MATHEWS AJ: On 22 June 2016 Matthew James Perry pleaded guilty on indictment to the charge that, on 18 June 2014, at Colyton in NSW he murdered Jed Coates. Thereafter the matter was adjourned on several occasions in order for evidence to be presented and submissions made relating to sentence. He now comes to be sentenced in relation to that offence.
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Circumstances of Offence
At the time of the killing the offender was 21 years old, and the deceased was 18, having been born on 7 June 1996. They knew each other, as they had attended the same school, and the offender was a friend of the deceased's older brother, Dan. There was some resentment between the two of them, as the offender believed that the deceased was part of a group that had attempted to steal his motor bike. The deceased had denied that this was the case.
On the evening of 18 June 2014 the deceased was at the Colyton Hotel with a friend, Jack Kliese. The offender was also at the hotel with some friends. During the evening the deceased approached the offender. According to Jack Kliese, it was intended to be a conciliatory approach, but the offender did not take it that way. Shortly after the deceased approached him, the hotel CCTV footage shows the offender grabbing the deceased by the throat. Punches were thrown between them, with Jack Kliese joining in. The fight was rapidly broken up by the hotel security staff, and the deceased and Jack Kliese were ejected from the hotel. A security guard saw the two of them in the hotel car park, where they remained for about 20 to 25 minutes after being ejected from the hotel. During this time Jack Kliese realised that he had left a cigarette packet inside the hotel, containing about $250 in cash. At his request, a security guard went inside to find it. He brought the packet out, but it was empty. Jack Kliese was very upset about this. He believed that the offender had stolen his money. The security officer described them both as being drunk. The deceased called out to the offender: "we are going to get you," and Jack Kliese shouted: "we know where you live. I will get a knife and stab you and your family."
The offender told his friends in the hotel that he was worried about his mother - no doubt because of the threats made by Mr Kliese. So he took a taxi and returned to the home where he lived with his mother in Nevada Avenue, Colyton. He told her that he had had a conflict with two men at the pub, and that they wanted to meet him down in the park, to fight him "one on one".
A number of abusive messages were then exchanged between the offender and the deceased on Facebook. These culminated in an arrangement that they would meet for a "one on one" fight, presumably meaning a fist fight. In the meantime, the deceased telephoned his brother Dan and told him that the offender had stolen Jack Kliese's money. Dan contacted the offender who denied doing so. Dan told the deceased to go home. The deceased did so, returning to the home where he lived with his mother. His mother tried to talk him out of meeting up with the offender, but he insisted that he was going to do so. Dan also tried unsuccessfully to talk him out of it. There were also several messages between the offender and Dan. The deceased and Jack Kliese then left the deceased's home, the deceased having armed himself with a shovel and given Mr Kliese a "club lock". They apparently armed themselves in this way as they were afraid that the offender might bring his friends with him to the fight.
Meanwhile the offender was at home preparing himself for the encounter. His mother told police that he was initially carrying a knife with knuckle dusters attached which he was proposing to take with him. She would not let him take it, and she believed that he was unarmed when he left the house. However, as it later transpired, he was armed with a .22 calibre firearm, about 35 to 40 cms long.
Following further messages between the offender and the deceased, the three of them met up in the street in Colyton, not far from the offender's home. Neighbours heard shouting from the street. The offender was seen to be pointing the gun in the direction of the deceased and Jack Kliese, apparently moving it backwards and forwards between the two of them. They took a couple of steps backwards, and shortly afterwards the offender fired the gun in the direction of the deceased. The bullet entered the right side of the front of his neck, transected the right subclavian artery and passed through the right lung, prior to lodging in the subcutaneous tissues on the right side of the upper back, causing extensive blood loss. The deceased died almost immediately.
A post mortem examination performed by Dr Johan Duflou identified the gunshot wound as the sole cause of death. The deceased had a high level of alcohol in his blood, namely .172 grams per 100 ml. In addition there was evidence of recent cannabis consumption.
The offender left the scene immediately after the shooting and returned home, while Jack Kliese called for assistance. Mr Kliese told the police that the offender was the shooter. Later he claimed not to know who the shooter was, but after being told that the deceased was dead he gave the police a full account, again nominating the offender as the shooter. The offender was then arrested and interviewed. He admitted the earlier altercations at the hotel and in the street, but denied that it was he who had shot the deceased. However in subsequent correspondence between his legal representatives and the Director of Public Prosecutions it became clear that he was no longer denying that he was the perpetrator. He was charged with murder, and was due to stand trial on 22 June 2016. On that day he entered a plea of guilty to murder. Accordingly, the trial did not proceed. I will be referring to this later as it is highly relevant on sentence.
The offender gave evidence on sentence, in which he expressed extreme remorse for his actions. He said that he had purchased the gun some time before this night. He was buying fireworks from a man one day, and - as he put it - he stupidly bought the gun as well. He had kept it under the house where he lived with his mother. He told the psychologist, Alison Cullen, that he took it with him on the night in question with the intention of scaring the deceased and Mr Kliese. He did not intend to kill the deceased.
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Objective Seriousness of this Offence
It is appropriate at this stage to say something about the objective criminality involved in this offence, and where it stands in relation to the midpoint of objective seriousness for the offence of murder. Mr Peluso, who appeared for the offender, submitted that in all the circumstances, this offence was below the midpoint of objective seriousness. The Crown prosecutor submitted that the fact that a firearm was involved was an aggravating factor which brought it up to the midpoint.
In my opinion the circumstances of this offence place it significantly below the midpoint of objective seriousness for murder. Certainly a firearm was used, but without it there would have been no murder, so in one sense it was an inherent part of this particular offence. The offender had it with him because he was concerned for his welfare, given the abusive messages that had been sent by the deceased. Indeed, not long before the fatal encounter the offender had sent a message to Dan, suggesting that it would be the best thing if the deceased just went home, "like a good boy". It is accepted by the Crown that the shooting was a spontaneous act which was not premeditated. His intention, as he later said, was not to kill anyone but to frighten the two men away. In this regard it is also accepted by the Crown that the offender acted with reckless indifference to human life rather than with an intention to kill or really seriously injure the deceased. The combination of these factors, in my opinion, significantly reduces the objective culpability involved in this offence.
I now turn to say something about the offender's background.
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The Offender's Background
The offender is 24 years old, having been born on 19 August 1992. He is the younger of two children born to his parents. His parents separated shortly before his birth, and he and his older sister were brought up by their mother. His father remarried, and he has always enjoyed a good relationship with all family members, including his step-mother and step-brother. He attended Colyton High School, leaving at the end of Year 10. Thereafter he completed a 4 year panel beating apprenticeship. He was working with the same employer throughout his apprenticeship and until his incarceration for the present offence. For the last 2 years he was in a stable relationship. His partner had a three-month old son when they commenced their relationship, and a strong bond was forged between them, with the offender taking over the role of the boy's father.
The offender has no previous convictions. Both his father and his step-mother gave evidence on sentence, and spoke very highly of him. He has had a stable lifestyle and has never had any problems with drugs or alcohol. Nor had he previously shown any signs of violence or aggression. Glowing references were also provided by other family members, as well as by neighbours and friends.
The offender was assessed in August this year by the forensic psychologist, Alison Cullen, and her report dated 22 August 2016 was tendered into evidence. This shows that the offender had been feeling depressed for some time before this offence. Indeed he had initiated psychotherapy with a private psychologist when he was only 19 years old. It is possible that this was associated with the offender's spinal condition, which was starting to cause intermittent pain at about that time. Ms Cullen noted that he was pleasant and co-operative during their interview, although he described himself as being "pretty sad", and having difficulty sleeping. He had high levels of depression, anxiety and stress. At least part of this was attributable to the offender's incarceration and his then impending sentencing proceedings. Ms Cullen concluded that, prior to his incarceration, the offender demonstrated being a responsible, hard-working and caring young man.
For a number of years the offender has had problems relating to his back and hips. These have prevented him from performing the physical exercise he had previously enjoyed. They have also on occasions led to severe pain. He was recently diagnosed as suffering from Scheurmann's Disease. This is a very serious condition which results in the sufferer's spinal column collapsing forward on itself and causing curvature of the spine at the affected levels. This leads to visible deformity, and also produces periodic pain, sometimes of a very severe nature. There is no cure for this condition, and it may well deteriorate over time. Moreover in the offender's case, the disease involves both the thoracic and the lumbar regions of the spine - one of them curving to the left and the other curving to the right. According to the medical evidence, this is an unusual combination and significantly aggravates his clinical condition. As a result of his condition, the offender is restricted in his physical activities, and he should not be required to lie on hard surfaces or on thin mattresses.
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Aggravating and Mitigating Factors
I turn to discuss the aggravating and mitigating factors which are relevant to this case as set out in s.21A(2) and (3) of the Crimes (Sentencing Procedure) Act, 1999 ("the Act").
The only aggravating factor which is not inherent in the offence of murder is that the offence involved the use of a weapon pursuant to s.21A(2)(b). I have already referred to this factor. For reasons already given, I do not regard it of great significance in the particular circumstances of this case. As to mitigating factors, the only one relating to the offence itself, as opposed to the offender, is that pursuant to s.21A(3)(b) the offence was not part of a planned or organised criminal activity. As already indicated, the Crown accepts that the killing was a spontaneous action which was not premeditated.
There are, however, a number of mitigating factors relating to the offender personally. They are: first that the offender has no record of previous convictions and is therefore taken to be a person of good character pursuant to paragraphs (3)(e) and (f). Associated with this, he has good prospects of rehabilitation and is unlikely to re-offend, pursuant to paragraphs. (3)(g) and (h). The offender has displayed real remorse for this offence pursuant to paragraph. (3)(i), and has accepted responsibility for his actions. Finally, he has entered a plea of guilty, pursuant to paragraph (3)(k). This last matter is of considerable significance, and I shall return to discuss it very shortly.
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The Appropriate Sentence
The purposes of sentencing are set out in s. 3A of the Act. Very briefly they are: to punish the offender, to deter the offender and others, to protect the community, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce his conduct, and to recognise the harm done to the victim and to the community. A number of these purposes point in opposite directions. In the present case, given the seriousness of this offence, the offender will inevitably be serving a lengthy term of imprisonment. This will be more than sufficient to satisfy the purposes of deterrence of the community, of denunciation and of recognition of the harm done to the community.
As relevant to this last aspect, namely the harm done to the community, extremely moving victim impact statements were read in Court by or on behalf of the deceased's mother and father. These bore testimony to the shattering impact of this offence on all who knew Jed Coates, particularly his immediate family. On behalf of the Court, I extend my heart-felt condolences to them. They may well consider that the sentence I am about to impose is quite inadequate, having regard to the extent of their loss. I hope that they understand that the loss suffered by them and the community is but one of the many factors to be taken into account on sentence.
The maximum sentence for murder is imprisonment for life, with a standard non-parole period of 20 years. Since the High Court judgment in Muldrock v R [2011] HCA 25, it has been accepted that the standard non-parole period constitutes a guide post rather than a starting point, as had previously been considered.
As already indicated, I consider the objective culpability involved in the present offence to be well below the midline, for reasons I have already given. In addition, virtually all the subjective factors relating to the offender personally are very positive. A further relevant matter is the offender's serious spinal condition, which is likely to make the prison environment particularly harsh for him.
As to the discount attributable to the offender's plea of guilty, Mr Peluso, who appeared for the offender, suggested that a discount of 15% would be appropriate in this case. The Crown prosecutor submitted that such a discount would be too high, given that the plea was only entered at the commencement of the trial. However she conceded that it did have high utilitarian value, as the Crown was proposing to call 53 witnesses at the trial. In the circumstances, I propose to allow a discount of 12.5%. The non-parole period I propose to impose will be very slightly below the statutory ratio set out in s.44 of the Act. The offender's serious spinal condition, which will almost certainly make imprisonment particularly arduous for him, constitute special circumstances which justify this approach.
The offender has been charged with three additional offences relating to his possession of the firearm which was used in this offence. He has requested that they be taken into account when sentencing him for the present offence. Given that they are comparatively minor charges and are inherently connected with the current offence, it is, in my view, highly appropriate to do so. Accordingly, in sentencing the offender for the offence of murder I am taking those three further offences into account.
The offender has been in custody since 19 June 2014, and his sentence is to commence on that date.
Matthew James Perry, for the murder of Jed Coates, and taking into account the offences on Form One, I sentence you to imprisonment consisting of a non-parole period of 13 years commencing on 19 June 2014 and expiring on 18 June 2027, with an additional term of 4 years and 6 months, commencing on 19 June 2027 and expiring on 18 December 2031, making a total sentence of 17 years and 6 months. The earliest date on which you will be eligible for release on parole is 18 June 2027.
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Amendments
08 November 2016 - Para 25 line 4, "above" changed to "below"
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Decision last updated: 08 November 2016