R v LAMBERT, Peter James [2012] NSWSC 94

Supreme Court New South Wales

Medium Neutral Citation: R v LAMBERT, Peter James [2012] NSWSC 94 Hearing dates: 17/10/11 - 21/10/11; 24/10/11 - 31/10/11 03/02/2012 Decision date: 24 February 2012 Jurisdiction: Common Law - Criminal Before: Grove AJ Decision: Sentenced to imprisonment consisting of a non-parole period of 18 years commencing on 24 February 2010 and expiring on 23 February 2028 with a balance term of six years commencing on 24 February 2028. The effective total sentence is imprisonment for 24 years. The earliest date for release to parole is specified as 23 February 2028. Category: Sentence Parties: Regina - Crown Peter James Lambert - Offender Representation: G Tabuteau - Crown C Davenport SC - Offender Solicitor for Public Prosecutions Legal Aid Commission File Number(s): 2010/49484

Judgment 1Peter James Lambert, you stand for sentence after being found guilty by a jury of the murder of Mark Daniel Coughlan. At trial, you denied performing the killing and have maintained that denial. It will be necessary to find facts, not inconsistent with the verdict, for the purpose of imposition of sentence. Observations of your continuing denial of responsibility should not be taken as an expression by me of doubt as to the correctness of the jury verdict. 2While there is considerable evidence, much of it undisputed, about your conduct after Mark Coughlan's death, your motive can only be speculated and there is limited evidence about the circumstances in which the killing occurred. 3The offender and the deceased were acquainted. The latter resided in a housing commission unit in a very large complex situated at Waterloo. In about December 2009, for a rental payment to the deceased, the offender moved in to occupy the second bedroom of the unit. 4Both were users of illicit drugs. The deceased engaged as well in some trafficking, the extent of which I do not determine. 5Mark Coughlan was alive on the evening of Tuesday 16 February 2010 when he was visited by a friend, Michael Maugeri, who left at about 10.30 pm. 6I am satisfied to the necessary standard that during the night, after Michael Maugeri's departure, the offender attacked the victim with a drum kit stand using it to strike multiple blows to his head. The Crown submits that I should find that Mark Coughlan was asleep at the time he was attacked and pointed to the evidence of a conversation while the trial was pending between the offender and a cellmate, Michael Kerr. I am also alert to the fact that when the body was discovered eventually, a sock had been stuffed into the deceased's mouth. I do not disbelieve Mr Kerr and I am conscious of the absence of post-mortem findings suggesting that a struggle had taken place but I am not satisfied that the evidence suffices to establish to the necessary standard that Mark Coughlan was in fact asleep. I am satisfied that, whether asleep, in a doze or otherwise, at the time of infliction of the first of multiple blows with the implement by the offender, the victim was in every practical sense entirely defenceless. 7As Ms Davenport SC for the offender submitted, there is difficulty in assessing a killing which is unexplained. The offender testified to a version of events whereby two unidentified strangers had intruded into the unit, committed the murder and threatened him and his family with retribution if he reported to police. Obviously the jury, as I do also, rejected this version as a fabrication. 8There was evidence of an intention to terminate the arrangement whereby the offender lived in the unit. He asserted that he had, shortly before the killing occurred, for the first time experimented with the ingestion of a drug commonly referred to as ice. Whether there had been an argument about occupation or about anything else or whether the offender's judgment had been impaired by consuming some drug or another, I do not know. 9The established facts are starkly that, armed with a blunt implement, the lethality of which was demonstrated by the fatal event, the offender struck multiple blows to the head of the defenceless victim. 10That multiplicity of blows strongly suggests that the offender harboured an intention to kill and I consider that he very probably did so but I cannot infer the existence of that intention beyond reasonable doubt. However I do find that at the time of striking the blows the offender at least intended to inflict grievous bodily harm to a very high degree. 11Apart from that circumstance, the level of seriousness of the offence finds reflection of scale from the conduct of the offender following the killing. 12On the morning of Wednesday 17 February when, even on his own version, the offender knew that Mark Coughlan was lying dead in the unit, he used the deceased's phone, he took possession of and drove his car and told a friend, Ben Coleman, that the deceased had, as he put it, "shot through". 13Subsequently, the offender busied himself about seeking to conceal what had happened in the unit. He acquired various items from a local supermarket and set about cleaning blood stained walls and carpet. He wrapped the body of the deceased in layers of materials using rope and tape for sealing, ultimately inserting the packaged body into large plastic garbage bags. 14The offender conveyed the body in a shopping trolley from the unit into the deceased's car. On Thursday 18 February he drove the car to the home of his friend Mr Coleman who enquired about the object which he could see in the car. The offender said it was rubbish and asked about the location of a tip. 15That night, the offender drove Mr Coleman to where he was working at Casula. I am satisfied that afterwards the offender drove to Anzac Road Wattle Grove, which is nearby to Casula, and disposed of the body by sending it down an embankment adjacent to that road. 16Shortly after midday on 20 February the deceased's body, wrapped by the offender as I have indicated, was found by passersby who reported to the authorities. 17Clearly investigating police formed a suspicion about the responsibility of the offender for the killing. They obtained CCTV footage of the offender leaving the unit complex wheeling the trolley carrying the body of the deceased. They obtained evidence of the purchase of relevant items from the supermarket by the offender. Their searches located items secreted in a fire hose cupboard in the common area of the unit complex. These included the drum kit stand and a hacksaw. The latter was compatible with a laceration observed at post-mortem which was indicative of an abandoned attempt at dismemberment following death. Surveillance demonstrated the attempt at disposal by the offender of a Fila brand sports bag which belonged to the deceased into a commercial waste dumpster at Hurstville. Within the bag were items including phones belonging to the deceased and hats belonging to the offender. 18In the event, the offender gave evidence at trial admitting that he had used the deceased car and disposed of his body at Wattle Grove but, as I earlier mentioned, he denied that it was he who had killed the deceased. 19The collection of evidence by the investigating police made it impossible for the offender to deny on any rational basis that he had disposed of the body. That outcome was the result of diligent and intelligent investigation and all of those who contributed should be commended and on behalf of the community I would respectfully offer such commendation. 20I should deal with some specific Crown submissions about factors of aggravation referred to in statutory provisions. It is true that the offence involved the actual use of a weapon as which the drum kit stand could be classified. Whilst killing without the use of a weapon can of course be contemplated, in the present case it is virtually an inherent factor in the commission of the offence that there had been administration of blows by the implement. The ordinary meaning of aggravation is to make worse or in this context to elevate into a more serious category of offending. The seriousness of this offence is gauged against killing by striking and it is not realistically elevated because something was used in order to strike. 21The next submission was that the offence was aggravated by being committed in the home of the victim. Again this is literally true but the notion of aggravation for this circumstance is more appropriate to the conduct of an intruder who breaches the security of a victim's home rather than an offence in the domestic context of an offender and a victim residing in the same house. 22It is convenient to note that the offender has a record of conviction for traffic and some relatively less serious drug offences. I would not regard the record of these convictions in assessing the sentence for the offence of murder as being of significance. The record would not deprive the offender of any mitigation to which he might otherwise show entitlement. 23I turn to some subjective factors concerning the offender. At the time of commission of the crime he was aged 29 and he has just turned 31. 24The history recorded by Mr Machlin, a psychologist, details a disruptive childhood. The offender was born in Australia and when he was about four or five his mother left and his father formed a new relationship and moved to Manchester UK where children brought to the relationship, including the offender, and others born to the relationship became a combined total of 10 children. The offender was sent to a government boarding school from the age of seven until he turned 12. He then came back to Australia and attended High School for two years and went back to the United Kingdom for four years to complete High School. 25Eventually at age 18 he settled in Australia permanently where he has since mainly resided in shared accommodation with friends. He worked as a factory hand and storeman but had been unemployed for a year prior to his arrest. 26There has been infrequent contact with his family although his father has also returned to live in Sydney. For about a year he lived with one of his brothers. That brother is reported to have had a drug problem and be on a methadone program. The offender claimed that he had had two long-term relationships with females but had only casual encounters and an "on and off" relationship over the three years prior to his arrest. 27He told the psychologist that he had a history of habitual cannabis use but did not feel that it adversely affected his health and that he had tried but not continued with "all sorts of drugs". He also said that he sometimes used pills, he did not specify their nature, on special occasions. 28While it has been useful to glean history from Mr Machlin's report including confirmatory material from the offender's father which I do not need to recapitulate, it candidly notes the diagnostic vagueness of the material. The tests do not establish personality disorder. The drug history information is not sufficient to posit substance abuse disorder. Reaction to the offender's current state, that is facing sentence, is said to be unlikely to meet the criteria for depression or other mental health disorder. 29Mr Machlin reported at length on risk analysis, pointing out that he was using a guide called HCR 20 which is not a psychometric test but a scheme of assessment. Some factors could not be assessed because of limited information. Given the numerous gaps in relevant information as detailed by Mr Machlin I have to treat with some reserve the categorisation of the offender as being a person with a high risk of violence. Before such can affect the offender adversely I am required to be satisfied to the prescribed standard and this is not possible. I note Mr Machlin's comment about therapeutic opportunity within the correction system but for the reason given the sentence will not be increased because of the hypothesis of high risk factor. 30Such considerations are germane to an assessment of the prospects of rehabilitation of the offender. His denial of responsibility negative any suggestion that he is remorseful or contrite. Acknowledgement of guilt is an initial step towards any rehabilitation and I cannot make any prediction as to the prospects of this offender in that regard. 31A victim impact statement was read in court on behalf of the father of the deceased. I acknowledge its receipt and note the matters recited by Mr Coughlan Senior as affecting him as a consequence of the murder of his son. The reading of that statement serves as a reminder of the grief and anguish that is suffered by others when such a crime is committed. The law does not permit the inflation of sentence on account of the personal characteristics and qualities of the victim but it is appropriate to make this acknowledgement of the matters of impact which have been detailed. 32I have already commented on the seriousness of this particular offence in that it involved a vicious attack by multiple blows by an instrument upon a helpless victim. The criminality involved is of a very high order. In making that finding I bear in mind my earlier finding concerning the offender's intent. 33In making an assessment of sentence I have guides available from the statutory prescription of the maximum penalty of life imprisonment and a standard non-parole period of 20 years, both of which I have taken into account. 34Both the Crown Prosecutor and Senior Counsel for the offender presented some sentencing statistics as collected by the Judicial Commission. One collection referrable to total terms prior to the applicability of legislated standard non-parole period surveyed 61 cases, 50 of which resulted in impositions of 24 years or less and 11 resulted in longer terms. Another collection surveyed a 113 cases of which 85 resulted in terms of 24 years or less and 28 in longer terms. I am, of course, conscious of the limited utility of such statistics but they provide a resource for observation as to whether a sentence assessment is contrary to apparent existing sentencing patterns. 35An express submission was made that I should vary the proportion of non-parole period to balance term in favour of the offender by reason of special circumstances. I do not determine the existence of special circumstances. In any event, given the length of sentence in total, application of the statutory formula will result in ample time for the offender to be supervised and to be subject of parole conditions. 36The offender has been in continuing custody in respect of this crime since 24 February 2010 and sentence will date from then. 37Peter James Lambert, for the murder of Mark Daniel Coughlan you are sentenced to imprisonment consisting of a non-parole period of 18 years commencing on 24 February 2010 and expiring on 23 February 2028 with a balance term of six years commencing on 24 February 2028. 38The effective total sentence is imprisonment for 24 years. 39The earliest date for your release to parole is specified as 23 February 2028.