R v Perish; Perish & Lawton

Judgment 1HIS HONOUR: Anthony John Perish and Matthew Robert Lawton have been found guilty by a jury of the murder of Terrence Falconer on or about 16 November 2001. They were also found guilty by the jury of conspiring with Andrew Michael Perish between 1 January 2001 and 17 November 2001 to murder Mr Falconer. 2Andrew Michael Perish was found guilty by the jury of conspiring with Anthony John Perish and Matthew Robert Lawton between 1 January 2001 and 17 November 2001 to murder Mr Falconer. 3The maximum penalty for the crime of murder is imprisonment for life. The maximum penalty for the crime of conspiracy to murder is imprisonment for 25 years. 4The offences were committed in 2001. I am required to sentence the offenders in accordance with the sentencing practice as at the date of the commission of the offences and not as presently prevails: R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368. Part 4 Division 1A - standard non-parole periods of the Crimes (Sentencing Procedure) Act 1999 which came into force on 1 February 2003 does not apply to the present sentences. Sections 3A and 21A of the Crimes (Sentencing Procedure) Act, however, do apply. 5It is my duty to determine the facts relevant to sentencing each offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against an offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. 6At trial and the proceedings on sentence, Mr Leask appeared for the Crown, Ms Davenport SC appeared for Anthony Perish, Mr Hanley SC appeared for Matthew Lawton and Mr Terracini SC appeared for Andrew Perish. 7The jury was satisfied beyond reasonable doubt that each of the offenders had agreed to kill Terrence Falconer. 8The genesis of the conspiracy was the unsolved murders on 14 June 1993 of Anthony and Frances Perish, the grandparents of the offenders Anthony Perish and Andrew Perish. The police investigation under the name of Strike Force Seabrook had been unable to identify who had murdered them. 9Anthony Perish and Andrew Perish became motivated to kill Mr Falconer as they believed he had been involved in the murders. 10Another motive for Andrew Perish to kill Mr Falconer was that he was shown by Elizabeth Falconer (the deceased's wife) at a Penrith Hotel around March/April 2001, a document which identified Mr Falconer as being prepared to assist police as an informer in respect of the activities of the Rebels motorcycle club in Dubbo. Andrew Perish had been a member of the Rebels motorcycle club. 11In 1998, [B], ... received a phone call during which he was told that Terrence Falconer killed the Perish grandparents. The following day, [B] and his wife met Anthony Perish and discussed with him what they had been told. 12Around March 2001, Anthony Perish met [B] at a Double Bay restaurant and asked whether he could obtain from his brother-in-law, a serving NSW police officer, some police uniforms. [B] did not ask the offender why he wanted them nor did the offender tell him. [B] told the offender about a month later his brother-in-law would not do it, but [B] had not in fact asked him. 13On 9 July 2001, Andrew Perish met Detective Inspector Ruse, a member of Strike Force Seabrook and told him that "Terry Falconer or Faulkner" had admitted to the murders of Anthony and Frances Perish, to two employees of a motor vehicle wrecker's business in Sydney. Andrew Perish said that it was the owner of the business, who gave him the information, but the owner was in gaol and would not speak to police. The police had received information from other sources which suggested that Terrence Falconer was involved in the murders. Detective Inspector Ruse formally interviewed the deceased who denied the allegations. 14The Crown case against Andrew Perish was based essentially on the evidence of [A]. He was also an important witness in the Crown cases against Anthony Perish and Matthew Lawton. The jury was satisfied beyond reasonable doubt that [A] gave honest and reliable evidence. [A] lived on a property at ... . 15In early October 2001, Denise Lawton arrived at the ... property telling [A] that she had a message from 'Rooster', a name by which he knew Anthony Perish. She handed him $1,000 in cash and told him to buy some decent clothes to go to dinner in. She said, "Andrew will come and see you in a couple of days." Andrew Perish was "Andrew". 16On 11 October 2001, Andrew Perish went to the ... property before lunch, saying to [A] that he would be back at 7pm that night, and they would go and have dinner with "our mate". "Our mate" was Anthony Perish. 17Andrew Perish drove [A] that night to Newtown where they had dinner with Anthony Perish at a local restaurant. During the dinner, Anthony Perish said to [A], whose nickname was 'Nosey': "So Nosey, what can you do for the company?" To which he asked, "What would the company have me do for them?" Anthony Perish asked him if he had a boat to which he replied, "It's fucked at the moment". 18[A] said that he had a 4.9 metre Markham Whaler with a twin Evinrude horsepower engine on it, which was in mechanical disrepair. There was further discussion about the boat during which Anthony Perish asked [A]: "If I give you a couple of grand tomorrow, you put it in and get it fixed". Andrew Perish was present during the whole conversation. Anthony Perish asked Andrew if he could give [A] the couple of grand on the way home. 19During the dinner, Anthony Perish said to [A]: "I want you to put the boat in and come up the Karuah River to Bulahdelah. There's a wharf up there, come up to the wharf and I will be waiting for you just like a fisherman with a couple of esky's because the cunt might be in a few pieces." Anthony Perish was referring to Terrence Falconer. The offenders planned to kill him, dismember his body and to dispose of the body parts by using [A] and his boat. 20There had been discussion during the dinner at Newtown that a mobile phone would be dropped off to [A] by the person who drove the truck down to Adelaide when [A] had moved to that city. This was the offender Matthew Lawton. 21Whilst Andrew Perish was driving [A] back to the ... property, they stopped at his home in Eagle Vale. Andrew Perish picked up $2,000 from inside his house and gave it to [A]. 22The next morning, [A] took the boat to Marine Scene at Campbelltown and, after further phone calls, obtained a quotation as to the cost of the boat repairs. He spoke to Andrew Perish informing him that during the initial work on the boat, another problem had been found. The power head on the left- hand motor needed replacing at a cost of $4,000 alone. [A] asked Andrew Perish what he wanted to do and was told to "get it done". 23Andrew Perish subsequently gave [A] $1,500 in cash at the ... property and $3,000 in cash at Daniel Perish's place at Rossmore. The money was to be applied to the cost of repairing the boat. 24Matthew Lawton delivered a 'Motorola Talkabout' mobile phone (the McDowell phone) to [A] at the ... property. He told [A] to keep the phone on and charged and not to contact anyone else other than Anthony and Andrew Perish. The phone was in the name of John McDowell and was activated by [A] on 29 October 2001. 25On 31 October 2001, [A] had travelled to Salamander Bay to undertake a reconnaissance of the regional waterways. He had purchased from the Newcastle Water Ways Office four maps of the surrounding waters. 26Anthony Perish visited [A] at the ... property at least three times after the dinner. On each occasion, Matthew Lawton drove him to the property. During the second last visit, Anthony Perish handed [A] a document that [A] described as being a police document with Terry Falconer's name on it. He said that the document stated that Terry Falconer was prepared to give evidence against the Rebels motorcycle club in Dubbo as to their drug dealings. Although Anthony Perish had never been a member of the Rebels motorcycle club, his brother Andrew was a former member. I am satisfied beyond reasonable doubt that Anthony Perish believed that Mr Falconer was a police informer, which provided added justification for his plan to kill the deceased. 27[A] and Anthony Perish discussed the Karuah River and where the boat was going to be put in. Bulahdelah was eliminated because of the four or five knot speed restriction throughout the river. 28During the last visit on 9 November 2001, one week before Mr Falconer was murdered, there was a discussion between [A] and Anthony Perish about the boat being ready. Anthony Perish said to [A]: "Get onto it, hurry up, because this cunt goes this Friday regardless." He also said: "You'll come up, you'll pick up a couple of eskys, you'll go out and take them out to the continental shelf. You will empty out the contents over a big hole using a depth sounder. On the way back wash those eskys out halfway back and throw them over the side. When you get back, wash the boat out with ammonia." 29Anthony Perish went on to say: "If you wash it out with ammonia they can tell there's been blood in the boat but they can't tell whose it is, it fucks the DNA" 30The offender told [A] that he was not coming with him and that was what [A] was being paid for. [A] understood that the plan had changed as Anthony Perish no longer intended accompanying him on the voyage to dispose of Mr Falconer's body parts. 31[A] decided not to participate in the dumping of the body parts as he had come to fear for his own safety. All incoming calls to his mobile phones were diverted after 12 November 2001, and attempts by Andrew Perish to ring him on 14 and 15 November 2001 were unsuccessful. [A] took no further part in the plan to kill Terrence Falconer. 32Anthony Perish had initially engaged [E] to investigate the murder of his grandparents but subsequently planned for Terrence Falconer to be abducted by [E] and taken to the premises where he was living at Kirkpatrick Street, Turramurra. 33Mr Falconer had been serving a term of imprisonment for drug offences. He was nearing the end of his sentence and had been classified as a minimum security prisoner which made him eligible for work release. An electronic monitoring bracelet had been fitted to his ankle on 28 March 2001 and he had been sponsored for work at Wreck-A-Mended Smash Repairs at Ingleburn. He commenced work on 17 May 2001 and his usual hours of work were 8am to 4.30pm. Mr Falconer was required to be back at Silverwater prison by 7pm. 34About three months before the murder, Anthony Perish approached [E] with his plan to abduct Mr Falconer, whilst he was on work release. [E] was told by Anthony Perish to obtain a van, a lockbox and to look like police so that Mr Falconer could be taken from his work. Anthony Perish told him to handcuff Mr Falconer as he would put up a fight and put an anaesthetic, like chloroform over his mouth. 35[E] recruited [H] and Craig Bottin (Bottin) to assist in the abduction. [H] met [E] in the middle of 2001, during which [E] said to him, "Look, there's a job that has come up. There's a guy who needs to get information, a guy who has done terrible things. He's a scumbag and he needs myself and Craig to help him out with this because this is a guy who is able to take care of himself". During a second meeting between [E] and [H], [E] told [H] that they were to dress up as police officers and to pretend to arrest Mr Falconer for questioning. [E] said that he would use chloroform to subdue Mr Falconer after he had been taken. [H]'s role was to be the driver of the vehicle and Bottin would assist [E] in the arrest. [H] and [E] reconnoitred the smash repair business in preparation for the abduction. 36Matthew Lawton obtained steel wheel rims and painted them silver at Anthony Perish's premises at Turramurra, so that the rims on [E]'s VT Commodore would resemble the rims on a police vehicle. [E] had been staying with Anthony Perish and intended using his Commodore in the abduction. He delivered the vehicle to [H]. 37On the afternoon of the abduction, [E], [H] and Bottin met at a grassy embankment close to Wreck-A-Mended Smash Repairs. [E] had parked a white van at the rendezvous, where they changed their clothes and the Commodore's appearance was altered to look like an unmarked police vehicle. The hubcaps were removed, the licence plate changed and an aerial was placed on the back window. 38Around 3pm, [H] drove [E] and Bottin in the Commodore to Wreck-A-Mended Smash Repairs. [H] was wearing a blue police shirt with shoulder patches and blue pants. He remained in the vehicle. [E] and Bottin were wearing business suits to look like detectives and were armed with 'Glock pistols'. 39Mr Falconer had arrived for work at about 8am. [E] and Bottin went into the premises, presented police identification badges to employees and were taken to Mr Falconer. [E] conducted a body search on Mr Falconer, who he then handcuffed with handcuffs that Anthony Perish had given him. Mr Falconer was placed in the rear seat of the Commodore between [E] and Bottin. 40At trial, [H] gave evidence to the effect that when they reached the grassy embankment, he heard a scuffle in the backseat. He turned around and saw [E] placing a rag with chloroform on it, upon Mr Falconer's mouth. [H] said that Mr Falconer was putting up a bit of a struggle, but [E] continued to apply the rag to his face and Mr Falconer was rendered unconscious. In the electronically recorded interview (ERISP) that [E ] entered into with police on 22 January 2009, [E] recounted that, after putting his handkerchief in the chemical that was in a "big orange juice bottle", he placed the handkerchief over Mr Falconer's face, but Mr Falconer was struggling and trying to hit him with his handcuffed hands. Bottin helped him to subdue the deceased, who continued to struggle, but after about another thirty seconds became dopey. During his evidence before the jury, [E] remembered that when he held the rag over Mr Falconer's mouth, that he struggled violently and it took a while to subdue him. [E] agreed that he told the Magistrate at the committal hearing, that Bottin physically came over and that he, [E], put pressure down on the deceased's hand and chest. He said that he was protecting himself from being hit in the head with handcuffs. [E] did not recall having to punch Mr Falconer, nor did he see Bottin punch the deceased to the right side of the face. 41During the trial, [E] told the jury that he carried Mr Falconer from the Commodore to the white van with either the assistance of Bottin or [H]. The monitoring bracelet had been removed from Mr Falconer's ankle and discarded. In the van was a box that he had purchased from a hardware store for the purpose of putting Mr Falconer in it. In his ERISP, [E] said that the box was made of "galvanised tin, or tin plate maybe, like one you buy at Bunnings but more heavy duty." It was close to six feet in length, but there were no additional holes drilled into it. Professor Yeomans examined various metal items that police had located at 158 Brooks Road, Girvan in March 2009. He concluded that the items were consistent with the base, the side and the lid of a metal box. Professor Yeomans estimated that the box would have been 500mm wide, 500mm high, but somewhat in excess of 760mm long. The box was made of an older style of sheet metal. I am satisfied that this was the box which was in the white van. 42The jury was told by [E] that when Mr Falconer was placed in the box, he was not on his face. Mr Falconer was neither talking nor were his eyes open. [E] drove the van to Turramurra but did not recall by what route he drove there. He remembered that when the box was opened in Anthony Perish's garage at Turramurra, Mr Falconer looked "pretty crook", but he thought that Mr Falconer was alive. In cross-examination by Mr Hanley, he said that Mr Falconer was not just lying there, he gasped, his torso went up, and he looked in a pretty bad way. 43In his ERISP, [E] told police that Mr Falconer was coughing more and more and had been in the box "for quite a period of time". When the box was opened, Mr Falconer started to get up and [E] put his foot at Mr Falconer's torso as he thought "he was going to try and up and at us". [E] said that Anthony Perish grabbed Mr Falconer's head, slammed it down, pulled up his shirt and he saw a Gypsy Joker tattoo. [E] recounted that Anthony Perish closed the box, which Perish and Matthew Lawton put into the tailgate of a utility. Anthony Perish directed [E] to go with Matthew Lawton in the utility to Girvan, whilst Anthony Perish got rid of the white van. [E] described a slow journey to Girvan and the box not being opened until Anthony Perish arrived some time later. [E] said that when the box was opened at Girvan, Mr Falconer was dead. 44During the trial, competing issues arose as to the cause and the time of the death of the deceased being whether: (a)as a result of being assaulted, chloroformed, placed in the metal box and being driven in the white van from the grassy embankment to Turramurra, the deceased died during the journey and was not alive when the box was opened in Anthony Perish's garage at Turramurra; or (b)the deceased was alive at Turramurra but dead when the box was opened at 158 Brooks Road, Girvan. 45The Crown case at trial was that irrespective of when and how the deceased died, Anthony Perish and Matthew Lawton were guilty of his murder. It is unnecessary to repeat here, the directions provided to the jury. During the proceedings on sentence Ms Davenport and Mr Hanley submitted that the time and the manner of the deceased's death impacted upon the determination of the moral culpability of the offenders and the objective seriousness of their actions, whereas Mr Crown contended that it had no impact whatsoever. As I do not agree with the Crown's argument, it is necessary to consider this issue in some detail. 46Ms Davenport and Mr Hanley submitted that the court would not be satisfied beyond reasonable doubt that Mr Falconer was alive when he arrived at Turramurra. They referred to [E] admissions to [H] and [C] and to the evidence of Professor Lyons as supporting the reasonable possibility that the death could have occurred before the arrival at Turramurra. Mr Crown invited the court to accept [E]'s account in the ERISP and directed attention to independent support for his evidence. 47In his closing address to the jury, Mr Crown referred to 15 matters of evidence that were said to independently support [E]'s testimony in the trial. Of particular significance to the present question, is the evidence of Professor Lyons of the Gypsy Joker tattoo seen on the deceased's remains during the autopsy and the evidence of bruising to the deceased's face. 48Dr Lee, who conducted two autopsies on the deceased's dismembered remains, found an ill-defined area of bruising extending from the lateral right cheek past the outer aspect of the eye, involving the right lateral forehead and extending into the hairline. There was also an ill-defined area of apparent bruising situated over the right side of the jaw midway between the point and the angle. Dr Lee was unable to determine the cause of death. 49The onus is on the Crown to prove beyond reasonable doubt that Mr Falconer was alive, when he arrived at Turramurra. 50In his evidence at trial, [H] said that Mr Falconer was unconscious when he was carried from the car to the box in the van. Whilst unconscious, he was placed lying on his back in the box. Mr Falconer appeared to be breathing, because he was snoring and his chest was rising up and down. [H] told the jury that his main concern was that once the box lid was closed, Mr Falconer might not be able to breathe. There was, he said, no obvious part of the box where air could get in and he could not see any air holes drilled in it. When he expressed his concern to [E], [E] told him that the deceased was not going to be in the box for long, it was going to be a short journey and the deceased would be returned back to Wreck-A-Mended Smash Repairs before the day was out. 51Detective Sergeant Browne gave evidence that the police had timed how long it took to drive from the smash repairs at Ingleburn to Kirkpatrick Street, Turramurra, not exceeding the speed limit and replicating the route that existed on 16 November 2001, before the M5 freeway extension was built. The journey took police between two hours and fifteen minutes and two hours and forty minutes. 52Professor Lyons gave evidence that chloroform was no longer used as a modern anaesthetic because it was dangerous to the heart and liver. He explained that someone who is unconscious and lying on his back, has an unprotected airway, so that there is a tendency for the structures of the mouth to fall backwards. One clinical sign of a restriction of the airway was snoring. In a limited amount of oxygen, the process of respiration would raise the level of carbon dioxide. Professor Lyons said that oxygen would be consumed, carbon dioxide produced, the level of which could adversely affect the brain and the heart to the point that ultimately breathing could stop. Professor Lyons considered it was a possibility where someone was in a very restricted area, snoring on his back having been subjected to some form of anaesthesia that death could occur within two hours. 53[H] gave evidence that a couple of days after the abduction, he and [E] had lunch at a restaurant in Double Bay. [E] said words to the effect of, "Look, I don't know if you have heard or read anything, but Falconer had to go. He was going to rat us out." [H] said that [E] brought up the topic again about an hour and a half later. [E] said Falconer was not giving him the answers he wanted, that Falconer was being "a smart arse" and he chopped Falconer's head off. [H] described [E] as being very happy with how things had gone and with how professional they had been on the job. 54[C], who had been [E] business partner, told the jury that [E] asked him if he had seen an article about a person being abducted from a panel beater's shop by police. During the conversation, [E] said that he, [H] and "Skits" (Bottin) had done it, that [H] was wearing the police uniform and the plates had been stolen from a police car. [E] went on to say: "We went into the panel beater's shop and..., we told them we were cops, we showed them a badge. We grabbed Falconer and put him into the car. There was a struggle in the back seat. I hit him too hard and he died. I really fucked up, I was only supposed to take him to somebody else to be tortured. I fucked up." 55It is plain that [E] 's account to [H] that he had chopped Mr Falconer's head off was an exaggeration. His disclosure to [C] that there had been a scuffle in the backseat is consistent however, with [H]'s recollection of a struggle after they arrived at the grassy embankment. Although [H] did not see [E] strike the deceased, the struggle was not inconsequential. [H] was instructed by [E] to have both the interior and exterior of the Commodore cleaned. In cross-examination by Mr Hanley, [H] agreed that there was a direction from [E] specifically aimed at cleaning up some scuff marks that were on the back of the front seats which he understood had been caused in the struggle. I consider it to be a reasonable possibility that [E] did hit the deceased hard, whilst he was attempting to subdue him and trying to avoid being struck by Mr Falconer's handcuffed hands. Such a finding raises the reasonable possibility that the deceased's facial bruising may have occurred otherwise than by Anthony Perish grabbing his head and slamming it down. [E] participated in the dismemberment of the deceased's body at Girvan and it is a reasonable possibility that he saw the Gypsy Joker tattoo after Mr Falconer's death. 56When the evidence of the struggle, the use of a chloroform like substance, Mr Falconer's snoring, the size of the box, the lack of ventilation and the length of the journey to Turramurra is considered in combination, there is a reasonable possibility, in my view, that Mr Falconer died before he arrived at Turramurra. 57In reaching this conclusion, I have not disregarded [B]'s evidence of a conversation that he had with Anthony Perish at North Sydney in June 2006. Anthony Perish told [B] that he and [E] killed Mr Falconer at "Redman's [E] mum's place up the coast". The reliability of this account is diminished as it was common ground in the trial that the property at Girvan was never owned by [E]'s mother and that she did not have an association with it. Furthermore, there was no evidence whatsoever of any proprietary interest that [E] or any member of his family had in that property. 58I do not propose to comment on the answers given by [E] in his ERISP, much of which was supported by the independent evidence upon which the Crown relied, other than to state that I am not satisfied that his account of events at Turramurra, was honest and reliable. 59The Crown has not established beyond reasonable doubt that the deceased was alive at Turramurra. Accordingly, Anthony Perish and Matthew Lawton are to be sentenced on the basis of the deceased being dead at the time of his arrival at Kirkpatrick Street. 60I am satisfied beyond reasonable doubt that the deceased's body in the box, was taken from Turramurra to Girvan in the utility driven by Matthew Lawton, who was accompanied by [E]. After disposing of the white van, Anthony Perish joined them at Girvan and they dissected the body. The body parts were placed into plastic bags that were wound with wire and duct tape and dropped into the Hastings River. I do not accept that [E] had been forced by the threat of the use of a gun to travel to Girvan and to assist in the dismemberment of the body. It is evident that [E] maintained a close relationship with Anthony Perish, which included an invitation to his wedding in 2008. They were arrested together at McMahons Point on 19 January 2009. 61On 26 November 2001, six of the bags were found in the Hastings River, a seventh bag being located on 13 September 2002. 62By its verdicts on the charge of conspiracy to murder, the jury determined that all three offenders entered into an agreement to kill Mr Falconer and each of them participated in that agreement. Anthony Perish was the mastermind behind the plan to abduct Mr Falconer, to kill him, to dismember his body and to dispose of his remains. He recruited [A] and [E] and instructed them on the role that each would play in the conspiracy. Andrew Perish and Matthew Lawton acted upon his directions. 63Andrew Perish was present at the Newtown dinner and knew that the plan was to kill Mr Falconer, dissect his body and [A] was to be used to dispose of the remains. He assisted his brother in recruiting [A], paid for the repairs to his boat and authorised him to proceed with further repair work to the vessel, which Andrew Perish paid for. Andrew Perish, with his brother Anthony, were the only persons that [A] was to contact on the McDowell phone. He endeavoured unsuccessfully to ring [A] on 14 and 15 November 2001. There is no evidence that Andrew Perish played any part in the procurement of [E] or that he knew that [E] was to abduct the deceased. His role was confined to [A]. The Crown has not established beyond reasonable doubt that Andrew Perish played any part in the agreement to kill Mr Falconer after 15 November 2001. His culpability for the conspiracy to murder is less than that of Anthony Perish. 64Matthew Lawton was not present at the Newtown dinner but delivered the McDowell phone to [A] with instructions as to its use and drove Anthony Perish to the meetings with [A] at the ... property. Whilst he was present at these meetings, the evidence does not establish that he took part in the discussions between [A] and Anthony Perish. I am satisfied beyond reasonable doubt that Matthew Lawton became aware that Anthony Perish had procured [E] to abduct Mr Falconer. He was neither engaged in the planning of the offence nor the recruiting of [A] and [E]. 65At trial, the Crown did not seek to prove a motive for Matthew Lawton's participation in the offending. Mr Hanley submitted that in assisting the commission of the offences, Matthew Lawton was inferentially recruited by Anthony Perish. It is plain from the evidence that the offender was under the influence of and subordinate to Anthony Perish, with whom he had a long association. His culpability for the conspiracy to murder is less than that of the other two offenders. 66An agreement to kill another person is a most serious crime. Each of the offenders took steps directed at its successful completion. 67At a later stage in these sentencing remarks, I will detail the backgrounds of each of the offenders. I accept that Anthony Perish and Andrew Perish agreed to kill Mr Falconer for the principal reason that they believed he was involved in the murder of their grandparents and they had become frustrated with the lack of progress in the police investigation. Each of these offenders had a close relationship with their grandparents and were motivated by their desire to right the wrong that Mr Falconer was perceived to have committed. Although that might explain the agreement to kill him and the murder, it does not mitigate the objective seriousness of these offences. A civilised society cannot condone the offenders' conduct. It is well established that resort to criminal conduct as a response to a crime believed to have been committed by the victim is to be severely discouraged. In our society, crime must be investigated by police and dealt with by the courts: Barlow v R [2008] NSWCCA 96; R v Mitchell [2007] NSWCCA 296. The existence of such a motive remains relevant, however, to questions of personal deterrence and protection of the community. 68By its verdicts on the charge of murder, the jury determined that Anthony Perish procured [E] to abduct Mr Falconer and bring him to Turramurra, that he did so with the intention to kill Mr Falconer some time thereafter and that his actions made a substantial contribution to Mr Falconer's death. The jury rejected as a reasonable possibility that it was the offender's intention to question Mr Falconer and not to kill him. 69The jury determined that Matthew Lawton was a member of the conspiracy to murder the deceased and was a party to the joint criminal enterprise to abduct him. The jury were satisfied that Matthew Lawton had an intention to kill Mr Falconer and his actions made a substantial contribution to the death. 70The Crown does not submit that this case falls within the worst category of murder and therefore attracts the imposition of a life sentence. There is no suggestion of future dangerousness. 71Ms Davenport and Mr Hanley submitted that the conspiracy to murder and the murder should be considered as one offence in the cases of Anthony Perish and Matthew Lawton. Ms Davenport contended that, had it not been for the fact that Andrew Perish was charged with conspiracy, the Crown would not have charged the other offenders with that offence. Mr Hanley argued that the "temporal, factual and historical connected-ness" between the two offences, reflected one course of criminal conduct. Both counsel suggested that if their submissions were accepted, the planning involved could be treated as a factor of aggravation in the murder. 72It seems to me to attempt to draw a line between the two offences for the purposes of sentencing Anthony Perish and Matthew Lawton, creates an artificiality and defies common sense. I accept that the actions of these offenders in reality reflect one course of criminal conduct. 73Anthony Perish meticulously planned the murder. He recruited [A] and [E]. He contrived that Mr Falconer was to be abducted on work release by [E] posing as a police officer, then handcuffed, sedated and placed in a box to be delivered to Turramurra. He supplied to [E] a police shirt, handcuffs and the chloroform like anaesthetic. When [E] arrived at Turramurra, Anthony Perish was present and he expected that Mr Falconer would be alive. He intended to kill Mr Falconer, but not all matters went as planned, as Mr Falconer had died on the journey. 74Anthony Perish had also planned for the deceased's body to be dissected at Girvan and disposed of by [A]. He carefully considered the various waterways and had concluded that the body parts were to be taken by [A] out to the continental shelf and emptied over the side of [A]'s boat. He instructed [A] to wash the boat with ammonia to make it difficult for DNA to be detected. When the scheme was interrupted by the desertion of [A], Anthony Perish decided that the body parts would be placed into the Hastings River. 75Although Matthew Lawton did not plan the abduction, he obtained steel wheel rims and painted them silver so that the rims on [E]'s VT Commodore would resemble the rims on a police vehicle. I am satisfied beyond reasonable doubt that he was present at Turramurra when [E] arrived as he intended to kill Mr Falconer and to participate in the dismemberment of his body. 76It is a factor of aggravation that the murder was carefully planned. 77Mr Hanley submitted that the dismemberment and disposal of the deceased's body were done with a view to avoiding detection and should not be given significant weight. The treatment of the deceased's body can be taken into account in assessing the seriousness of the offence: Knight v The Queen (2006) 164 A Crim R 126. Mr Crown, however, did not dispute Mr Hanley's contention that the treatment of the body did not elevate the seriousness of the offence, but said that it was relevant on sentence to demonstrate the state of mind of Anthony Perish and Matthew Lawton as one of callousness. I accept the Crown's submission. 78There is no evidence that suggests the deceased's body was dismembered for a purpose other than to hide the crime. The callousness with which the murder was planned and carried out is disclosed by the manner in which the offenders and [E] went about dissecting the body at Girvan. 79I conclude that the objective gravity of this offence is of a high order. Both offenders callously endeavoured to ensure that the careful plan to kill Mr Falconer would be successful. It matters little that he died unexpectedly in [E]'s white van. I accept that Matthew Lawton's role was subordinate to Anthony Perish and his culpability for the murder is less than his co-offender. Nevertheless, the objective seriousness of his offending remains high. 80Anthony Perish was born on 4 September 1969 and at the time of the murder was 32 years old. He is now 42 years old. He was arrested on 19 March 2009 and has been in custody since that time. His criminal history, prior to his arrest, reveals minor offences, the last of which was committed on 10 October 1990. 81On 15 December 2011, he was convicted of attempting on 9 June 2010 to wilfully dissuade [A] from giving truthful evidence against him in committal proceedings and sentenced to imprisonment for two months to date from 10 August 2010. I am mindful that offences committed after the murder, may not be taken into account for the purposes of imposing a heavier sentence, but may be considered for the purpose of deciding whether the offender is deserving of leniency: R v Hutchins (1958) 75 WN (NSW) 75; R v Bowey (unrep, 22/7/91, NSWCCA). 82The offender's record of previous convictions has not involved violence and does not disentitle him from considerations of leniency. I give to this consideration, modest weight in mitigation, owing to the gravity of the present offences. 83Anthony Perish did not give evidence at trial, or during the proceedings on sentence. His subjective circumstances are principally drawn from the history given to Michelle Player, a clinical psychologist. He is the fourth child of seven children born to his parents. One of his sisters was killed in a car accident in 1983. He has two sisters and three brothers. The offender was raised by his parents on an egg and poultry farm at Leppington. He had a close, supportive and nurturing relationship with his mother, but a strained relationship with his father, who held high expectations of the offender as his eldest son. The offender developed a stutter in infancy and never saw a speech pathologist to address his speech impediment. He did not enjoy his schooling years, had no interest in study and was a below average student. The offender left school in mid-Year 8 just shy of his 15th birthday. He completed a four-year apprenticeship in panel beating and spray painting, graduating when he was 20 years old. About this time, he moved to Queensland where he lived until aged 35 years. After buying and selling cars for profit, he progressed to operating his own excavator and bobcat business. 84The offender has a son, now 20 years old from a short relationship when the offender was in his early twenties. He was unaware that his ex-girlfriend had given birth to his son until about eight years later. The offender has been involved in his son's life since that time and remains in contact with him. Prior to his arrest in 2009, the offender was co-habiting with his partner, with whom he had commenced a relationship when he was about 26 years old. The relationship ended in 2010, but the offender maintains a sound relationship with his partner's son. 85Anthony Perish was close to his paternal grandparents, Anthony and Frances Perish, when he was growing up in Leppington. They lived about a 15 minute walk away from the offender's parent's home on the other side of the family property. The offender told Ms Player that his grandparents were nurturing and affectionate towards him and that he had a particularly close relationship with his grandfather. He had lived with his grandparents for a total of six months in his mid-adolescence. 86When his grandparents were murdered, the offender was 23 years old and living in Queensland. Ms Player reports that the offender was unable to join his family in Sydney to receive support and grieve with them. He told Ms Player that his grandparents' murders "shattered the family's innocence" and made him aware of "how bad the world can be." He said that he had felt frustration for many years about the lack of progress in the police investigation into his grandparents' murders and stated that he did not think that he had grieved properly, that it had burnt him out. 87Ms Player expressed the opinion that the offender "reveals a frozen grief response in relation to the death of his sister and murder of his grandparents, which he has attempted to suppress." The psychologist opines that Anthony Perish's offending behaviour "seems to have stemmed from his struggle to resolve the deaths of his grandparents, with whom he was particularly close, and pre-occupation with determining who was responsible for their deaths." Ms Player reports that the offender "appears regretful for the death of the victim and willing to participate in interventions to address his recidivism risk." 88Ms Player assessed Anthony Perish's risk of violence with the HCR-20 clinical risk assessment guide and found that the offender presents an overall low risk of violent recidivism. She recommended that the offender access individual psychological therapy whilst in gaol. The offender has completed various courses whilst in custody and the transcripts of his academic record were tendered. The Corrective Services case note reports disclose that he has been of good behaviour and is now the unit delegate. I take all these matters into account. 89It is clear that Ms Player's report of the expression of remorse by the offender does not amount to acceptance of responsibility for his actions. At the commencement of the trial, he pleaded guilty to manslaughter on the basis that he agreed with [E] that Mr Falconer should be abducted and that he contemplated the possibility, at least, that in the course of the abduction, serious injury might be caused to Mr Falconer and that was an unlawful and dangerous act. Ms Player reports that the offender denies that he intended to cause harm to Mr Falconer, which is consistent with his pleas of not guilty to conspiracy to murder and to murder. Accordingly, he must be sentenced on the basis that he demonstrates no contrition or remorse for his offending. His sentence is not to be increased for that, but no allowance in mitigation can be made for remorse or contrition. As he refuses to accept responsibility for the murder, his prospects of rehabilitation remain guarded. I am unable to make a positive finding on the balance of probabilities that he is unlikely to re-offend or has good prospects of rehabilitation. Nevertheless, in the circumstances of the present case, I conclude that the offender's motive to avenge his grandparents' murders lessens the need for personal deterrence and protection of the community: R v Swan [2006] NSWCCA 47. The offender's lack of a prior criminal history of violence and good behaviour in custody re-enforces this conclusion. 90I accept Ms Davenport's submission that concessions made on Anthony Perish's behalf shortened the length of the trial and facilitated the course of justice. I take that into account in moderation of the offender's sentence. 91Ms Davenport did not submit that special circumstances exist that justifies a variation in the statutory ratio between the non-parole period and the term of the sentence. 92Matthew Lawton did not give evidence at trial, or during the proceedings on sentence. His subjective circumstances are principally drawn from the history given to Tim Watson-Munro, a forensic psychologist. Matthew Lawton was born on 3 December 1966 and was 34 years old at the time of the offences. He is now 45 years old. He was born in Sydney and has a brother and sister, with whom he has no real contact. His parents are alive, but divorced when he was 21 years old. He had no contact with his father for about 20 years after the divorce. The offender describes a positive relationship with his mother, who is highly supportive of him. 93The offender left school, having attained the School Certificate. Thereafter, he was employed in various unskilled jobs and worked as a truck driver for 20 years prior to his arrest. Until about five years ago, the offender was an alcoholic. He told the psychologist that his father was a heavy drinker and described a difficult childhood and adolescence. The offender has been in several de facto relationships. He has two sons aged 18 and 14 years. He has been with his current partner for 8 years, who is supportive of him. 94Mr Watson-Munro expressed the opinion in his report dated 15 March 2012 that the offender has suffered a range of symptoms referable to an "Anxiety Disorder" according to DSM-IVTR criteria. Mr Watson-Munro opined that the offender's primary problems relate to his incarceration and his appreciation of the gravity of the verdicts. He has ongoing anxiety and diminished self-esteem. The offenders overall mood state had deteriorated arising from the fact that he is in protective custody. Mr Watson-Munro stated that the offender is having no treatment and is currently suffering from suicidal ideation to the point where a psychiatrist consulted him on one occasion but no medication was prescribed, which Mr Watson-Munro considered, was indicated. In addition, he suffers from Sleep Apnoea which Mr Watson-Munro reported, should be addressed as a matter of urgency. The psychologist believed that the offender would respond best to Cognitive Behaviour Therapy to teach him effective skills to deal with his anxiety, depression and diminished self-esteem. 95It was not submitted by Mr Hanley that the offender's health is a factor tending to mitigate punishment and enlivens the principles in R v Smith (1987) 44 SASR 587. There is no evidence to suggest that the concerns raised by Mr Watson-Munro as to the offender's health cannot be adequately managed by the prison medical staff and that imprisonment will be a greater burden for him by his reason of his mental or physical condition. 96In a letter dated 6 November 2011, Graham Lawton, the offender's father recounts his son's assistance to an elderly neighbour, which he states is but one example of the offender's compassion towards others. Wendy Lawton, the offender's mother, refers in her letter to her son's love and support and describes, in particular, his care and attention for his brother James, who suffers from a tumour. Leone Davidson, the offender's aunt, also brings to the court's attention, the offender's compassion, love and importance in the lives of his family and close relations. Sharon Miller, in a letter dated 9 March 2012 states that the offender is a placid, loving, devoted father and a respectful considerate partner. I take all these matters into account. 97Mathew Lawton does not have a significant criminal record, which is a mitigating factor that I take into account. He has no convictions since 1995 and the offences are relatively minor. I give to this consideration, modest weight in mitigation, owing to the gravity of the present offences. It does also lessen the need for personal deterrence and protection of the community. Matthew Lawton has neither expressed nor shown contrition for his offending and no allowance can be made for those factors in mitigation. As he has not accepted responsibility for his actions, his prospects of rehabilitation remain guarded. Notwithstanding his strong family support and lack of prior offending, I am unable to make a positive finding on the balance of probabilities that he is unlikely to re-offend or has good prospects of rehabilitation. 98Mr Hanley submitted that some reduction in sentence might be allowed as Matthew Lawton has been serving his sentence in protective custody. It appears that the offender has, on his own volition, been held in a protective area in 10 wing Special Management Area Placement (SMAP) since 6 February 2012, as a result of allegations that he is a police informer. The details of his incarceration as a SMAP inmate are set out in the letter dated 14 March 2012 from Corrective Services NSW. The offender's conditions of protective custody do not appear to be onerous. The main restriction, it seems, is that the offender is only permitted to mix with other inmates of the same protection status. I am not persuaded on the balance of probabilities that the offender will serve his sentence in conditions that are more difficult or onerous than other prisoners in the general prison population. Furthermore, I am unable to predict for how long that the offender will serve his sentence as a SMAP prisoner. I do not propose to reduce the offender's sentence in the light of the current custodial arrangements. 99Mr Hanley did not submit that special circumstances exist that justifies a variation in the statutory ratio between the non-parole period and the term of the sentence. 100Andrew Perish was born on 19 January 1971. He was 30 years old at the time of his offending and is now 41 years old. His criminal history as an adult prior to the commission of the present offence, discloses that other than driving offences, he had been convicted on 13 September 1994 of conspiracy to manufacture a commercial quantity of a prohibited drug and placed on a 5 year good behaviour bond. There are no matters on his record either before or after the commission of the present offence that involve actual violence. He was, however, convicted in the Campbelltown Local Court on 28 June 2007 for an offence of stalking, with intention to cause fear and was placed on a s 9 bond to be of good behaviour for 2 years. On 24 March 2009, he was sentenced in the District Court at Campbelltown for manufacturing a commercial quantity of drug and possession of an unauthorised pistol in 2007. There were matters on a Form 1 that were taken into account. He was sentenced to an aggregate sentence of 5 years expiring on 4 April 2012 with a non-parole period of three years four months. The earliest date that the offender was eligible for release to parole was 4 August 2010. 101On 15 December 2011, he was convicted of attempting on 9 June 2010 to wilfully dissuade [A] from giving truthful evidence against him in committal proceedings. He was sentenced to imprisonment for two months to date from 10 August 2010. The offences committed by the offender, after the date of the commission of the conspiracy are not to be taken into account for the purposes of imposing a heavier sentence, but may be considered for the purpose of deciding whether he is deserving of leniency. 102The offender's criminal history does not entitle him to leniency but it is not such that it is a matter of aggravation. 103Andrew Perish did not give evidence during the trial or upon sentence. In a report dated 9 March 2012, W John Taylor, a forensic psychologist details the offender's family history. He is the fifth eldest child in the Perish family and like his brother Anthony, was raised on the family poultry farm at Leppington. The offender was close to his mother and very close to his grandfather. He left school at the age of 17 years after completing the Higher School Certificate examinations. He then completed a plumbing trade course at TAFE and obtained a certificate for the safe handling of chemicals. The offender was employed as an apprentice plumber with the Department of Public Works for about four years. After working as a plumbing sub-contractor for a couple of years, he commenced his own business contracting to farmers, working with a bobcat, slashing grass and other services. At the same time, he ran a beef feed lot and delivered his meat to butchers' shops for some seven or eight years. He then had a rural supply shop in Camden supplying produce and other goods to farmers until he went to prison in April 2007. 104Mr Taylor recounts that the offender experienced a great deal of grief and trauma following his grandparents' murder. He had idolised his grandfather. His consumption of alcohol increased and he became intoxicated about twice a week and began inhaling speed and using ecstasy and cocaine. He said that he was "self-medicating". 105Whilst in prison, the offender has undertaken counselling and has completed the "Enough is Enough" program. Mr Taylor reports that the results of the psychometric tests that he administered, do not indicate that the offender has a personality disorder and that most of his attitudes appear to be pro-social. Mr Taylor is of the opinion that the offender has a low moderate risk of recidivism and has good prospects for rehabilitation. I take all these matters into account. 106Consistent with his plea of not guilty, the offender has neither expressed nor shown contrition for the offence and no allowance can be made for those factors in mitigation. He, also, has not accepted responsibility for his actions, and his prospects of rehabilitation remain guarded. Notwithstanding the views expressed by Mr Taylor, I am unable to make a positive finding on the balance of probabilities that he is unlikely to re-offend or has good prospects of rehabilitation. Nevertheless, as in the case of Anthony Perish, I conclude that the offender's motive to avenge his grandparents' murders, lessens the need for personal deterrence and protection of the community. 107Mr Terracini did not submit that special circumstances exist that justifies a variation in the statutory ratio between the non-parole period and the term of the sentence. 108James Falconer the deceased's son read a victim impact statement to the court. The contents of the statement cannot be used by me to increase the offenders' sentences: R v Previtera (1997) 97 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them. 109The parity principle is of importance when sentencing each of the offenders. I have compared their separate culpability and subjective circumstances. 110In structuring the sentences to be imposed on Anthony Perish and Matthew Lawton, I have fixed an appropriate sentence for each offence and then considered questions of cumulation or concurrence as well as totality. As these offenders actions in reality reflect one course of criminal conduct, I conclude that the sentence to be imposed for murder can comprehend and reflect the criminality of the conspiracy to murder. I do not accept the Crown's submission that there should be some partial accumulation of the sentences. 111I am required to sentence the offenders in accordance with sentencing practice in 2001 and not as presently prevailing. Although the statutory maximum for the offences has not altered, it is evident from the tendered Judicial Commission sentencing statistics, that sentences have increased since the advent of standard non-parole periods in 2003. Standard non-parole periods have no application to the present sentences. I take into account the sentencing statistics, but each case depends on its own facts and circumstances. I believe the sentences I am about to impose are consistent with the sentencing range current at the time of the offending. 112The agreed date for the commencement of Anthony Perish's sentence is 19 March 2009. As the offences were committed before 1 February 2003, the repealed section s 44 of the Crimes (Sentencing Procedure) Act applies. I do not consider that "special circumstances" exist which justify the non-parole period being less than three-quarters of the term of imprisonment. 113Anthony John Perish for the murder of Terrence Falconer, you are convicted. I sentence you to a term of imprisonment of 24 years which is to commence on 19 March 2009 and is to expire on 18 March 2033. I fix a non-parole period of 18 years which is to commence on 19 March 2009 and is to expire on 18 March 2027. 114Anthony John Perish for the conspiracy to murder Terrence Falconer, you are convicted. I sentence you to a term of imprisonment of 14 years which is to commence on 19 March 2009 and is to expire on 18 March 2023 I fix a non-parole period of 10 years 6 months which is to commence on 19 March 2009 and is to expire on 18 September 2019. 115The earliest date that you will be eligible to be released on parole is 18 March 2027. 116The agreed date for the commencement of Matthew Lawton's sentence is 27 January 2009. I do not consider that "special circumstances" exist which justify the non-parole period being less than three-quarters of the term of imprisonment. 117Matthew Lawton for the murder of Terrence Falconer, you are convicted. I sentence you to a term of imprisonment of 20 years, which is to commence on 27 January 2009 and is to expire on 26 January 2029. I fix a non-parole period of 15 years which is to commence on 27 January 2009 and is to expire on 26 January 2024. 118Matthew Lawton for the conspiracy to murder Terrence Falconer, you are convicted. I sentence you to a term of imprisonment of 10 years which is to commence on 27 January 2009 and is to expire on 26 January 2019. I fix a non-parole period of 7 years 6 months which is to commence on 27 January 2009 and is to expire on 26 July 2016. 119The earliest date that you will be eligible to be released on parole is 26 January 2024. 120The agreed date for the commencement of Andrew Perish's sentence is 4 October 2010. I note that he had been serving sentences imposed in the District Court, the full term of which expired on 4 April 2012. No submission was made either by the Crown or Mr Terracini as to whether the present sentence should be imposed partially concurrently or consecutively upon the District Court sentences. It seems from the agreed date that both parties consider accumulation upon the first date Andrew Perish was eligible for release on parole after the service of the sentence imposed by Hock DCJ, to be appropriate. I do not disagree. In considering the principle of the totality of the criminality, such accumulation, in my view, adequately reflects the criminality of the offence of conspiracy to murder and the aggregate sentence is just and appropriate: Mill v The Queen (1988) 166 CLR 59, Johnson v The Queen (2004) 78 ALJ 616. I do not consider that "special circumstances" exist which justify the non-parole period being less than three-quarters of the term of imprisonment. 121Andrew Michael Perish for the conspiracy to murder Terrance Falconer, you are convicted. I sentence you to a term of imprisonment of 12 years which is to commence on 4 October 2010 and is to expire on 3 October 2022 I fix a non-parole period of 9 years which is to commence on 4 October 2010 and is to expire on 3 October 2019. 122The earliest date that you will be eligible to be released on parole is 3 October 2019.

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