Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ramsland Laidler Solicitors (Offender)
File Number(s): 2014/46264
[2]
Judgment
Introduction
The trial of Andrew Perkins (the offender) and Rachel Manevski (the co-offender) was listed to commence by way of discussion of legal and logistical matters on Monday 11 July 2016, with the jury to be empanelled for a joint trial the following day, Tuesday 12 July 2016. On the earlier date, counsel for the offender sought time for an extended conference with his client. I granted that application, and subsequently the offender entered a plea of guilty to an indictment that contained a single count averring that, on 13 February 2014 at Niagara Park, he murdered Kieran Priestland (the deceased).
The proceedings on sentence with regard to the offender were stood over to 3 August 2016. In the meantime, the trial of the co-offender commenced on Wednesday 13 July 2016, and recently concluded. That means that, in sentencing the offender, it is important for me to put from my mind all of the evidence that was placed before the jury and me in the trial of the co-offender, as a matter of procedural fairness to both parties. The Crown Prosecutor and counsel for the offender explicitly endorsed that approach, and, with their assistance, I have adopted it.
The maximum penalty for the offence of murder is imprisonment for life without possibility of parole. The Crown Prosecutor made no submission in support of the imposition of that ultimate sentence. There is also an applicable standard non-parole period, in the circumstances of this case, of 20 years. I regard both the maximum penalty and the standard non-parole period as important guideposts in my exercise of the sentencing discretion.
The plea of guilty entered by the offender is a solemn and public admission that he voluntarily did an act that caused the death of the deceased with, at the least, an intention to cause grievous bodily harm to him. The law is clear that any matters of aggravation above and beyond the elements of the offence to which the offender has pleaded guilty must be proven to my satisfaction beyond reasonable doubt; any matters reducing the culpability of the offender need only be proven on the balance of probabilities. Some matters, of course, may be unable to be determined by me.
Objective features
I turn to a discussion of the objective features of the offending itself. The vast majority of them were not in dispute, as demonstrated by the fact that a detailed document headed "Statement of Facts" became Crown Exhibit B without objection in the proceedings on sentence.
On 12 February 2014, the offender was approaching 19 years of age. He was living at the family home in Niagara Park, a suburb of Gosford. Also living there were his mother, Ms Kirsten Perkins, and his 6-year-old brother, XXX. The offender was in a relationship with the co-offender, she being a young woman of about his age. The offender had also been friends since primary school with Ashleigh Cornish. Ms Cornish had been in a relationship for some time with the deceased. He was aged 18 years and 3 months, and, like the other three young persons, lived on the Central Coast of New South Wales.
The offender invited Ms Cornish around to the family home that evening for a small social gathering with himself and his girlfriend. Ms Cornish arrived at the home at about 6.30 PM, having been dropped there by the deceased. During that trip, Ms Cornish used the mobile phone of the deceased to access social media, and she neglected to log out from the phone of the deceased. The result was that communications that she believed were private became known to the deceased. They included communications that strongly suggested to him that Ms Cornish had been seeing another young man.
The social event proceeded unremarkably for a time, and featured the offender, the co-offender and Ms Cornish consuming some snacks, a large amount of alcohol in the form of vodka and red wine, and some cannabis (including, I accept on the balance of probabilities, what the offender has described as synthetic cannabis).
Things were interrupted at about 10 PM, when the deceased turned up with a number of young male friends. He was upset by what he had found out about the seeming behaviour of Ms Cornish. A rather ugly event ensued on the street, which included harsh words passing between the deceased and Ms Cornish; Ms Cornish kicking the car of the deceased (a recent acquisition that was very dear to him); and the deceased apparently threatening to damage the car of Ms Perkins in response. Eventually, the deceased and his young friends departed without further incident, other than a "burnout" performed by him as an act of juvenile frustration.
Ms Cornish was distressed by all of that. She was comforted and taken back inside by the offender and the co-offender. The social event recommenced, with more alcohol and cannabis consumed by the three young people.
At 10.34 PM, the offender sent the following Facebook message to the mobile phone of the deceased: "Threaten to hit my property again and you will be dead cunt. Any beef you has [sic] with ash is with her, not me".
At a later stage, it was agreed that Ms Cornish would spend the night at the offender's home. Later again, she changed her mind, and decided that she would rather go home (that is, to the family home of the deceased, where she was then staying). She telephoned the deceased in the early hours of the next morning, and asked him to come and pick her up. One may have expected that, upon his arrival a few moments later, the events of that evening would draw to a close, with Ms Cornish departing with the deceased, and the offender and the co-offender retiring to bed.
Instead, something deeply disturbing and tragic happened. It is agreed between the parties that each of the offender and the co-offender said the words "I'm gonna fucking kill him", referring to the deceased. It is also agreed that, after that, each of them went to the kitchen of the home, and Ms Cornish heard the sound of rummaging through the kitchen drawers. Thereafter, the offender armed himself with a large kitchen knife; left the home; and walked down to the roadway where the deceased was waiting for Ms Cornish. He was in the driver's seat, the engine of his car was running, and he was still wearing his seatbelt.
The offender mercilessly used the knife to stab the deceased to death as he sat in his vehicle. At least three very deep wounds were inflicted to the upper torso of the deceased, one of which was delivered with such great force that the knife came close to protruding from his back. Other, more shallow wounds were inflicted to his body. Separately, there were a number of cuts to his hands that were undoubtedly defensive in nature.
The deceased died where he sat in his beloved car. He was, of course, unarmed, confined and restrained, and in no position to defend himself, let alone inflict injury upon the offender.
After that, the offender retreated to his home, and continued from there to the backyard. In the meantime, Ms Cornish found the body of the deceased and, despite her hysteria, alerted emergency services. Paramedics promptly attended, but all efforts to save the life of the deceased were simply too late.
Police arrested the offender attempting to conceal himself in the backyard. After that, he engaged in a recorded interview with police in the early hours of that morning, in which he chose to tell a number of exculpatory lies. He was charged with the offence of murder, refused bail, and has been in custody ever since.
All of that, as I have said, is accepted. There were only two disputes between the parties about objective features of the offending, and they are helpfully identified in Exhibit B.
The first was whether or not the co-offender was also present at the car when the offender committed the murder. During the proceedings on sentence, each counsel agreed with my initial thought that that question is irrelevant to these proceedings on sentence, and does not require resolution by me. On reflection, I accept that joint submission.
The second area of dispute certainly requires resolution. It is whether the offender intended to inflict grievous bodily harm or death; to express that dispute more correctly, it is whether the Crown can prove beyond reasonable doubt that the offender intended to kill the deceased. A related dispute was directed to the time at which any intention sufficient for murder was formed by the offender.
Counsel for the offender submitted that I could not be satisfied of the greater intention beyond reasonable doubt. He submitted that a reference to killing another person is commonly made colloquially, without the slightest intention of the speaker actually doing so. He pointed to the claim of the offender, made to a psychologist and also in the witness box, that when he first armed himself with the knife in the kitchen, he merely intended to use it to scare off the deceased, in case there were some further incident. He submitted that the number and nature of the wounds is as consistent with a loss of self-control as it is with an intention to kill. Defence counsel also submitted that the prior good character of the offender (a topic to which I shall return in more detail later) is hardly consistent with an intention to inflict death formed by a young man upon a defenceless victim. Finally, he submitted that the profound intoxication of the offender by way of alcohol and a potent synthetic drug would lead me to have a reasonable doubt about whether the greater intention had been established.
I do not accept those submissions. That is so for the following reasons.
It is not disputed in these proceedings that the offender and the co-offender expressed an intention to kill separately and together, as it were. Nor is it disputed that each of them went to the kitchen, and Ms Cornish heard a search through drawers for an appropriate weapon. Nor is it disputed that the offender armed himself with a kitchen knife large enough to inflict the wounds I have described, and shortly afterwards approached the car of the deceased. It is beyond dispute that the offender inflicted nine wounds to the body of the deceased, three of which were deep, and one of which pierced a rib, pierced his heart, and almost traversed the depth of his trunk.
It is certainly the case that I am not satisfied that there was any premeditated or settled intention to kill on the part of the offender that had existed for days or even hours before he approached the car of the deceased. But I am satisfied beyond reasonable doubt in all of the circumstances that, at the time he went to the kitchen and obtained the knife, the offender had decided to kill the deceased, and, moments later, that is exactly what he did.
To the extent that the offender has said otherwise, both to a psychologist and in the witness box, I reject those assertions. I take that approach not only because of the damage to his credibility done by the lies he told to the police about this murder, but also because I believe that, in truth, the offender has little or no memory of what he did, or understanding of why he did it.
In short, the offender will be sentenced by me on the basis that, at the time of the repeated stabbing, and in the moments leading up to it, he intended to kill the deceased.
Objective seriousness of the offence
I turn briefly to assess the objective gravity of this murder.
Of course, all murders are crimes of the utmost seriousness, featuring as they do the criminal taking of the life of a fellow human being in the worst circumstances known to law. But it is possible to create something of a ranking of seriousness, and its creation is necessary to give content to the maximum penalty and the standard non-parole period to which I have referred.
Here, there was an intention to kill that was formed some little time before the murder was effected. A deadly weapon was obtained in order to fulfil that purpose. The attack was unremitting and extended, as evidenced by the defensive wounds. Although death came quickly, the final ordeal of the deceased was excruciating and terrifying. The life of the deceased came to an end whilst he was sitting in his own vehicle, restrained by a seatbelt, and presenting no threat whatsoever to the offender. In truth, the deceased was little more than a child, having turned 18 only 3 months before.
By any measure, this murder cannot be assessed as anything other than extremely grave.
Subjective features
I turn now from a discussion of the offence to a discussion of the offender.
Value of plea of guilty
Turning first to the utilitarian value of the plea of guilty, it is true that the offender pleaded guilty to murder on the day before he was to be arraigned before a jury panel. It is also true that a trial commenced in any event with regard to his co-offender.
On the other hand, it is certainly the case that his plea to murder, albeit entered very late, made the trial of the co-offender more simple, both factually and legally. It is also the case that the offender had formally offered to plead guilty to manslaughter many weeks before he entered the plea to murder. It is true that the proffered plea to manslaughter may not have shortened very much the evidence tendered to prove that he was guilty of the more serious form of homicide in a putative trial. Nevertheless, it did mean that, from that point on, the Crown knew that, at any trial of the offender, it need not be overly troubled about the physical elements of homicide, but rather need only focus upon exculpatory partial defences, or proof of a necessary mental element for murder.
Despite its lateness, I think that the plea of guilty to murder, especially when seen in the context of the longstanding offer to plead guilty to manslaughter, had a utilitarian value that was not insignificant. Seeking to weigh up all of the relevant factors, I have come to the view that, despite the fact that the plea to murder came very late, there should be a discount of 10% for its utilitarian value.
Remorse
As for the separate but related question of remorse, it is undeniable that the offender has publicly and solemnly accepted his guilt of the murder of the deceased. The enormity of that step is not to be discounted, including, of course, with regard to its inevitable consequences. On the other hand, in the witness box, the offender was hardly fulsome in his expressions of remorse; I think that that may be explained partly by the stress of giving evidence in one's own proceedings on sentence for murder, and partly by his perplexity as to what he had done. I noted that the offender accepted in the witness box that he had "ruined everything", a correct assessment from countless perspectives.
Separately, his mother gave evidence of an occasion when she visited her son at Goulburn Gaol, and when it seemed that he was overwhelmed by the terrible nature of what he had done, and the tragic consequences for many families. During her evidence, including her own apology proffered to the family of the deceased, I noted the offender to be sitting in the dock sobbing.
It is true that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) calls for consideration of whether the offender has provided evidence that he has accepted responsibility for his actions, and whether he has acknowledged any injury, loss or damage caused by his actions or made reparation for such consequences. On the balance of probabilities, I think that those preconditions have been sufficiently fulfilled.
In short, the offender has accepted responsibility for what he has done. And despite the combined effect of his inability to understand why he did it, and his youthful attempts to grapple with its magnitude, I proceed on the basis that he is remorseful for it.
Background and motive
As I have said, the offender was aged 18 years at the time of the offence and is now aged 21 years. Unquestionably, his youth is an important mitigating feature, and my sentence reflects that consideration.
A psychological report of Dr Gilligan of 1 August 2016 was tendered in evidence and became Defence Exhibit 1. Despite my concerns about the credibility of the offender, neither he nor his mother was cross-examined by the Crown Prosecutor with regard to the contents of that report. In the circumstances, I accept matters of background contained within it on the balance of probabilities.
At the time of the offence, the offender had never come into contact with the criminal justice system, whether for an offence of violence or otherwise. His life up until that time had been unremarkable, and one shared by countless other young men growing up in the Australian suburbs.
It is true that his mother had been in an unsatisfactory relationship when he was a very young child, but that came to an end when the offender was a young boy. That relationship had its distressing aspects, but there is nothing to suggest that it did psychological damage to the offender. Nor was the life of the offender as a child marred by the abuse of alcohol or prohibited drugs by those around him, nor by the infliction of violence upon him by adults.
At school he did well, and had a particular facility with English. His intention had been to attend university, and ultimately to work as a journalist. He suffered from a bout of cancer in his childhood, which relapsed when he was aged 16 years, resulting in him being treated for depression, but that had seemingly resolved by 2014.
Prior to his romantic relationship with the co-offender, the offender had been in a relationship with another young woman that showed no signs of problems.
On the evening in question, he drank a great deal of alcohol and used a prohibited drug that was seemingly very potent. But there is nothing to suggest that he had some sort of longstanding dependence upon, let alone addiction to, alcohol or prohibited drugs.
Finally, there is nothing to suggest that he suffers from any frank mental illness; I put his oddly reserved demeanour in the witness box in the proceedings on sentence down to nervousness, stress, and perplexity.
As for motive, those generally positive features about the life and character of the offender - apart of course from what he has done - leave me with my own perplexity as to the motivation for this offence.
It is true that there had been an unsettling disruption earlier in the evening. It is also true that an old friend of the offender, Ms Cornish, was upset by what had occurred.
Separately, it is also true that the offender, I accept, was disinhibited by the combined effect of alcohol and a prohibited drug, and very intoxicated. Having said that, I hasten to add that I am not satisfied that his consciousness was reduced or compromised at the time of the offence. I do not accept any suggestion made by him in the witness box or to the psychologist in that regard, not least because those claims are inconsistent with his plea of guilty to murder. And in any event, Parliament has commanded that self-induced intoxication can provide nothing more than an explanation; it cannot mitigate any crime: see s 21A(5AA) of the Crimes (Sentencing Procedure) Act.
Finally, contrary to the seeming assertion of the offender, I am not satisfied on the balance of probabilities that the deceased offered the slightest provocation to the offender upon his return; and in any event, it will be recalled that the intention to kill was expressed, and the murder weapon obtained, well before the offender attended upon the motor vehicle of the deceased.
At most, on the return of the deceased, one may perhaps have expected a slanging match between the two young men, or even some sort of physical exchange between them. In short, the motivation for the savagery that actually occurred remains very much a mystery to me.
Prospects of rehabilitation
In custody, the offender has of course been on remand for almost exactly two and a half years. A substantial part of that time has been spent at a gaol that I readily infer would present difficulties to a young man who has never been exposed to the criminal justice system before. Generally, it seems that he has adapted to his incarceration reasonably well, including by taking advantage of the few educational opportunities that are available to him whilst on remand, though an offence against prison discipline of possessing a syringe provides a discordant note. Time will tell whether his period in custody can be used by him to explore the psychological factors that led him to commit this crime, and to understand how to avoid anything remotely like it happening again in the future.
A louder jarring note is the seeming position of the offender that he maintains his love for the co-offender, and believes that their relationship will continue in the years ahead. In light of the fact that he has explicitly accepted in these proceedings that both he and she expressed an intention to kill at the crucial time, as well as the fact that it is a matter of public record that the co-offender has herself been convicted of a serious offence against public justice arising from the murder that he committed, I regard any continuation of that relationship as seriously detrimental to his rehabilitation.
As for the prospects of rehabilitation of the offender more generally, there is force in the submission of the Crown Prosecutor that it is very difficult to predict how things may unfold in the years ahead. Having said that, the offender is a young man who for 18 years showed no sign of criminality or dangerousness. He enjoys the support of his mother, who impressed me as a sincere person who is engaged in her own emotional struggle with what occurred that evening. Inevitably, the violence of this murder, and one's inability to understand it on any rational basis, gives one pause for thought about whether this offender can rehabilitate himself in the many years ahead, prior to his return to the community. Having said that, I possess a guarded optimism that he can do so.
Various aspects
I turn to discuss various aspects of my task.
First, these remarks on sentence set out all of the aggravating and mitigating features of the matter that I have found to exist. For that reason, I do not propose to engage formalistically with s 21A of the Crimes (Sentencing Procedure) Act.
Secondly, both counsel were agreed that the offender has been in continuous custody since his date of arrest; namely, 13 February 2014. My sentence will commence on that date.
Thirdly, defence counsel provided me with a sentencing decision in a broadly similar matter. That was not inappropriate; but because sentencing is an exercise in intuitive synthesis of a number of factors, and each such exercise must turn on its own facts, I shall not pause to examine that other case in any detail.
Fourthly, defence counsel submitted that it would be open to me to find special circumstances that could lead to a shortening of the non-parole period. He invited my attention to the youth of the offender, his lack of other offending, and his undoubted need for extended help on his release.
So much may be readily accepted; but the inevitable length of the parole period that I shall impose shortly is, to my mind, sufficient for those purposes. Having said that, although I do not believe that special circumstances have been demonstrated, I have in my calculations rounded down a matter of months here or there, because the law does not concern itself with trifles.
Fifthly, I am required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to inform the offender that it is possible that he will remain in prison even despite the complete expiry of his head sentence, if it is judged at that stage that he constitutes an unacceptable danger to the community.
Victim impact statements
Finally, although it goes without saying that every human life is valued and protected by the criminal justice system, I wish to say something in particular about the material that was placed before me in the proceedings on sentence by way of victim impact statements. Some of them were read by their authors; one of them was read on behalf of its author; and one of them was simply tendered before me. In the absence of any oral or written application pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act, I have approached them in accordance with well-established principle: R v Previtera (1997) 94 A Crim R 76.
Although of necessity these remarks on sentence focus on the offence of murder and the murderer who committed it, all members of the community can rest assured that the deceased has been in the forefront of my mind.
In summary, the victim impact statements show the searing pain that has been caused to many people by the criminal act of the offender that evening. It is no exaggeration to say that the happiness of the family of the deceased has been completely destroyed. Kieran Priestland was a carefree young man, cheeky, fond of sports, devoted to family and of course his prized black car, well-liked by many, deeply loved by those close to him, and cut down in the prime of life. The suffering of many is deepened by the utter senselessness of what occurred, and the futile waste of a young life.
On behalf of the Supreme Court of New South Wales, I extend my condolences, not only to those that placed material before me, but indeed to all of those who have been grievously wounded as a result of this murder. It is possible that the resolution of these proceedings today will provide some relief; I accept that for some there will be decades of suffering.
Imposition of sentence
Andrew Perkins, you are convicted of the offence of murder.
I impose a non-parole period of 15 years, to date from 13 February 2014. That will be followed by a parole period of 5 years and 6 months, which will expire on 12 August 2034.
The first date upon which the offender will become eligible for possible release to parole will be 12 February 2029.
To express my sentence another way, I have imposed a head sentence of imprisonment for 20 years and 6 months with a non-parole period of 15 years. Were it not for the plea of guilty, I would have imposed a head sentence of imprisonment for 23 years.
[3]
Amendments
24 October 2016 - Deleted name of child at [6]
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Decision last updated: 24 October 2016