Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Milat v R; Klein v R [2014] NSWCCA 29
• Hearing dates: 13 December 2013
• Decision date: 14 March 2014
• Before: Bathurst CJ at [1]; Hall J at [2]; R A Hulme J at [3]

Decision

Milat:

1. Leave to appeal granted.

2. Appeal dismissed.

Klein:

1. Leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed in the Supreme Court quashed.

4. Sentenced to imprisonment comprising a non-parole period of 20 years and a balance of the term of the sentence of 7 years. The sentence is to date from 22 November 2010. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 21 November 2030. The total term of the sentence will expire on 21 November 2037.

• Catchwords: CRIMINAL LAW - appeal against sentence - murder - primary participant in killing - determination of worst category case - future dangerousness - early plea of guilty but discount withheld - use of axe as an aggravating feature -sentence not manifestly excessive; CRIMINAL LAW - appeal against sentence - murder - secondary participant in killing - erosion of utilitarian value of plea by disputing facts on sentence - insufficient disparity with sentence imposed upon primary participant - sentence not manifestly excessive
• Legislation Cited: Crimes Act 1900 (NSW); Crimes (Administration of Sentences) Act 1999 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW)
• Cases Cited: Elyard v R [2006] NSWCCA 43; Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575; House v The King [1936] HCA 40; (1936) 55 CLR 499; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; Power v The Queen (1974) 131 CLR 623; R v AB [2011] NSWCCA 229; R v Corrie Loveridge; R v AB [2013] NSWSC 1591; R v El-Andouri [2004] NSWCCA 178; R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep); R v Kalache [2000] NSWCCA 2; R v Milat & Klein [2012] NSWSC 634; R v Robinson [2002] NSWCCA 359; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589; R v Stani-Reginald [2013] NSWSC 567; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unrep); R v Winchester (1992) 58 A Crim R 345; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
• Category: Principal judgment
• Parties: Matthew Stephen Milat (Applicant); Cohen Klein (Applicant); Regina (Respondent)
• Representation: Counsel: Mr J Stratton SC with Mr P Pearsall (Milat); Ms J Manuell SC (Klein); Ms N Noman SC (Crown); Solicitors: Legal Aid NSW (Milat); Matthew Trevillion Solicitors (Klein); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2010/388148; 2010/388542

Decision under appeal

• Jurisdiction: 9111
• Citation: R v Milat & Klein [2012] NSWSC 634
• Date of Decision: 2012-06-08 00:00:00
• Before: Mathews AJ
• File Number(s): 2010/388148; 2010/388542

Judgment

1 BATHURST CJ: I agree with R A Hulme J.

2 HALL J: I agree with the reasons of R A Hulme J and the order his Honour proposes in relation to each of the applicants, Milat and Klein."

3 R A HULME J: On 20 November 2010, Matthew Stephen Milat and Cohen Klein murdered David Auchterlonie on his 17th birthday in the Belanglo State Forest. They had planned to kill him. Milat hit the deceased to his torso with a double edged axe. For more than 10 minutes as he pleaded for his life, Milat threatened him, made him lie on the ground, and used the axe in some manner a further two times. Finally, he struck the deceased to the rear of the skull embedding the head of the axe within. Death was instantaneous. Whilst this was occurring, Klein was using his mobile phone to record the events.

4 This summary, largely drawn from the written submissions by the Crown, describes a most chilling case of murder.

5 Milat and Klein were sentenced by Mathews AJ in the Supreme Court on 8 June 2012. Milat received a sentence of imprisonment for 43 years with a non-parole period of 30 years. Klein received a sentence of 32 years with a non-parole period of 22 years. They each seek leave to appeal against the severity of these sentences.

6 Murder is a crime punishable by imprisonment for life: ss 18(1) and 19A of the Crimes Act 1900 (NSW). There is also prescribed a standard non-parole period of 25 years where the victim is a child under the age of 18 years: item 1B of the Table in Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The standard non-parole period does not apply in the case of an offender who was aged less than 18 at the time of the offence: s 54D(3). Milat was aged 17 years 11 months at the time and Klein was aged 18 years 2 months.

Facts

7 A detailed summary of the facts may be found in the remarks on sentence of Mathews AJ which is publicly available: R v Milat & Klein [2012] NSWSC 634. Nevertheless it is appropriate to repeat much of it in order to put the subsequent consideration of the proposed grounds of appeal in an accessible context. The following is largely extracted from the judgment but it is interspersed with references to other evidence, including that to which her Honour later referred when dealing with disputed issues.

[4] At the time of the offence Matthew Milat was living with his grandparents in Bargo. Until about two months earlier he had been working in Newcastle and living with his then partner and their very young daughter. However in September 2010 he lost his job and moved back to Bargo. During that two month period Milat spent a considerable amount of time with the co-offender Klein. He also started to see quite a bit of the deceased, David Auchterlonie, and the latter's friend Chase Day.

[5] On Saturday 20 November 2010, Milat spent much of the day in the company of Klein. They were smoking cannabis from time to time, and talking to other friends. On occasions during the day Milat, often in the presence of Klein, said that the two of them (and possibly others) were proposing to go to the Belanglo State Forest that night and kill someone. The deceased's nickname, "Ockto" was mentioned. I will be returning to these conversations later and describing them in more detail, as they are highly relevant to the major disputed issues in relation to both offenders.

[6] 20 November 2010 was the deceased David Auchterlonie's 17th birthday. He spent much of the day enjoying his birthday celebrations, visiting friends and family. At various times during the day there were telephone calls or messages between the deceased and Milat or Klein. That evening the deceased was at his friend Chase Day's home. The telephone calls and messages continued. In one of these calls the offender Milat, who was using Klein's telephone, convinced the deceased to go with them to the Belanglo State Forest. The deceased told Day that Milat had called him earlier in the day, "asking him to go out to Belanglo to have a few drinks and a bit of fun."

8 Her Honour also referred (R/S at [31]-[32]) to evidence that on the morning of 20 November, Milat said to his girlfriend, Rachael, "Me, Cohen and someone else are going to kill Ockto". Klein was standing beside him when he said this. She asked him who the other person was and he told her it was Chase Day. Later that day when he was in his car with Klein and his girlfriend, Milat said, "We're going out to Belanglo. Someone's going to die". According Rachael he was rubbing his hands together and sounded excited. She asked who was going to Belanglo. Milat and Klein named various people until Milat ultimately said, "Chase will come". She asked who he was going to kill and he said, "Ockto".

9 At some stage during the day, Milat took a double-headed axe from the home of his friend, Ken, and secured it in the boot of his car.

[7] Later that evening Milat and Klein collected the deceased and Day in Milat's car from a point around the corner from Day's home. This was probably between about 8.30pm and 9.30pm. The four of them drove first to the Shell Service Station at Sutton Forest. Milat and the deceased went into the service station, apparently for the purpose of finding scissors to cut up some cannabis which the deceased had obtained. Afterwards the deceased, Klein and Day went into McDonald's at Sutton Forest and purchased food. The offender Milat remained in the car.

[8] It was immediately after this that Milat drove the car into the Belanglo State Forest. Klein was in the front passenger seat and the other two were in the back seat. When they were a short distance into the forest Milat parked the car. He got out and went to the back of the car, beside the boot. At that point the deceased got into the front seat and started to cut up some cannabis. Day was still sitting in the back seat of the car.

[9] The evidence shows that Klein got out of the car and joined Milat near the boot. Music was playing from the deceased's phone inside the car. At about that time Klein, who was holding his mobile phone, activated its video and audio recording facilities. An image of the deceased in the front seat of the car was apparently recorded. Otherwise, the remaining recording is solely audio and is contained on a CD which was tendered by the Crown.

[10] The existence of this recording means that there is a precise record of much of what was said by the participants during the 14 minutes leading up to the death of the deceased.

[11] The initial part of the CD records some general discussion about the deceased rolling a joint. Klein is also recorded as saying, quietly: "Yeah, go it". Milat said "Can you feel the adrenaline?" Klein replied "Yeah." Klein then said to the deceased that there might be a bong in the boot of the car and suggested that he go and have a look. The deceased accordingly got out of the car and went towards the boot. Not long afterwards Milat took a double bladed axe, which had apparently been in the boot, and struck the deceased in the torso.

[12] By this time Chase Day was also out of the car. Klein is recorded as telling him, on more than one occasion, to get back into the car. Day did so, followed by Klein. A further conversation took place between them inside the car which I shall be referring to later. It is highly relevant in the case relating to the offender Klein.

[13] At about the time that Klein got back into the car with Day, the music stopped. Clearly one of them had turned it off. Klein's telephone continued to record every word of what transpired between Milat and the deceased outside the car. It is apparent that Klein was holding the telephone with his arm extended out the car window during the whole of this time. The events which were recorded were conceded by Mr Stratton to be "chilling." This is, with respect, something of an understatement. ...

10 Her Honour considered (at [35]-[38]) a submission by Milat's counsel, Mr Stratton SC, that Milat had not yet formed an intention to kill the deceased, but was teaching him a lesson so that he would modify his behaviour in the future. It was also submitted that there was anger expressed by Milat, consistent with a hot-blooded unpremeditated killing, rather than the cold-blooded one as the Crown contended. The transcript of the recording, by itself, lent support to that submission. However, her Honour found that a different impression was gained from listening to the recording itself. Apparent anger suggested by the words used was not conveyed by the very precise and deliberate manner in which they were spoken.

11 Her Honour also noted that no provocation whatsoever was offered by the deceased which was likely to have fuelled Milat's anger. To the contrary, she said, the deceased was being entirely submissive during the whole episode, desperately trying to placate Milat. The fact that Milat forced the deceased to relinquish his phone and wallet during the course of the exchange denoted a degree of deliberation as well.

12 Milat was later to claim to a Juvenile Justice officer that he was concerned about the deceased spreading negative rumours about him; he had not planned to kill but had become increasingly angry. If the deceased had not spoken back he would have left him at the scene with only the injury sustained to his torso, as had been the original plan. But her Honour asked rhetorically, "why did he not do precisely that?" She noted that after being injured to the torso, the deceased cried out in pain and tried to run away but that Milat had continued to chase him, saying, amongst other things, "I'm fucking going to get you cunt" and "You're a fucking dead cunt Auchto".

[13] ... The deceased was clearly in great pain from the blow which had already been delivered. At least one more blow was inflicted during the exchange which followed. The deceased was running around the car, trying to escape from Milat, and was desperately trying to placate him. After some time Milat ordered that he lie on the ground and then stood over him, threatening him in what the Crown rightly described as "a most cruel, callous and brutal manner". Milat accused the deceased of spreading stories about him and sticking his nose into his business. Finally Milat swung the axe and struck the deceased in the back of his head. The sound of the axe hitting the deceased was caught in the recording. The deceased died instantly. Immediately afterwards the recording was stopped.

[14] Milat then returned towards the car, carrying the axe. A little later Day got out of the car and went to where the deceased was lying. He dragged him into an area away from the road where he and Milat covered the deceased's body with branches from surrounding trees. The offenders and Day then got back into the car and the three of them drove back to Bargo.

...

[16] At about 11.30 that night Milat and Klein went to the home of some friends whom I shall call by their first names, Ken and Sarah. Arrangements were made for Klein to sleep in Sarah's car overnight. Milat drove off and shortly afterwards, by arrangement, picked up another young man named "Damien". The two of them went to another friend's home where they watched movies until 2 or 2.30am.

[17] The next day, 21 November, the offender Milat was described as in effect gloating about his actions of the previous evening. He was quoted as saying "You know me, you know my family. You know the last name Milat. I did what they do." He described striking his victim in the back of the head with an axe. He said that he had put his clothing and the axe in a bag weighed down with bricks and thrown it into the river. His car also had been cleaned in order to remove all traces of the offence.

[18] Later that day, 21 November, Chase Day told his father what had happened and his father took him to Picton Police Station where he made a full statement. He led police to the Belanglo Forest and showed them where the deceased's body lay hidden under branches. A later post-mortem report showed that the deceased had died due to a single chop wound in the back of the head which had entered the skull and underlying brain matter a few centimetres in depth. There was also a blunt injury to the deceased's torso which was associated with a fracture of the ninth rib and haemorrhaging of adjacent soft tissues. There were various abrasions to the deceased's forehead and chin.

[19] On Monday 22 November 2010 the offender Milat was arrested. He declined to enter into a record of interview.

[20] Later on that day, 22 November 2010 the offender Klein was also arrested. He entered into a recorded interview in which he admitted accompanying Milat and the others to the Belanglo Forest on the Saturday night, but said that he did not know what Milat was planning. When they arrived in the forest he said that he remained in the car with Chase Day, trying not to look at what was happening between Milat and the deceased. After it was over Milat came back to the car and asked the two of them to get out. He "nearly spewed", he said, when he saw the deceased's body. He denied that he had previously spoken to Milat about harming the deceased.

[21] The offender Klein was arrested and charged. He has been in custody ever since. On 4 January 2011 a further recorded interview took place with him. On this occasion he told police that, earlier on Saturday 20 November, Milat had been talking about wanting to kill the deceased. However Klein had thought that Milat was "bullshitting" and paid no attention to him. Otherwise Klein's account of what took place in the forest that night was not materially different from what he had said in his earlier interview. In this second interview he was asked where his mobile phone was during the assault and killing of the deceased. He said that it was in his pocket in the car. He denied making any audio or visual recording on the phone.

[22] When the police initially took possession of Klein's mobile phone there was no apparent recording of the killing of the deceased, as it had been deleted. However the police forensic team later retrieved the recording, which then constituted the primary evidence against both offenders.

13 Aside from the matters I have interspersed into the above extract, her Honour referred to other matters relevant to the issue about whether the killing was premeditated. They included statements made by Milat after the killing and before his arrest:

[40] Immediately after the killing Milat drove Klein and Day back to Bargo. During the course of the journey Milat said: "That was such an adrenaline rush". Klein, who was sitting next to him, said "I told you that you're going to go down the same path as your uncle." Milat also told Day during this trip that the handle of the axe had been wrapped in electrical tape so that they could rip it off and remove their fingerprints.

[41] Later that night, after dropping off Day and Klein, Milat was watching a movie with some friends, including Rachael. She asked him: "Did you do it?" Milat responded: "Yes. I understand if you're scared or worried, but he deserved it."

[42] The next morning Milat drove to the home of his friend Ken, in the company of his friend Damien. It was from Ken's home that Milat had obtained the axe the previous day. Klein, who had spent the night in the car outside Ken's home, was described as looking very stressed. Milat who was laughing, said to Ken: "first one to ten."

[43] A little later Damien accompanied Milat when the latter drove to his grandparent's home. During the journey Milat said to him: "Guess who I killed?" Damien asked: "Who?" Milat said: "Nah, don't worry about it." Damien said: "Nah, who?" Milat said: "Auchto." Milat also said to him: "Ken killed someone. I told Ken, and we said first to ten."

[44] Damien asked Milat: "What did you kill him with?" Milat said: "I hit him in the head with an axe." Damien asked: "Who did you get if off?" Milat said: "Ken." Damien then asked whether he was serious, to which Milat responded: "I'm serious. Don't tell anyone. If Ken finds out that I told anyone he will kill me because the axe has Ken's DNA on it. If I find out you told anyone I will kill you."

[45] Later that morning Milat and Damien went to another friend's home. The friend's mother was also present. Whilst they were there Milat said "I took someone out to Belanglo last night. I hit him in the back of the head with an axe. I was there with two other guys. One of them didn't want to help me move the body. I said, 'if you don't do it, I'm going to do you too'." The friend's mother described Milat as saying: "You know me, you know my family. You know the last name Milat. I did what they do." Milat also referred to the axe getting stuck in the victim's head. He said "I had to kick the back of his head to get it loose." He was excited and bragging about what he had done.

14 Her Honour also referred to poems that Milat had written in gaol in July 2011 (nine months after the killing):

[47] Milat has been in custody since 22 November 2010. Whilst in prison he wrote a number of poems which he placed in an envelope addressed to his mother and asked her to put them somewhere safe. The mail was intercepted by Juvenile Justice and the poems were passed on to the police. Two of them appear to be recounting the events leading up to the killing of the deceased. One of these is titled "Killer looks and on evil side". The other is "Your last day". This latter poem is particularly chilling. I would not normally have quoted it during my sentencing remarks. However it is highly relevant to the issue for determination here. Accordingly I think I should quote it in full:

"Click-clack,

hear that,

stopping in the, middle of the track,

Are you Getting Nervous in the back,

Should be Cxxt your getting wAcked,

talk shit here, talk shit there,

No-one'z really gunna care,

but talk shit with every breath,

You just signed away your health,

I can see you start to sweat,

Wanderin what your gunna get,

hopin 4-1 in the head,

Cxxt ILL Put it in Your Leg,

tell me, ARE YA HAVIN FUN,

get up Cxxt, And start to run,

how fAr are ya gunna get,

Your Match Cxxt you have just Met,

stumblin all OVA the place,

Hear the crunch of leaves and feet,

feel your heart, skip a beat,

Are ya gunna get away,

No hope kid this is your day,

The day that you wont be found,

Six feet under Neath the ground."

(Spelling as in original)

[48] In yet another poem, entitled "Cold Life", Milat finishes with the following words:

"I am not fazed by blood or screams

Nothing I do will haunt my dreams

Maybe they might scare you

Cold blooded killer that's me not you."

15 Her Honour considered that the poem "Your last day" had "all the hallmarks of a gloated reminiscence of the deliberate tormenting and killing of the deceased" and not the work of a man who had only intended to injure but had succumbed to anger at the last moment and ended up killing.

16 Her Honour concluded, beyond reasonable doubt, that the killing of the deceased was, on the part of Milat, deliberate and premeditated.

17 There was also a significant dispute about the Crown's contention that there was a prior agreement between Milat and Klein to kill the deceased; one that was formed at least 12 hours before. It was a significant dispute because, as her Honour said, if the Crown's contention was correct, it placed his level of culpability at a very high level. Mr Corr, counsel then appearing for Klein, contended that he should be sentenced on the basis of an extended joint criminal enterprise: he was a party to an agreement with Milat that the latter would assault the deceased and that he, Klein, would assist in getting the deceased to a place where the assault could occur; he foresaw grievous bodily harm might be caused but not death.

18 In her consideration of this dispute, her Honour had regard to certain aspects of the evidence set out above: Milat's statements during the day, in the presence of Klein, in which he spoke of killing "Auchto" that night; the conversation between Milat and Klein about "feeling the adrenaline"; and it being Klein who suggested to the deceased that he get out of the car and go around to the boot.

19 Her Honour continued:

[67] Of considerably greater significance are the exchanges between Klein and Chase Day after the assault on the deceased had commenced. Whilst the deceased was crying out in agony, Day was remonstrating with Milat, saying: "Don't do this shit man. What the fuck you doing Matt." At much the same time Klein was recorded on a number of occasions as telling Day to get into the car. Day did so, and Klein got in beside him. During this time the deceased was running around the car trying to escape from Milat. Klein was holding his telephone with his arm extended out the car window. One can only assume that this was done deliberately for the purpose of recording what took place between Milat and the deceased. The recording also picked up parts of the conversation which took place in the car between Klein and Day. This is relied upon by the Crown in support of its contention that Klein was well aware that Milat was proposing to kill the deceased. Inside the car Day is recorded as saying: "Stop this cunt, Cohen." At which point Klein called out to Milat: "Just do it fuckin." A little later Day said to Klein inside the car: "Don't let him do it, that's Auchto." Klein said: "Just be quiet."

[68] Of very considerable significance is the following exchange which took place between Klein and Day a short time later.

Klein: Chase will you still talk to me?

Day: I will talk to you

Klein: Don't say nothing...

Day: No I won't..

Klein: Alright, I made sure. Take my hand. I made sure that you are fucking ... alright....I fucking made sure of it. He was talking about... he didn't want murder two.. That's why I told him... that I would keep you in the car and try talk to ya. Alright. ... See how much I'm squeezin' your hand..

Day: Yeah I do.

Klein: That's how much I fuckin shaking mate. That's how much I mean it cunt.

[69] The Crown attached particular significance to the statement by Klein that Milat did not want to "murder two", the clear inference being that Klein knew that he intended to murder one person. As to this, Mr Corr submitted that when Klein made this comment he had finally realised, from what was happening outside the car, that what Milat had been saying earlier in the day about planning to kill the deceased was in fact true. I shall be returning to this later.

[70] No further relevant conversation was recorded between Klein and Day on the mobile phone. However the Crown relies upon the fact that Klein was deliberately recording everything that took place between Milat and the deceased outside the car. It was not until immediately after the fatal blow was struck that he turned off the recorder.

[71] In addition to the conversations which were recorded on the phone, Day said that whilst they were in the car he asked Klein: "Is he really going to kill him?" to which Klein replied "I think so."

20 Her Honour referred to submissions made by Klein's counsel to the effect that the distress he had displayed on the day following the murder, various statements he had made to a psychiatrist and in police interviews, and the fact that a fourth person (Day) was present, supported the proposition that he had no advance knowledge that the deceased was to be murdered and that there was no prior agreement between Klein and Milat that this would occur. She gave reasons for rejecting those submissions.

21 In the end, her Honour concluded beyond reasonable doubt that "when the four of them went into the Belanglo Forest, Klein knew that Milat's intention was to murder the deceased."

Personal circumstances (Milat)

22 Milat was 40 days short of his 18th birthday at the time of the murder. He grew up in the Moss Vale and Bargo area. Aside from a turbulent relationship with his stepfather and commencing to use cannabis at about the age of 14, and other drugs at a later time, the circumstances of his upbringing are not of any particular significance.

23 He commenced a relationship with a young woman when he was aged 16 and they had a child. He commenced another relationship with Rachael, referred to in the facts above, shortly before the murder.

24 He had a criminal history comprising a drink driving offence. He had been held in custody since his arrest on 22 November 2010. During that time he studied with a view to obtaining the Higher School Certificate.

25 Dr Richard Furst, forensic psychiatrist, assessed Milat in May 2012 at the request of his legal representatives. Dr Furst found him to be articulate and of at least average intelligence. He said Milat was likely to have been dependent on drugs of abuse, particularly cannabis, amphetamines and the like at the time of the offence. He was not suffering from any serious mental illness.

26 Dr Furst thought that Milat's abuse of drugs may have had a destabilising effect on his mood and contributed to the level of anger he felt towards the deceased. He also thought there may be a degree of personality dysfunction.

27 Dr Furst made the formal diagnoses of "substance abuse disorder" (cannabis, amphetamines, alcohol) and "possible drug induced psychosis". He also noted "personality dysfunction not otherwise specified".

28 Dr Furst's assessment of Milat's risk of reoffending was expressed as follows:

Mr Milat has a number of static or background risk factors that may increase his risk for future violence, most notably the violent nature of the current offence before the Court, a history of substance dependence, his young age at first violent offence, instability in his family of origin and poor coping skills that may well represent a level of personality dysfunction. In my opinion, his risk of future violent offending is moderate. (AB 1084)

29 Professor David Greenberg, also a forensic psychiatrist, saw Milat on two occasions in December 2010 and again on in June 2011 but that was in connection with making routine psychiatric assessments and not for forensic purposes. He was engaged in April 2012 to provide a report for the Crown on the topic of Milat's future dangerousness. He was denied access to Milat but wrote his report with the assistance of a variety of documents, a copy of the recording and a copy of Dr Furst's report.

30 Professor Greenberg compared what Milat had told Dr Furst about his use of alcohol and drugs with documented accounts he had given to a significant number of other professionals and concluded that he "is an unreliable historian with regard to his use of illicit substances at the time prior to and during the offence". He agreed with Dr Furst's assessment that Milat was not suffering from any psychiatric illness at the time of the offence, or at the times of being interviewed.

31 Professor Greenberg did, however, find that there were significant personality problems which were not dissimilar to those which are described as psychopathy, or in DSM classification terms, antisocial personality disorder. He wrote:

His tendency to blame difficulties on external factors, lying, manipulative, poor remorse, shallow emotionality, callousness and criminal versatility are features of psychopathy.

32 Professor Greenberg reached a more negative conclusion as to Milat's risk of future dangerousness:

In view of his background, the nature of the offence and considering the tone and callous manner recorded on the mobile phone of his co-accused and his subsequent documented behaviour following the offence, I am of the opinion that his risk, although difficult to ascertain in the future, is regarded as much higher than the average prisoner charged with a violent offence.

33 The sentencing judge found that purported expressions of remorse in recent times were not genuine but were made "for forensic purposes only". She also noted that both psychiatrists had noted his lack of empathy.

34 Her Honour concluded on the topic of future dangerousness:

[100] Having regard to whole of the evidence relating to this issue, I consider that Milat, with his personality dysfunctions and his lack of empathy, poses at best a substantial risk of violent re-offending. In short, he remains a serious potential danger to the community.

Other matters taken into account in the assessment of sentence (Milat)

35 With reference to s 21A(2) of the Crimes (Sentencing Procedure) Act, her Honour found that matters which aggravated the gravity of the offence were the use of a weapon, the offence being committed in company and being planned, and, most significantly, the involvement of gratuitous cruelty. In relation to the latter, she considered that the characterisation by the Crown of the deceased having been tortured and tormented was an apt one. She said:

For the last ten minutes of his life, when he was already seriously injured, the deceased was subjected to unimaginable torment by Milat. It is virtually impossible to describe the horror of the deceased's circumstances during those last minutes. (R/S [101])

36 Her Honour turned to the question of motive and concluded that Milat had taken the life of an innocent young man "in an unimaginably cruel, brutal and violent manner, solely for his own personal enjoyment." She accepted the Crown's submission that it was a "thrill kill".

37 As to mitigating factors, her Honour said that there were none that related to the offence but there were two subjective matters: "he has no significant record of previous convictions and is therefore taken to have been a person of good character" and "he entered a plea of guilty" in the Children's Court and adhered to it.

38 Her Honour acknowledged that Milat's plea of guilty had a utilitarian value that ordinarily would lead to a sentencing discount and she cited the seminal authority for that proposition: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. However, she also noted that it was recognised in that case (at [157]) that there are some cases in which the protection of the public requires such a long sentence to be imposed that no discount is appropriate. She concluded:

[108] ... Taking into account the extreme gravity of the crime committed by Milat and the serious danger which he presents to the public I consider that the utilitarian value of his plea of guilty should not be productive of a reduction in sentence.

39 Finally, her Honour found that "in the extraordinary circumstances of this case" it fell within the worst category of cases of murder. She noted the provisions of s 61 of the Crimes (Sentencing Procedure) Act which mandate the imposition of a life sentence where the level of culpability of a murder "is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence". However, her Honour also noted that s 61(6) excluded the operation of the provision from a case where the offender was under the age of 18 at the time of the offence and said:

[105] ... It follows that, notwithstanding the extreme gravity of this offence, the Court retains a discretion to deal with it other than by imposing a sentence of life imprisonment. In the present case, given the youth of the offender and the difficulty in predicting future dangerousness so far into the future, I propose to impose a determinate sentence. However, in the extraordinary circumstances of this case, it must be an extremely lengthy one.

Personal circumstances (Klein)

40 Klein was three months older than Milat but her Honour found that Milat was "clearly the dominant personality of the two".

41 Aside from the following matters, Klein's upbringing was relatively unremarkable. The history he gave to Dr Olav Nielssen, forensic psychiatrist, included that he began drinking alcohol at around the age of 15 but was not a problem drinker. He also began using cannabis at about that time and was a daily user until his arrest. He had tried other drugs but only occasionally.

42 Dr Nielssen diagnosed Klein as suffering from "Substance abuse disorder, currently in remission". That diagnosis was made on the basis of his "account of abuse of drugs known to have harmful psychological effects, his account of experiencing paranoia and impaired mental performance associated with his use of drugs, especially cannabis, and the role of substance use in the affiliations that led to his involvement in this offence". It was said to be "in remission" on the basis of his detention in a largely drug free environment.

43 The sentencing judge said that she found it difficult to determine to what extent, if any, Klein was remorseful for his participation in the offence. He gave an account to Dr Nielssen of "intrusive memories of the offence and distressing dreams on themes involving the offence in the months after his reception to prison". However, these had abated over time, in part as a result of treatment with antidepressant medication.

44 Klein told Dr Nielssen that he realised that his drug use had been a major contributing factor to his associations and loss of judgment around the time of his involvement in the offence and that he no longer intended to use drugs. Dr Nielssen concluded his report as follows:

It is difficult to predict how a person might behave in the future or the trajectory of a person's long term rehabilitation. However, based on the information that is available and his presentation during the recent interview [in February 2012], I believe that Mr Klein can be successfully rehabilitated to a productive and law abiding way of life.

45 The judge noted that Klein minimised his role in the offence in his interview with Dr Nielssen. The history included:

Mr Klein confirmed that Mr Milat had discussed killing somebody and had also mentioned killing Mr Auchterlonie, but said that Mr Milat had frequently made similar threats, and had also discussed committing acts of cruelty and killing animals. He said that he did not believe that Mr Milat would actually carry out the killing as he said he would.

46 Dr Nielssen also reported that Klein had told him that "he had made full admissions to the police regarding his role in the offence prior to the recovery of the recording on his mobile telephone". However, Mathews AJ found that Klein had told deliberate lies in his police interviews (R/S [77]). She noted that in both interviews he had claimed that it was Milat who had asked the deceased to get out of the car and go to the boot. In the second interview he denied believing Milat when he spoke of his plan to kill the deceased. He claimed that his mobile phone was in his pocket when he was in the car and denied making any recording.

47 Dr Nielssen was asked in cross-examination if Klein's role was more than that which he had described, for example, that it was he who lured the deceased out of the car and to the boot in order that he could be struck with the axe, whether that would be a significant matter to take into account in assessing his prospects of rehabilitation. The doctor agreed that "it might" and that "it would be significant". Other similar matters were suggested to him: that Klein had played a pre-arranged role in containing Mr Day in the car; that he had willingly recorded the murder; that he had participated through nothing other than the thrill of seeing someone being killed. Ultimately Dr Nielssen responded:

The issues you are referring to would suggest the presence of a more callous and perhaps anti-social person and all those would influence a person's prospects of rehabilitation.

48 Dr Nielssen also said that these would be enduring character and personality traits and would increase the need for caution in assessing Klein's prospects of rehabilitation.

49 Professor Greenberg also provided a report in relation to Klein. It was based only upon his review of documents, including the report of Dr Nielssen. He noted that Klein had given inconsistent accounts concerning his use of cannabis on the day of the offence but accepted that some was consumed. He considered that this would have been a disinhibiting factor.

50 Professor Greenberg agreed with Dr Nielssen that a diagnosis of Conduct Disorder or Antisocial Personality Disorder was not warranted. However, he found that Klein exhibited "significant character or personality traits or difficulties which would ... indicate that he has some features of antisocial personality difficulties" and that these were a partial explanation for his offending behaviour.

51 Ultimately, Professor Greenberg found it "difficult to make any meaningful long-term predictions about his future dangerousness at this time".

52 The sentencing judge concluded that Klein's prospects of rehabilitation were "at least moderate and possibly more favourable" (R/S [120]).

Other matters taken into account in the assessment of sentence (Klein)

53 The judge made the same findings as to aggravating factors by reference to s 21A(2) as she made in the case of Milat. However, she qualified her finding in relation to gratuitous cruelty as follows:

I have already referred to the almost inconceivable torment and torture suffered by the deceased in the last ten minutes of his life. This was directly at the hands of Milat, not Klein. I think that it is very possible that the actual level of torment and humiliation inflicted upon the victim was greater than Klein had anticipated. This would do much to explain his symptoms of stress the following day. Accordingly, whilst this is an extremely serious aggravating factor in the case of both offenders, it is much more significant in the case of Milat, who actually inflicted the cruelty, than in the case of Klein.

54 As to mitigating factors, her Honour found that Klein had no significant record of previous convictions and was therefore taken to be a person of good character. She noted that he had pleaded guilty at "the first available opportunity" and accepted that he was entitled to a discount for the plea's utilitarian value. However, she accepted the Crown's submission that such value was "somewhat diminished" because there had been a dispute as to the facts in the sentence hearing requiring the playing of traumatic portions of the recording of the murder. She resolved to allow a discount "towards the lower end of the range of discounts, which is from 10 to 25 per cent". She did not specify precisely what discount was allowed but confirmed that the sentence had been "adjusted accordingly".

55 Her Honour referred to a submission by Klein's counsel concerning the standard non-parole period for murder being 20 years but being 25 years when the victim is a child under 18 year of age. It was submitted that the higher figure is attributable to the fact that a child is likely to be a defenceless victim but in this case the deceased was a fully grown male only a year younger than the two offenders. For this reason, so it was submitted, the rationale for the extension of the standard non-parole period beyond 20 years was significantly reduced. Her Honour accepted this and said she would take it into account "in so far as I am deferring to the standard non-parole period" (R/S [126]).

Some matters taken into account in both cases

56 Towards the end of her sentencing judgment her Honour referred again to the fact that both offenders "are still very young" which she regarded as "clearly a relevant matter throughout the sentencing process".

57 Special circumstances warranting a reduction of the proportion of the sentences represented by the non-parole period were found: s 44(2) Crimes (Sentencing Procedure) Act. Her Honour found that these comprised the youth of the offenders, the fact that this is their first term of imprisonment, and the likelihood of their needing a lengthy period of supervision following their release.

Grounds of appeal (Milat)

1 The sentence imposed was manifestly excessive and that her Honour erred in her assessment that:

a) the offence was "within the worst category of cases of murder", and

b) there was a "substantial risk of violent re-offending", and that the applicant "remains a serious danger to the community".

2 Her Honour erred in assuming the applicant was subject to a standard non-parole period.

3 Her Honour erred in not allowing the applicant any discount for his early guilty plea.

4 Her Honour erred in finding the use of the axe to [be] an aggravating factor for the purposes of s 23A(2) [sic - s 21A(2)] Crimes (Sentencing Procedure) Act 1999.

5 The disparity between the sentence imposed on the applicant Milat, and the sentence imposed on the co-offender, is such as to leave the applicant Milat with a legitimate sense of grievance.

58 It is appropriate to deal with grounds 2 to 5 before considering the merits of ground 1.

Ground 2 (Milat) - error in assuming the applicability of the standard non-parole period

59 I have earlier noted that the standard non-parole period for the murder of a person under the age of 18 does not apply in the case of an offender who was under that age at the time of the offence: s 54D of the Crimes (Sentencing Procedure) Act. Her Honour was reminded of this by the Crown Prosecutor in written submissions and during the course of oral submissions.

60 Prior to reading her reasons for sentence, a copy of the judgment was provided to the legal representatives. I assume her Honour did this to save the lawyers the task of taking notes as the judgment was read. It is a useful and courteous practice, particularly when the judgment is as lengthy as this one was. The document provided to the legal representatives was incomplete; it did not include the final paragraphs in which the details of the sentences were set out.

61 This ground is based upon two paragraphs that were in the document and which were included in what her Honour read out. The first of the paragraphs appeared in a section of the judgment under the heading "Milat - General sentencing considerations".

[107] The standard non-parole period for murder where the victim was a child under 18 years of age is 25 years. Pursuant to the decision in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 the standard non-parole period operates as a guide in the sentencing process rather than a necessary starting point. It is much more significant in the case relating to the co-offender Klein, and I will be discussing it later when dealing with the factors relevant to him.

62 Paragraphs 111 to 124 dealt with matters under the heading, "Klein - General sentencing considerations". At paragraph 125 her Honour said, "Finally I turn to deal with a few general matters which related to both offenders". The second of the paragraphs relevant to this ground is:

[127] The standard non-parole period for murder is 20 years imprisonment. However for the murder of a child under 18 years of age it is 25 years imprisonment. The standard non-parole period, as already mentioned, is now to be used as a guide only. In this case it is much more relevant in the case of Klein than it is to Milat, given the extremely high degree of Milat's culpability and his lower rehabilitation prospects. Mr Corr submitted, and I accept, that the higher standard non-parole period for the killing of a child is attributable to the fact that a child is likely to be a defencelessness [sic] victim. In the present case, although technically still a child, the deceased was a fully grown male who was only a year younger than the two offenders. In these circumstances, the rationale for extending the standard non-parole period beyond the normal 20 years is significantly reduced. I accept this to be the case, and in so far as I am deferring to the standard non-parole period, I will take this into account. (Emphasis added)

63 Immediately after the sentences were announced there was the following exchange:

CROWN PROSECUTOR: Just one matter; that if your Honour looks at paragraphs 107 and 127 of your Honour's judgment it would give the impression that your Honour regarded the standard non-parole period as applying to the juvenile Milat. I think submissions were made to your Honour that didn't technically, by legislation, apply to Milat, and I wonder if your Honour would be prepared to adjust your remarks on that sentence in that regard.

HER HONOUR: That it did not relate to Milat?

CROWN PROSEUTOR: No, because he was a juvenile at the time.

HER HONOUR: Well, I've said that it doesn't relate. I think I have.

CROWN PROSECUTOR: I just want to make that clear, because one may subsequently interpret your Honour's comments in paragraph 107 and 127.

HER HONOUR: I certainly did not mean to give that impression, Mr Crown. Thank you very much, and I will ensure that that is adequately conveyed, because I certainly intended to give the impression that related to Klein but not to Milat.

CROWN PROSECUTOR: Thank you, your Honour.

HER HONOUR: No other matters?

64 The judgment published on the Caselaw website was different to that which had been read out at the time of sentencing in that what was formerly paragraph 107 was deleted, the words emphasised in what was formerly paragraph 127 (which became 126) were deleted, and the citation of Muldrock was inserted at the end of the third sentence of new paragraph 126.

65 The submissions for Milat proceed upon an assertion that the sentencing judge in fact took into account in her assessment of his sentence that the standard non-parole period of 25 years operated as a guidepost in the manner described in Muldrock.

66 It can be expected that a judgment of this length and complexity went through a number of revisions in the drafting process. How the offending portions came to be in the judgment in the first place is unknown. What is known, however, is that her Honour was aware that the standard non-parole period did not apply in the case of Milat and it was not taken into account in the assessment of sentence. That is the effect of what her Honour said in her immediate and unequivocal response when the Crown Prosecutor raised the matter.

67 Her Honour's statement that she would "ensure that that is adequately conveyed" was clearly a reference to her proposal to make an appropriate correction to the published version of her reasons for sentence. Senior and junior counsel for Milat took no exception to this proposal.

68 I am not prepared to accept that her Honour should not be taken at her word. The assertion of error upon which this ground is based is not made out.

Ground 3 (Milat) - no discount for plea of guilty

69 Her Honour acknowledged that Milat's plea of guilty would ordinarily have warranted a discount on his sentence because of its utilitarian value. I have earlier set out (at [38]) her reasons for not adopting the usual practice.

70 A court is required by s 22 of the Crimes (Sentencing Procedure) Act to take into account an offender's plea of guilty but is not required to impose a lesser penalty than it otherwise would have imposed:

22 Guilty plea to be taken into account

(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and

(c) the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. (Emphasis added)

71 The reduction of a sentence in recognition of its utilitarian value and to encourage early pleas of guilty in other cases has been recognised at least since the early 1990s: R v Winchester (1992) 58 A Crim R 345 at 350. But it has been recognised that sometimes a reduction of sentence should not be made. In R v Kalache [2000] NSWCCA 2, Sully J, with whom Hidden J agreed, stated:

[38] ... [I]t does not, in my opinion, run counter to the general principles stated in Winchester to recognise that there will inevitably be cases where the sheer enormity of the criminal conduct involved is such as to require that the proper protection of the public, and the maintenance in every other proper way of the rule of law, will entail that the utilitarian principle must, albeit exceptionally, yield to considerations of greater weight.

72 Kalache involved a Crown appeal against determinate sentences where Sully and Hulme JJ were of the view that a life sentence should have been imposed at first instance; Hidden J found this unnecessary to decide. Hulme J dissented as to the result but was equally of the view that "no discount should have been allowed to him for [the pleas of guilty]" (at [201]). Because of the principles then governing the determination of Crown appeals, Sully J proposed a series of determinate sentences significantly greater than those originally imposed. Hidden J agreed. There was no discounting of those sentences on account of the pleas of guilty.

73 Later that year in R v Thomson; R v Houlton this Court promulgated a guideline that the utilitarian value of a plea of guilty should ordinarily be met with a discount on the sentence to be imposed within a range of 10 to 25 per cent. But the judgment of Spigelman CJ, with whom four other members of the Court agreed, included the following:

[157] There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. (See e.g. R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen [1989] 11 Cr App R (S) 182 at 184).

[158] There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea. (See e.g. R v Kalache [2000] NSWCCA 2, see esp per Sully J at [38]-[42]).

74 Whether to allow for a discount and, if so, to what extent, are matters for the discretion of a sentencing judge. Such decisions are reviewable by this Court on House v The King principles: House v The King [1936] HCA 40; (1936) 55 CLR 499.

75 Counsel for Milat submitted that there was only one case they could find where something less than the maximum penalty was imposed but no discount was given: R v Robinson [2002] NSWCCA 359. However, R v Kalache provides another example and, as senior counsel for the Crown pointed out, there are two recent first instance sentencing examples: R v Stani-Reginald [2013] NSWSC 567 and R v Corrie Loveridge; R v AB [2013] NSWSC 1591.

76 It was submitted by counsel for Milat that this Court was wrong in R v Robinson to extend the range of cases where no discount can be given to cases where the statutory maximum is not imposed.

77 The basis for this submission was that once a sentencing judge has determined to impose something other than the maximum penalty, "there is no logical reason for declining to extend the discount for a plea". It was submitted that a "statement of the law" in R v El-Andouri [2004] NSWCCA 178 was to be preferred to R v Robinson.

78 An additional basis for the submission was that it was contrary to public policy in encouraging guilty offenders to forgo their right to trial and make an early plea of guilty. It is clear from the judgment of Spigelman CJ that encouraging pleas of guilty and particularly early pleas, was the main rationale for the promulgation of the quantified guideline in R v Thomson; R v Houlton.

79 An alternative submission was that cases where no discount is given for a plea should be limited to those "where the heinousness of the offence, or the need for the protection of the public, are so great".

80 The primary submission for the applicant goes too far. It is to the effect that a sentencing judge's discretion to impose a lesser penalty in cases where there is a plea of guilty in accordance with s 22(1) of the Crimes (Sentencing Procedure) Act is not a discretion at all in cases in which something other than the maximum penalty is imposed. The submission would have it that in those cases the statutory provision is to be read with the word "must" substituted for the word "may".

81 The "statement of the law" in R v El-Andouri referred to in the written submissions was, presumably, a reference to paragraphs 34-35 of the judgment quoted earlier in those submissions. What appears there was really a paraphrase of what Spigelman CJ said at [157]-[158] in R v Thomson; R v Houlton which I have set out above. It was followed by the expression of a conclusion on the facts of the case at hand that the offence "did not fall into the category of those offences in respect of which it would be inappropriate to allow a discount for a plea of guilty".

82 The offence in question in R v El-Andouri was stealing a motor vehicle. The primary judge found that it fell into the worst category of such offences because the vehicle was then used to perpetrate a most serious example of the offence of robbery in company inflicting grievous bodily harm. The judge had found that the robbery offence was in the worst category but held back from imposing the maximum penalty on account of the offender's youth, his prospects of rehabilitation and his plea of guilty. It was illogical then that in respect of the theft of the car used in the robbery he declined to take those matters into account and imposed the maximum penalty of imprisonment for five years.

83 It must be observed as well that the paraphrase in the joint judgment of Tobias JA, Kirby and Bell JJ in R v El-Andouri of the Chief Justice's judgment in R v Thomson; R v Houlton puts a gloss on that passage that, with respect, has the potential to misrepresent what the Chief Justice actually said. At [157]-[158] he was providing examples of cases in which no discount for a plea of guilty might be allowed. But what appears in the paraphrase is this:

[34] It is true as the Crown submits that in some cases a plea will not lead to any discount. However, as the Chief Justice pointed out in R v Thompson [sic] (2000) 49 NSWLR 383 at 418 [157]-[158], such cases would generally be confined to those where the protection of the public requires a long sentence or which so offend the public that the maximum sentence without any discount for any purpose is appropriate, such as where a life sentence can be, and is, imposed notwithstanding a plea. (Emphasis added)

84 Spigelman CJ did not say that "such cases would generally be confined". In my view, his Honour was simply pointing out that there are rare cases where the policy of transparency in allowing quantified discounts on sentences so as to encourage early pleas of guilty need not be applied because of their exceptional circumstances. He certainly was not purporting to define a closed category of such cases.

85 Mathews AJ declined to allow a discount for Milat's plea of guilty because of "the extreme gravity of the crime" and "the serious danger which he presents to the public". These reasons echo those of the sentencing judge in R v Robinson (they are quoted at [24] of the judgment).

86 No error was found in that case. It was a case in which a sentence short of the maximum penalty was imposed. The primary judge only held back from holding that the offence was in the worst category because of the offender's age (17). R v Robinson did not provide a "statement of the law" that was in conflict with anything said in R v El-Andouri. Indeed, it is not at all clear what "statement of the law" counsel for Milat were referring to. The decision in R v Robinson concerning the primary judge not allowing a discount for the plea was simply based upon the facts of the case. The reasoning of the judge that no discount would be allowed because of the extreme gravity of the crime and the serious danger which he represented was held not to be erroneous. This was simply the application of the example cited by Spigelman CJ in R v Thomson; R v Houlton at [157].

87 I do not accept the contention of counsel for Milat that there was anything erroneous in the decision in R v Robinson.

88 I turn to the alternative submission about confining the withholding of a discount for a plea of guilty to cases of great heinousness, or cases where there is a need for protection of the public. There is no need to determine the issue of whether there should be any confinement as, in my view, this case falls into that class.

89 It was conceded by counsel for Milat that this was a "very serious example of the offence of murder". It was conceded that it was open to her Honour to find that the killing was premeditated; it involved some degree of planning; and it was aggravated by the presence of another offender (AWS 93). At a later point in the written submissions there was the concession that it was open to the judge to find that the offence was "premeditated, cruel and brutal" (AWS 108).

90 Those concessions were appropriate. They provide another way of saying that this was a murder of "great heinousness".

91 There was an air of illogicality, with respect, with a further aspect of the submissions. It was accepted that if the judge had not exercised her discretion to not impose a life sentence then there would have been no complaint about her declining to allow a discount for the guilty plea. But it was contended that as soon as she exercised this discretion in Milat's favour, she was then required to also extend to him the benefit of a further reduction. I do not accept that this was required.

92 Withholding a discount for the plea of guilty was within the bounds of the sentencing judge's discretion in this unusual and extreme case. I would not uphold ground 3.

Ground 4 (Milat) - error in finding use of axe to be an aggravating factor

93 This ground is based upon the following in the remarks on sentence:

[101] I now turn to the aggravating and mitigating factors as provided in s 21A of the Crimes (Sentencing Procedure) Act 1999. The following aggravating factors, which are not inherent in the offence itself, apply in relation to Milat:

The offence involved the actual use of a weapon (s 21A(2)(c)). In this regard, the double bladed axe use[d] by Milat to first injure and later kill the deceased was, as the Crown submits, most unusual and must have struck incredible fear in the heart of the deceased.

...

94 A court is not to take a matter into account as an aggravating factor if it is an element of the offence (s 21A(2)) or is an inherent characteristic of the class of offence in question: Elyard v R [2006] NSWCCA 43 at [40] (Howie J).

95 Use of a weapon is neither an element nor an inherent characteristic of the offence of murder. The fact that it is a commonly encountered feature in murder cases will often reduce, or perhaps even eliminate, its significance as an aggravating factor.

96 But in this case it was not just "the use of a weapon" to which the sentencing judge had regard. The weapon was a particularly fearsome, long-handled, almost medieval-style object and would have, as her Honour observed, heightened the terror of the deceased significantly.

97 It was open to her Honour to have regard to this as rendering the offence more serious. This ground must be rejected.

Ground 5 (Milat) - disparity of sentences

98 The argument in support of this ground was that whilst both offenders pleaded guilty in the lower court, Klein engaged in a dispute about the facts in the proceedings on sentence and still received a significant discount for his plea of guilty whereas Milat received nothing. Therefore, Milat's sentence should have been closer to that which was imposed upon Klein.

99 For the reasons given above in relation to ground 3, there is no merit in this ground.

Ground 1 (Milat) - Manifest excess

General considerations

100 Counsel for Milat made some general submissions before turning to the two specific issues nominated in the statement of the ground.

101 The first point was that as serious as this murder was, its objective gravity needed to be kept in proper perspective. That must be readily accepted.

102 Issue was taken with the judge's finding that the murder was a "thrill killing". Her Honour said:

[102] It is also relevant here to discuss Milat's motive for committing this apparently senseless and brutal murder. As already indicated, I completely reject any suggestion that the deceased himself did anything whatsoever to provoke Milat. Given the whole of the circumstances, and particularly the fact that the killing of the deceased was graphically recorded on the co-offender's mobile phone, I can find no other motive than that submitted by the Crown, namely that this was a "thrill kill" on the part of Milat. In other words, he took the life of an innocent young man, who was unfortunate enough to be his friend, in an unimaginably cruel, brutal and violent manner, solely for his own personal enjoyment. That any person, who is not suffering from a psychiatric disorder, could behave in such a manner is almost inconceivable. However, the evidence in this case all points in that direction.

103 The contention of counsel for Milat was that he was very angry with the deceased, although it is accepted that he had no justification for being so. It was suggested that the recording supported this proposition. I have previously mentioned that the words on the pages of the transcript convey a sense of anger but the sentencing judge said that a listening to the recording gave a different impression. I have listened to the recording myself and am of the view that her Honour's conclusion was one that was open to her. Milat's voice is certainly raised and his utterances are menacing, abusive and expletive ridden. Domination and control is evident. But there is a consistency in his tone; there is nothing that indicates any rising level of emotion. There is force in the submission made by the Crown Prosecutor that "his angry voice is staged for the recording" (AB157).

104 There are other features that support the sentencing judge's finding. That there had been discussion about the proposed murder during the 12 or so hours prior to it happening; that immediately before it happened, Milat asked Klein whether he could "feel the adrenalin"; that during the journey back to Bargo he said, "that was such an adrenalin rush"; and that Milat spoke to various people in the ensuing 24 hours or so with unabashed ease about what he had done, are all consistent with the killing being something Milat did to gain a perverted sense of pleasure.

105 The concession that the murder was planned, by itself, goes a long way in supporting her Honour's finding that the motive for the killing was "for his own personal enjoyment". Her finding that at least one of the poems had "all the hallmarks of a gloated reminiscence of the deliberate tormenting and killing of the deceased" is relevant alongside the inhibition of Milat in telling others about what he had done in the immediate aftermath. So too, in my view, was the opinion of Dr Furst that the selection of the location, the Belanglo State Forest, was significant given the family context. (AB 133-4) I am not persuaded that her Honour's acceptance of the Crown's term, "a thrill kill", was not open to her.

106 Issue was also taken with the judge's use of the word "torture". It appeared in the judge's review of aggravating factors, one of which was "gratuitous cruelty":

[101] ... The offence involved gratuitous cruelty (s 21A(2)(f)). This is the most serious of the aggravating features of this offence. The Crown referred to the deceased as being tortured and tormented. Mr Stratton cavilled at the word "tortured", but in the extraordinary circumstances of this case I consider it an apt one. For the last ten minutes of his life, when he was already seriously injured, the deceased was subjected to unimaginable torment by Milat. It is virtually impossible to describe the horror of the deceased's circumstances during those last minutes.

107 The submission of counsel for Milat was that "torture" is defined in the Macquarie Dictionary as meaning "the infliction of excruciating pain" and it is commonly understood to mean over a prolonged period.

108 The Macquarie Dictionary also includes "extreme anguish of body or mind; agony" in its definition of torture. There is nothing within the definition that relates to time.

109 In any event, the judge adequately described what she meant. She was clearly aware of the period of time during which the offence was committed. There is no merit in this semantic point.

110 Another general issue raised in support of this ground was the asserted error about the use of a weapon being an aggravating feature. I have dealt with that under ground 4 and rejected it.

(a) Error in finding worst case category

111 The sentencing judge found that "this case clearly falls within the worst category of cases of murder".

112 I have mentioned that it was conceded by counsel for Milat that this was a "very serious example of the offence of murder" and that it was open to the sentencing judge to find that it was planned, premeditated, cruel and brutal. It was accepted that it was aggravated by the presence of another offender. It was conceded that it was "chilling and intentional in its method" and that the death was "horrific".

113 If those descriptions and concessions do not portray a case that falls in the worst category then they portray one that is perilously close to it.

114 The maximum penalty is intended for cases that fall within the worst case category: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. If the judge had imposed the maximum penalty there would be a purpose to be served by detailed analysis of this contention of error. If the maximum penalty had been imposed, and if her Honour was wrong to find "worst case", the sentence would also be wrong.

115 Having said that, I must record that I believe that the judge's finding was open to her. This was a case "of very great heinousness" and there are no "facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)": R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, per Badgery-Parker J, Carruthers and Finlay JJ agreeing). When asked by the Chief Justice at the hearing of the application whether it was accepted to be a crime of very great heinousness, senior counsel for Milat responded in the affirmative (T3.16).

116 The fact that this case does not neatly fit within one of the categories of cases in which life sentences have been imposed in the past is beside the point. The worst case category is not a closed one.

(b) Error in finding "substantial risk of violent re-offending" and "remains a serious danger to the community"

117 After a review of the evidence concerning Milat's personal circumstances, with particular reference to the psychiatric evidence of Dr Furst and Professor Greenberg, her Honour concluded:

[100] Having regard to whole of the evidence relating to this issue, I consider that Milat, with his personality dysfunctions and his lack of empathy, poses at best a substantial risk of violent re-offending. In short, he remains a serious potential danger to the community.

118 Counsel for Milat submitted that "the evidence (particularly that of Professor Greenberg [as summarised in the written submissions]) does not establish a substantial risk of violent re-offending".

119 It was also submitted that the judge gave undue weight to the protection of the community in determining whether to discount Milat's sentence for the utilitarian value of his guilty plea. This relates to her Honour's reference in that context to "the serious danger which he presents to the public".

120 I have earlier referred to the psychiatric evidence which was partially summarised in the remarks on sentence (see above at [25]-[32]). Upon my own review of that evidence a number of observations can be made.

121 It was common ground between Professor Greenberg and Dr Furst that prediction of a risk of future violent reoffending is imprecise and difficult. Professor Greenberg said that from a clinical perspective, "risk prediction is fraught with difficulties". (AB 310) Dr Furst said that "there is a lot of limitations ... involved in making risk assessments, predictions about the future, especially many years ahead of where we are currently, given Mr Milat's youth". (AB 128) This is consistent with the observation of Gleeson CJ in Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 at 589-590 [12]:

No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release.

122 In the light of their acknowledgment of those limitations, Professor Greenberg said:

I am of the opinion that his risk, although difficult to ascertain in the future, is regarded as much higher than the average prisoner charged with a violent offence.

and Dr Furst said:

In my opinion, his risk of future violent offending is moderate.

123 The nature of the index offence was a significant consideration in the formation of these opinions. Dr Furst appears to have understood its features somewhat differently to the way Professor Greenberg understood them. Professor Greenberg described it as a "violent planned homicide", a description consistent with the conclusions of the sentencing judge. Dr Furst considered that Milat's abuse of cannabis and "ice" had a "destabilising effect on his mood and contributed to the level of anger he experienced towards the victim". It was his opinion that Milat "acted in response to the beliefs he held about the victim telling others about his affairs and the anger he felt towards the victim before and during the commission of the offence".

124 Dr Furst had not listened to the recording of the crime. He was asked in cross-examination whether it would affect his opinion if the offence was a thrill-kill to get an adrenalin rush rather than a response to being angry for anything that the victim had done. He replied, "Well, I guess to a degree". He was asked if his opinion might be affected if listening to the recording showed that "it was really a cruel, dominating and controlling offence with the victim being submissive and weeping and begging for mercy". He could not say but allowed that it could have the potential to do so. (AB 130) Of course, those two matters were accepted by the sentencing judge to be features of the offence.

125 Another point of difference between the two experts was that Dr Furst had the advantage of a clinical assessment of Milat. Consent was not forthcoming for Professor Greenberg to interview him. The professor did, however, have the experience of brief meetings with him when he performed psychiatric assessments at a detention centre in December 2010 and June 2011.

126 Dr Furst was able to complete two actuarial instruments designed to assist in the assessment of risk of future violence. Both yielded a result that he was in the moderate risk category. In the twenty-item "Hare Psychopathy Checklist", Dr Furst scored Milat as "2/2" for the following items: glibness/superficial charm; need for stimulation/proneness to boredom; conning/manipulative; shallow affect; callous/lack of empathy; irresponsibility; and failure to accept responsibility for own actions. He scored him as "1/2" for grandiose sense of self-worth; pathological lying; lack of remorse or guilt; poor behavioural control; lack of realistic, long-term goals; and impulsivity.

127 Professor Greenberg was mildly critical about the use of those two instruments in that they were designed for use with adults, whereas Milat was "on the cusp". (AB 98) He said that Dr Furst had gone further than he would have gone himself, but Dr Furst had the advantage of having interviewed Milat. Both were agreed, however, that there were elements of personality dysfunction.

128 Professor Greenberg, however, accepted the actuarial assessments made by Dr Furst but stressed that they were useful for predicting the risk of groups rather than of individuals. He said:

It's a bit like an actuarial score for insurance for driving a motor vehicle. The fact that you're under 25, it puts you into a high risk category. You might in fact be a very good driver with no accidents, but you fall into that category, and what I understand Dr Furst talking about, he falls into that category but that's also a reflection of his youth. If he was 40 he may be in, he may have more history to identify other factors.

What I'm saying is that because of the individual, when you look at the individual and his offending behaviour he is not in the, he is not average as an individual, not as a group, so as an individual he is not average, he's above average.

129 Dr Furst acknowledged that it was "a big limitation" in predicting future dangerousness that the actuarial studies took no account of the nature of the offending in question.

130 It is important to bear in mind that the sentencing judge did not find that Milat will always remain a risk of committing acts of violence. One of the reasons she gave for not imposing a life sentence was "the difficulty in predicting future dangerousness so far into the future". Her finding should be understood as relating to the present and foreseeable future. And it need not have been based solely upon the psychiatric evidence. A sentencing judge is entitled to have regard to the nature and circumstances of the offence in assessing a risk of future violence. As was observed by Gleeson CJ, McInerney and Mathews JJ in R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep).

There are some cases in which the circumstances of an offence on their own suggest the possibility of dangerousness.

131 In the present case, the psychiatric evidence coupled with the sentencing judge's own view of the nature and circumstances of the offence were relevant to her assessment of any danger Milat posed to the public.

132 In assessing the risk of future violence, the judge was not required to make a finding beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. What is involved in the fact finding exercise in this context was described in R v Robinson as follows:

[48] The imprisonment in Veen v The Queen (No 1) was for life, and the offence was manslaughter but by reason of diminished responsibility. What was said about likelihood of reoffending is relevant in the present case, where the imprisonment is for a very long time and the offence is murder. But certainty is not required, as indeed it could not be.

[49] Giving weight in sentencing to protection of society against future reoffending must involve an assessment of both degree of likelihood and gravity of consequences. The likelihood must be a real likelihood, but certainty of reoffending can never be found. In looking to society's protection in determining the sentence the probability of the offender remaining a source of danger to the community and the gravity of the danger as a probability interact. Thus in R v Harrison (1997) 93 A Crim R 314 it was emphasised (at 319) -

" ... that a sentencing judge is not required to be satisfied beyond reasonable doubt that a prisoner will in fact re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown."

133 Ample justification for the finding of the sentencing judge is, in my view, encapsulated in the following summary in the report of Professor Greenberg:

I am of the opinion that Mr Milat's offence to a large degree was borne out of his significant characterlogical or personality problems rather than his use of illicit substances and his perception that the victim provoked his anger. The offence was not an impulsive offence and was planned with his co-accused. His character problems are evident in his admiration of his family's past criminality, his planning of the offence, standing over the victim during the offence and trying to extract [a] confession, lack of empathy to the victim's cries, repeated blows with an axe, gloating about the offence, lack of responsibility and true remorse. I am of the view that his use of cannabis and alcohol at that time period played a minor role in the causation or reason for the offence. His subsequent glib, callous and boastful behaviour about his offence on the Sunday after the offence and later his poems all relate in my opinion to his characterlogical flaws. These flaws are not dissimilar to those often described with psychopathy. His tendency to blame difficulties on external factors, lying, manipulative, poor remorse, shallow emotionality, callousness and criminal versatility are features of psychopathy. I note Dr Kasinathin's impression was that he "has Youth Psychopathy". In my view Mr Milat certainly has some features of this characterlogical 'label' but will require further psychiatric assessment to make such a definitive opinion.

... In my opinion, his risk for future reoffending is largely dependent on him addressing his 'characterlogical' difficulties largely with psychological interventions. After the age of 18 years old, these characteristics are known to become more ingrained and difficult to change with psychological therapy. Therapy may take many years and results are often questionable. (AB 315)

134 In my opinion, it was open to the judge to have found that Milat "remains a serious potential danger to the community". I reject the assertion that she gave "undue weight to the protection of the community".

135 Counsel for Milat advanced a further argument in relation to the future risk of reoffending and that was that the non-parole period should have been shorter. Acknowledging the difficulty of predicting risk so far into the future, the judge should have taken into account that Milat would not be granted parole whilst ever the Parole Authority considered that he presented a danger: s 135 Crimes (Administration of Sentences) Act 1999 (NSW).

136 That submission cannot be accepted. The judge acknowledged the difficulty in predicting future dangerousness in her decision not to impose a life sentence. It is implicit that she took into account that there should be an opportunity for release on parole after Milat had served at least a certain period that was proportionate to the gravity of the crime. She found special circumstances and reduced that period from what it ordinarily would have been. And, during the course of oral submissions, she acknowledged her awareness of parole release being dependent upon an assessment of community safety.

Conclusion

137 A sentence of 43 years and a non-parole period of 30 years is undoubtedly a very stern imposition upon a young man. It is well beyond what has been imposed in almost all other cases of young offenders convicted of murder to which the Court was taken. But it was an adult crime, the gravity of which is difficult to overstate. If Milat was only a few weeks older it would have attracted a mandatory life sentence.

138 Despite his plea of guilty, youth and lack of significant previous convictions, I am not persuaded that the sentence was beyond the range of the discretion available to the sentencing judge.

139 It follows that I would not uphold ground 1.

140 I favour the granting of leave to appeal but such appeal should be dismissed.

Grounds of appeal (Klein)

1 Her Honour erred by reducing the discount given to the applicant for the utilitarian value of his guilty plea.

2 Her Honour erred by failing to expressly identify the discount to which the applicant was entitled, in circumstances where the issue of the disparity between the sentences imposed on the applicant and his co-offender was significant.

3 Her Honour erred in imposing a sentence on the applicant that did not adequately reflect the applicant's significantly lesser role in the offence than his co-offender.

4 The sentence imposed on the applicant was manifestly excessive.

141 It is appropriate to leave consideration of ground 3 until last. Considerations of parity only arise if a sentence is otherwise appropriate: Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 per Howie J at [251].

Ground 1 (Klein) - inadequate discount for guilty plea

142 Her Honour found that the utilitarian value of Klein's guilty plea was reduced by the fact that he had disputed facts in the sentence proceedings:

[123] ... He pleaded guilty to murder in the Local Court. This was the first available opportunity and in his case he is entitled to a discount for the utilitarian value of the plea. The Crown submitted, and I accept, that the utility of the plea has been somewhat diminished by the disputed facts which necessitated the playing in court of traumatic portions of the recording of the murder. In these circumstances I consider that the discount attributable to the plea should be towards the lower end of the range of discounts, which is from 10 to 25 per cent. The sentence I am about to impose has been adjusted accordingly.

143 The disputed facts in the sentence proceedings concerned two aspects. First there was reference in the statement of facts to evidence emanating from a young person, EM, who was present when statements were made by Milat and Klein in the early afternoon of the day of the murder:

[EM] says they met up near the railway. She says: "Mat and Cohen were talking about getting someone. They said: 'We'll get him'".

144 EM was called and in her evidence in chief she gave a different account of the conversation. She said that Milat said "Tonight's the night". Klein replied, "I wouldn't want to know". And sometime later, Milat said "someone had to be finished off".

145 EM's evidence was brief; the transcript of it occupies two and a half pages.

146 The second dispute as to facts concerned the accuracy of the transcript of the recording of the murder. Various passages quoted in the statement of facts were identified, most but not all of them being highlighted for convenience. What was in issue was sometimes identification of the speaker and sometimes the content of what was said.

147 Chase Day, the young man who witnessed the murder, was called and various parts of the recording were played. It was acknowledged that this must have been distressing for everyone in the courtroom, including Mr Day. In three places he corrected the attribution of the speaker from "Milat" to himself. From the perspective of the case concerning Klein, these errors were inconsequential. Other contested speaker attributions were confirmed by him to be correct.

148 Counsel for Klein did not mount a positive alternative case as to the accuracy of the transcription. It is apparent that he was simply unable to accept on behalf of his client that the identified portions were accurate because the recording was often indistinct. The detective who prepared the transcript was called. His evidence was that he had listened to the more indistinct parts many times, perhaps up to a hundred times. He had done his best to prepare an accurate transcript but conceded that he could have made mistakes.

149 The balance of the dispute as to the accuracy of the transcript was resolved by the judge listening to the recording in chambers. The Crown provided headphones as an aid. She later announced her provisional findings. Some brief passages were deleted because she could not hear them and some words were added or changed. None of these were of any real significance. One matter that was of particular significance (the whispered conversation between Milat and Klein at the rear of the car - "can you feel the adrenalin?") was confirmed to be accurate. Counsel for Klein accepted all of this and there was no further dispute.

150 Another significant issue raised by counsel for Klein concerned the basis of his liability for murder. It was contended that he was a party to a joint criminal enterprise with Milat to assault with foresight of the possibility of grievous bodily harm being inflicted. This did not involve any dispute about facts and was dealt with in submissions. The judge, of course, found against Klein and concluded that he was a party to a plan to kill.

151 In R v AB [2011] NSWCCA 229 at [33], Johnson J spoke of the utilitarian value of a plea of guilty not being a fixed element and being capable of erosion as a result of the manner in which the sentence hearing is conducted. Bathurst CJ endorsed this and added:

[3] That is not to say that sentencing courts should not generally continue to follow the approach in R v Borkowski [2009] NSWCCA 102; (2009) A Crim R 1, but merely that the principles have to be applied by reference to the particular circumstances in any case.

152 R v AB was very different to the present case. There the sentence proceedings became quite protracted because of the need to resolve disputed factual matters. Johnson J observed (at [28]) that the time taken was close to that which would have been occupied if the matter had proceeded to trial.

153 In the present case the extent of the dispute, and the time taken to resolve it, was relatively minor. The issue concerning the evidence of EM was potentially important and error was established although it is doubtful that it provided much assistance to Klein in the argument as to liability. In relation to the dispute about some of the transcript passages quoted in the statement of facts, it is important that the dispute did not involve a contention that the passages were wrong; it was more about raising a question about whether they were right. A small number of deletions and amendments were found to be necessary.

154 The dispute about liability is not something that should have counted against Klein in terms of eroding the utilitarian value of his plea. Disputes about liability are not uncommon in sentence proceedings and are normally resolved by way of submissions. That is what occurred here.

155 The Crown submissions in this Court highlighted the significance of the issue: "the basis for liability was a matter of considerable concern and it would have a big impact in the way the sentencing judge approached her sentencing exercise" (T30.32). With respect, I fail to see the relevance of the extent to which the issue was significant when the question is whether there was an erosion of the utilitarian value of the plea. That could occur where there is a protracted dispute about something of only marginal significance.

Conclusion

156 A plea of guilty entered in the Local Court is commonly met with a discount at the top of the range identified in R v Thomson; R v Houlton, namely 25 per cent. The judge regarded the utilitarian value as having been eroded by the manner in which the sentence proceedings were conducted. I respectfully consider that this was a view that was not open to be taken. It was not Klein's fault that his counsel had difficulty hearing everything in a generally poor quality recording. He was vindicated to some extent by raising the issue. He was also vindicated in raising the issue concerning the evidence of EM. And the issue about the basis of Klein's liability for murder did not involve any dispute about the facts. It was confined to a dispute with the Crown that was dealt with by way of submissions.

157 Ground 1 should be upheld.

Ground 2 (Klein) - error in failing to expressly identify the discount for the plea

158 Given what I have just said about ground 1 there is no utility in determining this ground. I would simply record that sentencing judges are encouraged to quantify the extent by which a sentence is reduced on account of the utilitarian value of a plea of guilty "insofar as they believe it appropriate to do so": R v Thomson; R v Houlton at [160] (Spigelman CJ). But this is not compulsory.

159 However, in cases where there are one or more co-offenders, questions of parity and due proportion may arise in the comparison of sentences. In R v Thomson; R v Houlton, Spigelman CJ (at [45]) spoke of the desirability of express reference being made to the weight given to a plea; it being useful, for example, in assessing an issue of parity between co-offenders.

Ground 4 (Klein) - manifest excess

160 It is convenient to restate that Klein received a sentence of 32 years with a non-parole period of 22 years. The judge allowed for a reduction "towards the lower end of the range" for the plea. That must mean it was not at the bottom of the range, 10 per cent. It may be assumed it was probably in the order of 15 per cent. In that case, her Honour must have adopted a starting point for the sentence of about 38 years.

161 None of the findings made by the sentencing judge against Klein were challenged (AWS 47). Her Honour's findings and other matters she took into account included the following:

1. Klein knew when going into the Belanglo Forest that Milat's intention was to murder the deceased.

2. The offence was aggravated because it was planned; it was committed in company; a weapon was used; and there was gratuitous cruelty. The latter was more significant in the case of Milat. The actual level of torment and humiliation was very possibly greater than Klein had anticipated.

3. The offence by Klein was "well within the serious range". His culpability was significantly lower than that of Milat, but still "well within the serious range of culpability".

4. Klein was 18 at the time of the offence and only 19½ at the time of sentence. "This is clearly a relevant matter throughout the sentencing process".

5. Klein was older than Milat but Milat was clearly the dominant personality of the two. Klein was almost certainly an impressionable young man who was strongly influenced by Milat.

6. He had no significant record of convictions; no record of any offence of violence. He was taken to be a person of good character.

7. It was difficult to determine to what extent, if any, Klein was remorseful.

8. Drugs did not play a significant role. They may have clouded his judgment but not enough to markedly reduce his culpability.

9. He had personality defects which contributed to his role in the killing.

10. His prospects of rehabilitation were at least moderate and possibly more favourable.

11. The utilitarian value of the guilty plea warranted a reduction of sentence (see ground 1).

12. The standard non-parole period of 25 years applied but this higher period applying when the victim is under 18 years of age is attributable to the fact that a child is likely to be a defenceless victim. In this case, while technically still a child, the deceased was a fully grown male who was only a year younger than the two offenders. Consequently, the rational for extending the standard non-parole period beyond the normal 20 years is significantly reduced.

13. There were special circumstances to justify a shortening of the non-parole period, namely youth, first time in custody, and the need for lengthy supervision upon release.

162 As can be seen, Klein played a lesser role but his offence was held nonetheless to be "well within the serious range". That finding is not challenged, nor could it be in my view. Milat engaged in a killing for personal enjoyment and Klein assisted and supported him, even to the point of recording it.

163 Subjectively, Klein had little going for him aside from his youth, lack of significant convictions, and moderate or possibly more favourable rehabilitation prospects. The judge was not persuaded that he was remorseful.

164 The sentence had to be assessed against the statutory guideposts of the maximum penalty of imprisonment for life and the standard non-parole period of 25 years. The acceptance by the judge that the latter had reduced significance is doubtful. The statutory provision of a period of 25 years where a victim is under the age of 18 applies to all victims under that age. If the victim is particularly vulnerable, then that would be an aggravating feature: s 21A(2)(l) of the Crimes (Sentencing Procedure) Act.

165 As with Milat, it can be readily acknowledged that imposing such a long sentence upon a man as young as Klein is a very stern outcome. But having regard to the finding as to the seriousness of his offence in the context of the statutory guideposts, the subjective matters, particularly youth, did not mandate that a lesser sentence should have been imposed.

166 I am not persuaded that the sentence is manifestly excessive in the sense that it is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]. Accordingly, I would not uphold this ground.

Ground 3 (Klein) - insufficient disparity

167 It is necessary to move to re-sentencing because ground 1 should be upheld. Accordingly, it is unnecessary to determine this ground. It is open to this Court to form its own view about the extent of the distinction there should have been between the sentence imposed upon the two offenders and to give effect to that in the re-sentencing exercise.

Re-sentence

168 Milat's offence was found to be in the worst case category. Klein's offence was found to be "well within the serious range of culpability" but that culpability was held to have been "significantly lower" than that of Milat. Klein also had a more favourable finding as to his rehabilitation prospects.

169 Milat's sentence of 43 years needs to be compared with the notional starting point for Klein of about 38 years. A starting point of 36 years would have better reflected an appropriate differentiation.

170 An affidavit sworn by the Ms Cheryl Klein, the applicant's mother, was read at the hearing. It simply confirms that she continues to support him.

171 There should be a reduction of the 36 year sentence by 25 per cent to reflect the utilitarian value of the guilty plea, leading to a head sentence of 27 years.

172 It is necessary to reconsider the finding by the sentencing judge of special circumstances and the imposition of a non-parole period that was about 69 per cent of the head sentence. Often this Court adopts a practice of maintaining the same ratio of non-parole period to head sentence that was assessed by a sentencing judge but it should not be regarded as an automatic consequence.

173 A non-parole period is "the minimum period for which the offender must be kept in detention in relation to the offence": s 44(1) of the Crimes (Sentencing Procedure) Act. It is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 140 [57]. It is the minimum time that a court determines justice requires an offender to serve having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623 at 629; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at 717 [57]-[59] (Spigelman CJ).

174 Spigelman CJ added in R v Simpson (at 718 [63]) that "the ultimate constraint" is that the non-parole period must appropriately reflect the criminality involved in the offence. In my view, having regard to the findings of the sentencing judge set out earlier, a non-parole period of no less than 20 years is appropriate in this case notwithstanding it is very close to the usual proportion of the head sentence absent a finding of special circumstances.

Orders

175 I propose the following orders:

Milat:

1. Leave to appeal granted.

2. Appeal dismissed.

Klein:

1. Leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed in the Supreme Court quashed.

4. Sentenced to imprisonment comprising a non-parole period of 20 years and a balance of the term of the sentence of 7 years. The sentence is to date from 22 November 2010. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 21 November 2030. The total term of the sentence will expire on 21 November 2037.

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Decision last updated: 14 March 2014