by Milat after the killing and before his arrest.
• Poems written by Milat whilst he was in prison.
• What Milat later said to representatives of Juvenile Justice and to a psychiatrist Dr Furst. 30I will discuss each of these matters in turn, as briefly as the circumstances permit. 31On the morning of 20 November, the day of the killing, Milat said to his new girlfriend Rachael: "Me, Cohen and someone else are going to kill Ockto." She said: "Don't be stupid. Stop joking, no you're not." The co-offender Klein was standing next to Milat at the time and the two of them laughed. Rachael asked: "Who's the other person?" Milat told her that the other person was Chase Day. At the time she thought that they were joking. 32That afternoon Rachael was sitting in Milat's car with Milat and Klein. She said that they were talking about what they would be doing that night. Milat rubbed his hands together and sounded excited. He said: "We're going out to Belanglo. Someone's going to die." She asked: "Who's going to Belanglo?" She said that Milat and Klein started naming various people, and Milat ultimately said "Chase will come." She asked: "Who are you going to kill?" Milat replied "Ockto". 33The Crown also relies on the fact that, at some stage that day Milat took the double headed axe, which was later used to kill the deceased, from the home of his friend Ken, and secured it in the boot of his car. 34I turn now to the events immediately preceding the killing of the deceased, as recorded on Klein's mobile telephone. Whilst the deceased was still in the car, and Milat and Klein were near the boot at the back of the car, Klein can be heard whispering to Milat: "Yeah, go it." Milat said: "Can you feel the adrenaline?" To which Klein replied: "Yeah." It was immediately after this that Klein suggested to the deceased that he should come around to the boot of the car and look for a "bong". 35I do not propose to go through all the details of the recorded exchange between Milat and the deceased after the first blow had been inflicted to the deceased's torso. It is extremely distressing material. However, Mr Stratton relied on certain passages as supporting the proposition that Milat had not yet formed an intention to kill the deceased, but was in effect teaching the deceased a lesson so that he would modify his behaviour in the future. These passages included Milat saying the following: "Go around and tell people my fucking business and you wind up hurt, cunt." Later, Milat said: "Because if I don't fucking kill you right now, I'm leaving you here tonight. 'cause right now you are not my fuckin top priority. Don't fuckin move." Later again, Milat said: "I warned you that I was a bit of a fuckin nut lately. You didn't listen, you didn't listen cunt. Do you want to listen next time I say something like that?" 36Mr Stratton also relied on the anger expressed by Milat during this exchange to show that it was, as Mr Stratton submitted, a hot blooded, unpremeditated killing rather than a cold blooded one, as was submitted by the Crown. 37In some respects, a reading of the transcript of this recording might appear to support Mr Stratton's submissions. The words used by Milat appear, on paper, to denote a great deal of anger. However, a different impression is gained from listening to the recording itself. A number of the passages where the words would appear to indicate extreme anger on Milat's part are spoken very precisely and deliberately. The apparent anger, suggested by the words used, is not conveyed by the manner in which they were spoken. 38Moreover, no provocation whatsoever was offered by the deceased which was likely to have fuelled Milat's anger. To the contrary, the deceased was being entirely submissive during the whole of this episode. He was desperately trying to placate Milat. Additionally, as the Crown pointed out, Milat forced the deceased to relinquish his phone and his wallet during the course of this exchange, which denotes a degree of deliberation on his part at that time. 39I turn now to describe the statements made by Milat after the killing and before his arrest. These are set out in the agreed statement of facts. 40Immediately after the killing Milat drove Klein and Day back to Bargo. During the course of the journey Milat said: "That was such an adrenaline rush". Klein, who was sitting next to him, said "I told you that you're going to go down the same path as your uncle." Milat also told Day during this trip that the handle of the axe had been wrapped in electrical tape so that they could rip it off and remove their fingerprints. 41Later that night, after dropping off Day and Klein, Milat was watching a movie with some friends, including Rachael. She asked him: "Did you do it?" Milat responded: "Yes. I understand if you're scared or worried, but he deserved it." 42The next morning Milat drove to the home of his friend Ken, in the company of his friend Damien. It was from Ken's home that Milat had obtained the axe the previous day. Klein, who had spent the night in the car outside Ken's home, was described as looking very stressed. Milat who was laughing, said to Ken: "first one to ten." 43A little later Damien accompanied Milat when the latter drove to his grandparent's home. During the journey Milat said to him: "Guess who I killed?" Damien asked: "Who?" Milat said: "Nah, don't worry about it." Damien said: "Nah, who?" Milat said: "Auchto." Milat also said to him: "Ken killed someone. I told Ken, and we said first to ten." 44Damien asked Milat: "What did you kill him with?" Milat said: "I hit him in the head with an axe." Damien asked: "Who did you get if off?" Milat said: "Ken." Damien then asked whether he was serious, to which Milat responded: "I'm serious. Don't tell anyone. If Ken finds out that I told anyone he will kill me because the axe has Ken's DNA on it. If I find out you told anyone I will kill you." 45Later that morning Milat and Damien went to another friend's home. The friend's mother was also present. Whilst they were there Milat said "I took someone out to Belanglo last night. I hit him in the back of the head with an axe. I was there with two other guys. One of them didn't want to help me move the body. I said, 'if you don't do it, I'm going to do you too'." The friend's mother described Milat as saying: "You know me, you know my family. You know the last name Milat. I did what they do." Milat also referred to the axe getting stuck in the victim's head. He said "I had to kick the back of his head to get it loose." He was excited and bragging about what he had done. 46As already indicated, Milat was arrested on the morning of Monday 22 November 2010. In the meantime he had disposed of all external signs of the killing by cleaning his car, and by putting the axe and his bloodstained clothing into a bag weighed down with bricks and throwing it into the river. 47Milat has been in custody since 22 November 2010. Whilst in prison he wrote a number of poems which he placed in an envelope addressed to his mother and asked her to put them somewhere safe. The mail was intercepted by Juvenile Justice and the poems were passed on to the police. Two of them appear to be recounting the events leading up to the killing of the deceased. One of these is titled "Killer looks and on evil side". The other is "Your last day". This latter poem is particularly chilling. I would not normally have quoted it during my sentencing remarks. However it is highly relevant to the issue for determination here. Accordingly I think I should quote it in full: "Click-clack, hear that, stopping in the, middle of the track, Are you Getting Nervous in the back, Should be Cxxt your getting wAcked, talk shit here, talk shit there, No-one'z really gunna care, but talk shit with every breath, You just signed away your health, I can see you start to sweat, Wanderin what your gunna get, hopin 4-1 in the head, Cxxt ILL Put it in Your Leg, tell me, ARE YA HAVIN FUN, get up Cxxt, And start to run, how fAr are ya gunna get, Your Match Cxxt you have just Met, stumblin all OVA the place, Hear the crunch of leaves and feet, feel your heart, skip a beat, Are ya gunna get away, No hope kid this is your day, The day that you wont be found, Six feet under Neath the ground." (Spelling as in original) 48In yet another poem, entitled "Cold Life", Milat finishes with the following words: "I am not fazed by blood or screams Nothing I do will haunt my dreams Maybe they might scare you Cold blooded killer that's me not you." 49All of these poems were written by Milat at the end of July 2011, more than nine months after the killing of the deceased. 50I turn finally to discuss what Milat has said, since going into custody, to representatives of Juvenile Justice and to a forensic psychiatrist. 51A background report dated 15 May 2012 was prepared by Juvenile Justice for the purpose of these proceedings. Milat told the author of the report that the incident leading to the death of the deceased had escalated beyond a physical fight, due to the victim spreading negative rumours about him, Milat, in regard to his drug use and associated lifestyle. Milat said that he had not planned to commit murder, but rather had wanted to let the victim go. However he had become increasingly angry with the victim's responses during their discourse. Milat said that, had the victim not spoken back, he would have left him at the scene with only the injury sustained to his torso, as had been the original plan. 52On 3 May 2012 Dr Richard Furst, forensic psychiatrist, interviewed Milat at the Baxter Juvenile Justice Detention Centre at the request of Milat's legal representatives. Milat told Dr Furst that he had known the deceased from childhood and regarded him as a friend. However recently he had had a "bad feeling" about the deceased because he believed that the deceased had been spreading adverse rumours about him. This made him angry, he said. He acknowledged having thoughts of violence towards the deceased including thoughts of "doing him in." Milat told Dr Furst that it was the deceased's idea to go to the Belanglo Forest. He denied that there was any special meaning in the location in which the deceased was killed. He acknowledged that he had placed the axe in his car, as he had planned on hurting the victim that night. He said to Dr Furst, "I was sick of him ... no one else knew how angry I was." He also said that he had been taking drugs and that if he had not been unstable at the time it probably would not have happened. 53Mr Stratton relied upon these statements as supporting the proposition that the killing of the deceased was not a premeditated one, but was rather an unexpected reaction to the events as they unfolded during the course of the evening. 54These statements, to Juvenile Justice and to Dr Furst, were made well after the killing, and after Milat had pleaded guilty to murder. At that time he had every motive to minimise his culpability in the killing of the deceased. Accordingly, I accept the Crown's submission that less weight should be attached to these statements than to what Milat said at around the time of the killing. In this regard, I refer to the comments made by Whealy J in R v Elfar [2003] NSWCCA 358 at [24]-[25]. Moreover there are some aspects of these exculpatory statements which do not accord with the known evidence. For example, it was clearly not the deceased's idea to go to the Belanglo Forest, as Milat told the Juvenile Justice counsellor. All the evidence indicates that it was Milat himself who decided on this location. 55The choice of location itself is a significant matter. The Belanglo Forest has assumed a form of notoriety in this State, as being the site where Milat's great uncle, Ivan Milat, lured a number of people and murdered them. Ivan Milat is now serving seven life sentences for these offences. 56As to the statements made by Milat around the time of the killing, virtually all of them support the inferences sought to be drawn by the Crown, namely that Milat had determined to kill the deceased at least by the morning of 20 November. The only statement which could in any way be construed as supporting the inferences urged by Mr Stratton was when Milat said later that night to Rachael "I understand if you're scared or worried, but he deserved it." 57The offender's actions at the time of the killing also support the Crown's interpretation of events. If, as Milat told the Juvenile Justice counsellor, his original intention had been to leave the victim after inflicting only the injury to the torso, then one must ask why did he not do precisely that? After the deceased was wounded in the torso, he cried out in pain and tried to run away from Milat. However the latter continued to chase him, saying amongst other things, "I'm fucking going to get you cunt" and "You're a fucking dead cunt Auchto". 58If any additional support were required for the proposition that this was a premeditated killing on the part of Milat, it can be found in the poems he wrote in custody some nine months later. Not only did Milat describe himself in one of these poems as a cold blooded killer, but the poem "Your last day", which I quoted earlier, has all the hallmarks of a gloated reminiscence of the deliberate tormenting and killing of the deceased. It is impossible to see this as the work of a man who had intended only to injure the deceased, but who succumbed to anger at the last moment and ended up killing him. 59In all the circumstances, I have no doubt whatsoever that the killing of the deceased by the offender Milat was a deliberate premeditated one, as submitted by the Crown. 60I turn now to discuss the evidence relating to the extent of premeditation on the part of the offender Cohen Klein.

Cohen Klein: Was there a prior agreement to kill the deceased? 61There is a significant dispute between the Crown and the defence as to the basis upon which the offender Klein should be sentenced for murder. The Crown submits that there was a prior agreement between Milat and Klein to kill the deceased, which was formed at least 12 hours before the killing took place. Mr Corr, who appeared for Klein, submitted that there was no such plan, and that Klein should be sentenced on the basis of an extended joint criminal enterprise. In other words, Klein's involvement was that he was party to an agreement with Milat that the latter would assault the deceased, and that he, Klein, would assist Milat in getting the deceased to a place where the assault could happen. He foresaw that grievous bodily harm might be caused, and nevertheless continued to participate. The possibility of death resulting was not part of the common purpose, nor was it within Klein's contemplation. It was on this basis that he entered his plea of guilty to murder. 62This is a very significant issue in the circumstances of this case. If, as the Crown submits, Klein was a knowing party to the deliberate killing of the deceased by Milat, then it places his level of culpability very high within the range of culpability for the offence of murder. On the other hand, if the circumstances are as Mr Corr submits, and Klein only contemplated that serious physical injury might be sustained by the victim, not that he might be killed, then it places the offence within the lower levels of culpability for murder. 63It goes without saying that the scenario submitted by the Crown must be proved beyond reasonable doubt. In other words, the scenario depicted by the Crown must be the only rational inference to be drawn from the facts established in the sentencing proceedings. 64The Crown relies on much of the evidence I have already described relating to Milat's state of mind as supporting the proposition that Klein knew, when they went into the Belanglo Forest, that the deceased was to be murdered. These include statements made by Milat earlier on the day of the killing in the presence of Klein. Milat said on more than one occasion that they would be killing "Auchto" that night. As to this evidence, Klein told police in his record of interview of 4 January 2011 that he did not believe Milat when he talked about killing the deceased. He assumed that Milat was "bullshitting," as he commonly did, particularly when he was trying to be "cool" in front of girls. 65The Crown further relies on what took place at the scene of the killing, as recorded on Klein's telephone. First, it is abundantly clear from this recording that is was Klein, not Milat, who suggested to the deceased that he get out of the car and come around to the boot. It was here that Milat first struck the deceased with the axe. In this regard, it is interesting to note that in both his records of interview, on 22 November and again on 4 January 2011, Klein lied to the police, saying that it was Milat who told the deceased to get out of the car and go to the boot. 66Immediately before the deceased was asked to get out of the car, Klein is recorded as saying: "Yeah, go it." Milat said: "Can you feel the adrenaline?" to which Klein replied: "Yeah." The Crown relies upon this exchange as supporting its version of events. However as Mr Corr points out, this exchange is equally consistent with a prior agreement to assault the deceased as it is with a more sinister one. 67Of considerably greater significance are the exchanges between Klein and Chase Day after the assault on the deceased had commenced. Whilst the deceased was crying out in agony, Day was remonstrating with Milat, saying: "Don't do this shit man. What the fuck you doing Matt." At much the same time Klein was recorded on a number of occasions as telling Day to get into the car. Day did so, and Klein got in beside him. During this time the deceased was running around the car trying to escape from Milat. Klein was holding his telephone with his arm extended out the car window. One can only assume that this was done deliberately for the purpose of recording what took place between Milat and the deceased. The recording also picked up parts of the conversation which took place in the car between Klein and Day. This is relied upon by the Crown in support of its contention that Klein was well aware that Milat was proposing to kill the deceased. Inside the car Day is recorded as saying: "Stop this cunt, Cohen." At which point Klein called out to Milat: "Just do it fuckin." A little later Day said to Klein inside the car: "Don't let him do it, that's Auchto." Klein said: "Just be quiet." 68Of very considerable significance is the following exchange which took place between Klein and Day a short time later. Klein: Chase will you still talk to me? Day: I will talk to you Klein: Don't say nothing... Day: No I won't.. Klein: Alright, I made sure. Take my hand. I made sure that you are fucking ... alright....I fucking made sure of it. He was talking about... he didn't want murder two.. That's why I told him... that I would keep you in the car and try talk to ya. Alright. ... See how much I'm squeezin' your hand.. Day: Yeah I do. Klein: That's how much I fuckin shaking mate. That's how much I mean it cunt. 69The Crown attached particular significance to the statement by Klein that Milat did not want to "murder two", the clear inference being that Klein knew that he intended to murder one person. As to this, Mr Corr submitted that when Klein made this comment he had finally realised, from what was happening outside the car, that what Milat had been saying earlier in the day about planning to kill the deceased was in fact true. I shall be returning to this later. 70No further relevant conversation was recorded between Klein and Day on the mobile phone. However the Crown relies upon the fact that Klein was deliberately recording everything that took place between Milat and the deceased outside the car. It was not until immediately after the fatal blow was struck that he turned off the recorder. 71In addition to the conversations which were recorded on the phone, Day said that whilst they were in the car he asked Klein: "Is he really going to kill him?" to which Klein replied "I think so." 72Mr Corr relied on a number of pieces of evidence as supporting his submission that Klein did not know, before the event, that the deceased was to be murdered. I have already referred to his second record of interview in which he said that he assumed that Milat was "bullshitting" when he talked earlier that day about killing the deceased. The fact that Milat had, on at least one other occasion, made a threat of violence which he failed to carry out, was supported by the evidence of a Ms Miller during the sentencing proceedings. There is also evidence that the next morning Klein showed clear signs of distress. He was described by Milat's friend Damien as looking stressed. His eyes were wide and he kept holding his stomach, then wrapping his arms up around his shoulders. 73In February 2012 Dr Olav Nielssen interviewed Klein at the request of his legal representatives. Klein denied knowing that Milat was intending to kill the deceased or that Milat had an axe in the boot of his car. He said that he recorded the incident on his telephone on the instructions of Milat. He told Dr Nielssen that at the time of the killing both he and Day were frightened that Milat might kill them. 74On the basis of all this material, Mr Corr submits that a reasonable doubt must exist as to Klein's knowledge, before the event, that Milat was intending to murder the deceased. 75On the other hand, Klein was, in some highly relevant respects, less than honest and open in his records of interview. In the first record of interview, of 22 November 2010, he said on three occasions that he did not know that Milat was going to do anything when they arrived at the Belanglo Forest, in particular that he did not know that Milat was planning to harm the deceased. He said that when they were in the forest it was Milat who asked the deceased to get out of the car and come to the boot. 76In his second record of interview, dated 4 January 2011, Klein admitted that Milat had talked earlier on 20 November about wanting to kill the deceased, but Klein said that he did not believe him, thinking that Milat was "bullshitting". During this record of interview he again said that it was Milat who asked the victim to get out of the car and come to the boot. He was asked in his interview where his mobile phone was when he was in the car. He said that it was in his pocket. He denied making any audio or visual recording with his phone. 77I must assume that the lies told by Klein in the records of interview were deliberate ones. No other reasonable explanation exists for the inconsistency between the accounts he gave in his first and second interview as to what Milat had previously said he intended to do in the Belanglo Forest. Nor could Klein's assertions that it was Milat who called the deceased to the boot of the car be based on a faulty recollection. Finally, Klein clearly knew that all of the events immediately leading up to the killing of the deceased were recorded on his telephone. Indeed, as already mentioned, he was holding the telephone outside the car for the clear purpose of making this recording. 78The fact that Klein deliberately lied in relation to these important matters at the very least impacts adversely upon his credibility when he later made exculpatory statements as to his prior knowledge of Milat's intention to kill the deceased. 79Mr Corr relied on the fact that Klein was looking stressed the next day, 21 November, as supporting the proposition that the killing of the deceased had been an unexpected and traumatic event. On the other hand, even if Klein had expected the deceased to be killed, the gruesomeness of the actual occurrences could easily have caused significant stress. In the circumstances, I regard this as a relatively neutral piece of evidence. 80One of the unusual features of this offence was that it was committed in the presence of a fourth person, Chase Day. Day was a friend of the deceased's, and Mr Corr relied upon the fact of his presence as rendering it unlikely that there was a prior agreement between Milat and Klein to kill the deceased. 81It is not entirely clear how it was that Day came to be with them that night. Klein said in his second record of interview that when they went to collect the deceased, Day was with him, and the two of them got into the car. Whether it was by pre-arrangement is not clear. 82In my view, the presence of Day in the car that night is in no way indicative of Klein's intentions when Milat collected the deceased and drove to Belanglo. Whether the deceased was to be killed or merely assaulted, it was unusual that this was to be done in the presence of a fourth person. Accordingly, I regard this also as a neutral piece of evidence. 83There is a clear body of evidence which supports the inferences urged by the Crown. Much of this comes from the recording taken by Klein. This recording clearly shows that it was Klein, not Milat, who called the deceased out to the boot of the car. It was there, a short time later, that Milat struck the deceased in the torso with the axe. The sound of the deceased crying out in agony is, to use Mr Stratton's word, chilling in the extreme. By that time, if the intention had merely been to assault the deceased, the object had already been achieved. Why, then, did Klein insist that Day get into the car and keep him there, presumably to stop him from interfering in what was happening between Milat and the deceased? And why did Klein continue to record what was going on outside the car? 84The whole of the evidence strongly supports the version of events submitted by the Crown. Nevertheless, without the evidence of what was said in the car, a reasonable possibility might still have remained that Klein did not know, until the fatal blow was struck, that the injuring and tormenting of the deceased was destined to lead to his death. A remote possibility might have existed that he thought that Milat's intention was to injure and humiliate the deceased, but not, in the end to kill him. The two pieces of evidence which, in my view, close the door on this hypothesis are first, the conversation in which Klein told Day that Milat "didn't want to murder two." (The "two" in this context is clearly the number two, not the word "too" meaning also). This in my view is a clear indication that Klein already knew that Milat was intent on murder. Similarly, when Day asked him: "Is he really going to kill him?" Klein replied "I think so." Again, this is not the response of a man who thought that Milat intended to injure, humiliate and taunt the deceased but then leave him alive. 85For all these reasons I am satisfied beyond reasonable doubt that, when the four of them went into the Belanglo Forest, Klein knew that Milat's intention was to murder the deceased. 86I turn now to discuss others matters relevant to sentence in relation to both offenders, commencing with the offender Matthew Milat.

Milat - General sentencing considerations 87Milat, as already mentioned, was a little short of 18 years old at the time of this offence. His birthday is on 29 December. Accordingly he is now approximately 19 ½ years old. His criminal history is extremely limited. His sole prior conviction was for a mid-range PCA offence which was recorded only two days before the killing of the deceased, namely on 18 November 2010. There is also evidence before the Court that, when he was about 14 years old, he sexually abused a 3 year old female relative. However charges in relation to this matter were not proceeded with, and in the circumstances it would be inappropriate to take it into account in these proceedings. 88Two psychiatric reports were tendered in evidence relating to Milat, from Dr Furst and Dr David Greenberg. From these reports, the following information emerges as to Milat's background. 89The offender grew up in the Moss Vale and Bargo area. He was the only child of a union between his mother and a man from whom she separated a year later. He has had very little contact with his natural father. Not long after their separation his mother married his stepfather and had three children whom the offender apparently considers his siblings. However, he had a turbulent relationship with his stepfather who on all accounts used to punish him excessively, and might have physically abused him. Milat's academic performance at school was apparently average. He was involved in sporting and other social activities, and on all accounts found it easy to make friends, at least on a superficial level. At about the age of 14 he apparently started using cannabis and later taking other drugs. Nevertheless, until one or two months before the offence, he was employed by a large company in the Newcastle area. It was after losing his job that he returned to live in Bargo. This was in October 2010, about one month before the offence. 90At the age of 16, Milat commenced a relationship with Kirsty, and they have a daughter who is now two years old. He started a relationship with another young person, Rachael, shortly before the current offence. He has, of course, been in custody for the past 18 months. During this time he has been in the juvenile detention system and has been starting to work towards his Higher School Certificate. He has been subject to minimal disciplinary action. 91I turn now to discuss the psychiatric evidence in relation to Milat. Dr Furst interviewed him at the Baxter Juvenile Justice Detention Centre on 3 May 2012 at the request of his legal representatives. He commented that Milat had a lengthy history of substance abuse. Dr Furst noted that there were no obvious signs of psychosis at the time of his interview. Milat was articulate and presented as having at least average intelligence. In response to a question as to whether Milat was suffering from any psychiatric or psychological condition, Dr Furst said that it was likely that he was dependent on drugs of abuse, particularly cannabis, amphetamines and the like at about the time of the offence. Milat showed no signs of schizophrenia or psychotic illness at the time of his assessment by Dr Furst, nor did the doctor consider that he was suffering from a serious mental illness at the time of the offence. Dr Furst expressed the opinion that Milat's abuse of drugs may well have had a destabilising effect on his mood and contributed to the level of anger he felt towards the deceased. He considered that Milat might well have a degree of personality dysfunction. He assessed Milat's risk of future violent offending as "moderate". 92Under the heading "Diagnosis", Dr Furst listed a "substance use disorder" (cannabis, amphetamines, alcohol) and "possible drug induced psychosis". He also noted, "Personality dysfunction not otherwise specified". 93Dr Greenberg saw Milat on 8 and 15 December 2010, and again on 8 June 2011. When he wrote his report dated 21 May 2012 he had been provided with Dr Furst's report of 15 May 2012. Dr Greenberg considered that Milat was an unreliable historian with regard to his use of illicit substances and alcohol. He noted the varied accounts that Milat had given to different people as to his use of drugs generally, and particularly on the day of the offence. Dr Greenberg agreed with Dr Furst that Milat was not suffering from any psychiatric illness, either at the time of the offence or during his later interviews. However he had significant personality problems which were evident from his admiration of his uncle's past criminality, his planning of this offence, his lack of empathy with the victim's cries, and his subsequent gloating about the offence. The doctor noted that these personality flaws are not dissimilar to those which are often described as psychopathy. He noted that psychopathy is not a specific psychiatric diagnosis. If it is present, psychiatrists tend to use the DSM classification, which is that of antisocial personality disorder. 94There was a degree of disagreement between Dr Furst and Professor Greenberg as to Milat's prospects of rehabilitation and the extent to which he poses a risk of future dangerousness. Dr Furst considered that his risk of future violent offending is moderate. This risk, the doctor commented, might also be reduced through Milat's engagement in a suitable program such as the Violent Offenders Treatment Program. Professor Greenberg, whilst acknowledging that future risk is difficult to ascertain, regarded Milat's risk factor as much higher than that of the average person charged with a violent offence. Professor Greenberg in his evidence acknowledged that Dr Furst had the advantage of interviewing Milat with particular reference to the issue of future offending. Nevertheless he considered that Dr Furst's assessment of a moderate risk did not take into account all the personality issues relating to the offender or the nature of the offence itself. 95A considerable amount of evidence was devoted to this issue of future dangerousness. This is clearly a central issue to be determined in these proceedings. Nevertheless I do not propose to go through the details of the risk profile assessments that were conducted in relation to Milat. These generally related to adults, and therefore to people who were more likely to have been involved in the criminal justice system before they committed the particular offences which brought them before the court. Accordingly these assessments are of limited value in relation to someone who was still a juvenile when he committed this offence. In addition, the assessments produce actuarial results which fail to take into account the circumstances of the particular offence. Dr Furst acknowledged that this was "a big limitation". 96An assessment of the offender Milat's future dangerousness is closely linked with the issue of remorse, to which I now turn. 97Over recent times Milat has purported to express remorse for the killing of the deceased and he has purported to apologise to the deceased's family members. However, I am quite unable to accept that these are genuine expressions of remorse. In my view they were written for forensic purposes only, and were not expressions of genuine regret. They are entirely inconsistent with every other aspect of Milat's presentation following the commission of this offence. In particular, the poems which he wrote whilst in custody some nine months after the offence were totally inconsistent with any regret or remorse about his actions. In fact the opposite is the case; he almost appeared to revel in the memory of this terrible event. 98Both psychiatrists who interviewed Milat noted his lack of empathy. This is entirely consistent with an absence of remorse. 99Reference has also been made to the drugs and alcohol apparently consumed by Milat earlier on the day of the killing. His intoxication was, in one sense, relied upon by Mr Stratton as reducing his culpability for the offence. However, as Dr Greenberg observed, Milat has been an unreliable historian with regard to his use of illicit drugs and alcohol. He has given significantly divergent accounts of his drug taking, both in general and also on the day of the offence. Accordingly I am unable to determine whether drugs and/or alcohol played any significant part in Milat's actions at the time. 100Having regard to whole of the evidence relating to this issue, I consider that Milat, with his personality dysfunctions and his lack of empathy, poses at best a substantial risk of violent re-offending. In short, he remains a serious potential danger to the community. 101I now turn to the aggravating and mitigating factors as provided in s 21A of the Crimes (Sentencing Procedure) Act 1999. The following aggravating factors, which are not inherent in the offence itself, apply in relation to Milat.

• The offence involved the actual use of a weapon (s 21A(2)(c)). In this regard, the double bladed axe use by Milat to first injure and later kill the deceased was, as the Crown submits, most unusual and must have struck incredible fear in the heart of the deceased.
• The offence was committed in company (s 21A(2)(e)). The deceased was betrayed by two people whom he regarded as friends. The fact that they acted in company clearly aggravated the seriousness of the offence. The deceased had no opportunity whatsoever to escape.
• The offence involved gratuitous cruelty (s 21A(2)(f)). This is the most serious of the aggravating features of this offence. The Crown referred to the deceased as being tortured and tormented. Mr Stratton cavilled at the word "tortured", but in the extraordinary circumstances of this case I consider it an apt one. For the last ten minutes of his life, when he was already seriously injured, the deceased was subjected to unimaginable torment by Milat. It is virtually impossible to describe the horror of the deceased's circumstances during those last minutes.
• The offence was a planned one (s 21A(2)(n)). I have already discussed this issue. It is perfectly clear that this was a cold blooded premeditated killing on the part of Milat. 102It is also relevant here to discuss Milat's motive for committing this apparently senseless and brutal murder. As already indicated, I completely reject any suggestion that the deceased himself did anything whatsoever to provoke Milat. Given the whole of the circumstances, and particularly the fact that the killing of the deceased was graphically recorded on the co-offender's mobile phone, I can find no other motive than that submitted by the Crown, namely that this was a "thrill kill" on the part of Milat. In other words, he took the life of an innocent young man, who was unfortunate enough to be his friend, in an unimaginably cruel, brutal and violent manner, solely for his own personal enjoyment. That any person, who is not suffering from a psychiatric disorder, could behave in such a manner is almost inconceivable. However, the evidence in this case all points in that direction. 103I turn now to the mitigating factors under s 21A. There are no mitigating factors in relation to the offence. There are however, two mitigating factors in relation to Milat himself. These are, first, that he has no significant record of previous convictions and is therefore taken to have been a person of good character; second, that he entered a plea of guilty to this offence. In this regard, Milat pleaded guilty to murder in the Children's Court and adhered to the plea when he was arraigned in this Court. The Crown concedes that the plea was entered at the first available opportunity. In the normal course of events it would therefore attract a significant discount on sentence. However for reasons I will give later, I do not consider it appropriate to apply a discount in the case of this offender. 104In the extraordinary circumstances of this case, given all the matters I have mentioned, I consider that this case clearly falls within the worst category of cases of murder. 105Section 61(1) of the Crimes (Sentencing Procedure) Act provides that a Court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. Sub-s (6) provides that "[t]his section does not apply to a person who was less than 18 years of age at the date of commission of the offence." It follows that, notwithstanding the extreme gravity of this offence, the Court retains a discretion to deal with it other than by imposing a sentence of life imprisonment. In the present case, given the youth of the offender and the difficulty in predicting future dangerousness so far into the future, I propose to impose a determinate sentence. However, in the extraordinary circumstances of this case, it must be an extremely lengthy one. 106Mr Stratton sought that I make an order under s 19 of the Children (Criminal Proceedings) Act enabling Milat to serve his sentence in a juvenile detention centre until he is 21, so that he might have the opportunity to complete his Higher School Certificate. This opportunity does not exist, at least to the same extent, in adult gaols. However given the fact that Milat was only a month short of his 18th birthday at the time he committed this offence, and given the very long sentence he will be serving, I do not think it appropriate for him to return, after sentence, to a juvenile detention centre. Accordingly I decline to make such an order. 107At this point I return to discuss the consequences of Milat's plea of guilty. It was entered after the police had discovered the recording of the killing on Klein's mobile phone. The plea of guilty in these circumstances denotes a recognition of the reality of Milat's situation, rather than any indication of remorse. Nevertheless, the utilitarian value of such a plea, in the normal course of events, would lead to a sentencing discount of between 10 and 25 per cent (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383). However, the Court of Criminal Appeal in that case recognised that in some circumstances the protection of the public requires such a long sentence to be imposed that no discount is appropriate. The Crown submits that this is such a case. 108I cannot but concur with this proposition. Taking into account the extreme gravity of the crime committed by Milat and the serious danger which he presents to the public I consider that the utilitarian value of his plea of guilty should not be productive of a reduction in sentence. 109I shall impose my formal sentence upon the offender Milat after discussing the sentencing considerations relating to his co-offender Klein, to which I now turn.

Klein - General sentencing considerations 110Klein was 18 at the time of the offence. He was about three months older than Milat, but Milat was clearly the dominant personality of the two. 111Klein was the youngest of three boys in a family which appeared to have a strong work ethic. He had an apparently stable childhood, living first at Greenacre and later at Bargo in the Southern Highlands. He was an average student. He left school part way through Year 10 and was employed in unskilled occupations for about half the time between then and his arrest. As with Milat, his only previous convictions relate to driving matters when he was still a juvenile. In July 2008 he was convicted of negligent driving and being an unlicensed driver for which he was fined and disqualified from driving for six months. 112Two psychiatric reports were tendered in Klein's case, from Dr Olav Nielssen and Professor David Greenberg. However, Professor Greenberg did not have an opportunity to assess Klein personally. Accordingly his report is restricted to the issue of future dangerousness, based only on a review of the relevant documentation. This means that I have only Dr Nielssen's opinion relating to Klein's psychiatric condition. Dr Nielssen also gave evidence in the sentencing proceedings. 113Klein told Dr Nielssen that he began drinking alcohol at around the age of 15, but was not a problem drinker. At much the same time he also began taking cannabis and had been a daily cannabis smoker until the time of his arrest. He had occasionally tried other drugs but his drug of choice was cannabis. Dr Nielssen diagnosed him as suffering from substance abuse disorder which was then in remission, due to his detention in a largely drug free environment. This diagnosis was made on the basis of Klein's accounts of experiencing paranoia and impaired mental performance associated with his use of drugs. 114There is no suggestion that Klein suffers from any psychiatric disorder. Professor Greenberg considered that he had significant character or personality traits which had features of personality difficulties. This was based, of course, on the documentary material, including the circumstances of the offence itself. 115It is difficult to determine to what extent, if any, Klein is remorseful for his participation in these offences. He told Dr Nielssen that he had been severely affected by intrusive unwanted memories of the offence accompanied by disturbed sleep and anxiety symptoms. After taking medication these symptoms had abated. In one sense, this could be taken as an indication of remorse. Dr Nielssen considered that Klein's drug use was a major contribution to his loss of judgment around the time of this offence. Klein said that on release from custody he no longer intended to use drugs. On this basis Dr Nielssen expressed the opinion that Klein can be "successfully rehabilitated to a productive and law abiding way of life." 116It is pertinent to note, however, that during his interview with Dr Nielssen, Klein continued to minimise his role in the offence, saying that he did not believe that Milat would actually carry out the killing as he had said he would. Dr Nielssen agreed in cross-examination that, if Klein's role was in fact as substantial as was put to him by the Crown, then it would suggest that Klein was a more callous and perhaps antisocial person that he had previously considered, which would in turn influence his prospects of rehabilitation. 117Professor Greenberg's report, dated 20 May 2012, was based upon the available documentary material, including Dr Nielssen's report of 18 March. Professor Greenberg noted that Klein had given contradictory information with regard to his cannabis use on the day of the killing. In his first record of interview, he stated that he was sober and not on drugs that day. In his second interview on 4 January 2011 he said that he had been smoking cannabis that morning. 118Professor Greenberg also noted that there was no mention of remorse during Klein's interview with Dr Nielssen. Klein was at all times in that interview trying to minimise his role in the offence. In Professor Greenberg's opinion Klein's drug use, although a disinhibiting factor in his judgment, could not in itself explain his behaviour on this occasion. The Professor considered that Klein has character or personality problems with antisocial features which provide a partial explanation for his involvement in the killing of the deceased. 119Finally Professor Greenberg noted that it is difficult to make meaningful long term predictions about dangerousness given Klein's youth and the limited available evidence. He was, as he put it, more cautious than Dr Nielssen in his assessment of Klein's prospects of rehabilitation. 120My conclusion in relation to Klein's prospects of rehabilitation is as follows. I do not accept that drugs played a significant role in his behaviour on the day of the killing. They might have clouded his judgment to some extent, but not enough to markedly reduce his culpability. He was not suffering from any psychiatric illness at the time, although he had personality defects which contributed to his role in the killing. His continued denials as to the extent of his role is, in one sense, inconsistent with genuine remorse. On the other hand, he is almost certainly an impressionable young man who was strongly influenced by his co-offender Milat. He has no previous record of any offence of violence. This being the case I would assess his prospects of rehabilitation as at least moderate and possibly more favourable. This, of course, is a highly significant matter on sentence. 121I turn now to the aggravating and mitigating factors under s 21A of the sentencing legislation. The same aggravating factors apply in relation to Klein as do in relation to Milat, namely:

• The offence involved the use of a weapon. Klein denied knowing that Milat had the axe in the boot of the car. However, in the light of his other denials relating to matters which are now firmly established, it is difficult to reach any firm conclusion as to whether he knew that this particular axe was in the car. Given that their joint intention that night was to kill the deceased, Klein must have realised that some form of weapon was available to Milat.
• The offence was committed in company. In this regard it was Klein who provided the support for Milat during the course of this killing, first by occupying Day and ensuring that he remained in the car, and also by recording the horrific circumstances leading up to the final blow.
• The offence involved gratuitous cruelty. I have already referred to the almost inconceivable torment and torture suffered by the deceased in the last ten minutes of his life. This was directly at the hands of Milat, not Klein. I think that it is very possible that the actual level of torment and humiliation inflicted upon the victim was greater than Klein had anticipated. This would do much to explain his symptoms of stress the following day. Accordingly, whilst this is an extremely serious aggravating factor in the case of both offenders, it is much more significant in the case of Milat, who actually inflicted the cruelty, than in the case of Klein.
• The offence was planned. I have already given my ruling that Klein well knew, when they went to the Belanglo Forest, that Milat was intending to murder the deceased. 122Before I turn to any mitigating factors, I should conclude my assessment as to the level of the seriousness of the offence of murder, as committed by Klein. In my view it falls well within the serious range. I am not satisfied, however, as the Crown urges, that Klein was himself expecting to get a thrill out of the killing of the deceased. I consider it likely that he was significantly under the influence of Milat when he agreed to go with him, assist in the killing of the deceased and also to record it. This recording was probably for the future edification of Milat, rather than of Klein. Klein's culpability is of a significantly lower degree than that of Milat, but it is still well within the serious range of culpability. 123There are no mitigating factors relevant to the offence itself. As to mitigating factors relevant to the offender, the same factors apply to the offender Klein as did to Milat. Klein has no significant record of previous convictions and is therefore taken to be a person of good character. He pleaded guilty to murder in the Local Court. This was the first available opportunity and in his case he is entitled to a discount for the utilitarian value of the plea. The Crown submitted, and I accept, that the utility of the plea has been somewhat diminished by the disputed facts which necessitated the playing in court of traumatic portions of the recording of the murder. In these circumstances I consider that the discount attributable to the plea should be towards the lower end of the range of discounts, which is from 10 to 25 per cent. The sentence I am about to impose has been adjusted accordingly. 124Finally I turn to deal with a few general matters which relate to both offenders. 125Both of them are still very young: only 19 ½ years old. This is clearly a relevant matter throughout the sentencing process. 126The standard non-parole period for murder is 20 years imprisonment. However for the murder of a child under 18 years of age it is 25 years imprisonment. The standard non-parole period is now to be used as a guide only (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120). Mr Corr submitted, and I accept, that the higher standard non-parole period for the killing of a child is attributable to the fact that a child is likely to be a defencelessness victim. In the present case, although technically still a child, the deceased was a fully grown male who was only a year younger than the two offenders. In these circumstances, the rationale for extending the standard non-parole period beyond the normal 20 years is significantly reduced. I accept this to be the case, and in so far as I am deferring to the standard non-parole period, I will take this into account. 127Extremely moving victim impact statements were read in court by members of the deceased's family: his mother, Donna Locke, his father, also David Auchterlonie, his grandfather, again also David Auchterlonie and his grandmother Sandra Auchterlonie. These eloquently expressed the horror and grief suffered by the family and friends of young David Auchterlonie, given his underserved and unexpected death and the terrible circumstances surrounding it. I would like to express my personal condolences and those of the Court for the loss of their loved one. I take these statements into account in the manner provided by the legislation. 128The Crown does not dispute that special circumstances exist in the case of both offenders which justify a departure from the statutory ratio between the non-parole period and the balance of the sentence. The special circumstances are: the youth of the offenders, the fact that this is their first term of imprisonment, and the likelihood that they will need a lengthy period of supervision upon their release from custody. 129Both offenders have been in custody since the 22 November 2010 and their sentences are to commence on that date.

SENTENCE 130Matthew Milat for the offence of murdering David Auchterlonie I sentence you to imprisonment to be served by way of a non-parole period of 30 years to commence on 22 November 2010 and to expire on 21 November 2040. The balance of the term of your sentence will be 13 years to commence on 22 November 2040 and to expire on 21 November 2053. The earliest date on which you will be eligible for release on parole will be 21 November 2040. 131Cohen Klein for the offence of murdering David Auchterlonie I sentence you to imprisonment to be served by way of a non-parole period of 22 years to commence on 22 November 2010 and to expire on 21 November 2032. The balance of the term of your sentence will be 10 years to commence on 22 November 2032 and to expire on 21 November 2042. The earliest date on which you will be eligible for release on parole will be 21 November 2032. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2012