R v JOHNSON - [2005] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v JOHNSON
Reasons for Ruling of The Honourable Justice Perry
13 January 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
The applicant applied for leave to appeal against a non-parole period of 21 years and 3 months, after allowing for 1 year and 9 months already spent in custody, imposed following his conviction for murder - he killed his de facto wife following a brutal attack upon her - held that the non-parole period was not arguably manifestly excessive - leave refused.

R v JOHNSON
[2005] SASC 1
Criminal

PERRY J. This is an application for leave to appeal against the sentence imposed upon the applicant following his conviction in this Court on a charge of murder.
On 21 June 2004, the applicant was sentenced to life imprisonment with a non-parole period of 23 years to commence on the date upon which he had been taken into custody, that is, on 15 July 2002.
Subsequently, the sentencing judge was informed that on 29 March 2004 in the Magistrates Court sitting at Port Adelaide the applicant had been sentenced for an unrelated offence to imprisonment for 15 months, with a non-parole period of 8 months, the sentence to commence forthwith. That he had been sentenced to imprisonment on that occasion had not been disclosed to this Court when the applicant was sentenced on the murder charge.
Had the fact that the applicant was already serving a term of imprisonment and was subject to an existing non-parole period been disclosed to this Court before the sentence now in question was imposed, rather than fix a new non-parole period, the sentencing judge would have been obliged to extend the existing non-parole period (Criminal Law (Sentencing) Act 1988, s 32).
On 23 August 2004, given the circumstances to which I have referred, the sentencing judge recalled the non-parole period which he had previously set.
He noted that the period between 15 July 2002 when the applicant was taken into custody, until 29 March 2004 when he was sentenced by the magistrate, was a period of 1 year 8 months and 2 weeks.
Giving credit for that period, which he rounded up to 1 year and 9 months he reduced the notional non-parole period to be served with respect to the charge of murder by 1 year and 9 months, that is, to 21 years and 3 months.
He then proceeded to extend the existing non-parole period of 8 months by that amount. This gave a total non-parole period of 21 years and 11 months, commencing on 29 March 2004.
It is with respect to that non-parole period that the present application is brought.
The application was filed on 1 September 2004.
I thought at first that, having regard to the date upon which the applicant was originally sentenced, the application was out of time.
However, given that the effective sentence and non-parole period dates from 23 August 2004, the application is within time.
The applicant appeared on his own behalf on the hearing of the application. On the hearing, he handed up fresh grounds of appeal which he asked to be substituted for those appearing in the notice of appeal.
I will make an order that the fresh grounds be substituted accordingly. They are:
“1.The sentence set for a non-parole period is manifestly excessive.
2.The judge failed to take into account my family situation.”
The applicant is of low intelligence and cannot read or write. A fellow inmate wrote out some written submissions which I received on the hearing of the application. As well, I allowed the applicant to tender a letter from a sister of the applicant. In the letter she spoke of the impact of his incarceration on the applicant’s family, and set out a long account of the trial, the circumstances of the offence and other matters. Apparently, this had been dictated by the applicant.
In view of the fact that the applicant was unrepresented, as well as the fresh material given to me, I have read through all of the relevant material which was before the sentencing judge. This includes the transcript of the submissions then made on the applicant’s behalf by Mrs Marie Shaw QC, the transcript of evidence which had been given on a voir dire hearing before the trial by a psychologist, Dr Jack White, and the sentencing remarks of Justice John Dowsett, then of the Supreme Court of Queensland, on the occasion when the applicant was sentenced in that State on a charge of assault occasioning bodily harm.
The victim of the murder was the applicant’s de facto wife, with whom he had previously been living for some years.
She had last been seen alive on 25 May 2002. Her body was discovered in a creek bed near Virginia on 14 June 2002.
Expert evidence suggested that at the time her body was discovered she had been dead for some days.
The Crown case was that she was killed at some time between 10.00 pm on 25 May 2002 and the early hours of the following morning.
The prosecution alleged that she was violently assaulted while seated in the front passenger seat of a motor vehicle which had been in the applicant’s possession for some time before the night in question. Blood was spattered inside the car consistent with the deceased suffering severe head injuries from multiple blows. It was not clear whether she died in the car or after she had been left in the creek bed.
Before the deceased’s body was discovered, the car, which had been abandoned, was found and taken into police custody.
When interviewed by the police, the applicant denied any involvement in the killing, and said that he did not know what had happened to the car.
The applicant did not give evidence at his trial.
At the time of the offence, the applicant was about 39 years of age. He was 43 years when sentenced.
In his sentencing remarks, the sentencing judge referred to the applicant’s life history, including the violence which the applicant suffered during his upbringing in what was clearly a dysfunctional household, which included some 18 children.
The sentencing judge accepted that from an early age the applicant had taken to alcohol. His relationship with the victim of the murder, and his two earlier relationships, were marked by violence on his part.
In recent years, the applicant began using illicit drugs, more particularly amphetamines.
The applicant has a long list of prior convictions which included a number of convictions for offences of violence, including assault and aggravated assault. There were two convictions for breach of domestic violence orders.
To this day, the applicant has maintained his innocence of the charge. It follows that he was not entitled to any discount which might otherwise have been appropriate, by reference to a plea of guilty or any expression of remorse.
The sentencing judge observed that the applicant’s conduct was a result of what he described as his “controlling attitude towards [the victim]”. He said in his sentencing remarks that the applicant “wanted to control her life”. He described the applicant as “jealous of her friendships with others” and concluded that the applicant’s jealous attitude and possessiveness resulted in her death.
The applicant has four children. It does not appear from the papers that he had custody of any of his children at the time when the murder was committed.
In his submissions in support of the application, the applicant maintained his innocence and drew attention to matters of evidence which he suggested undermined the prosecution case.
Insofar as his submissions were relevant to the question of the appropriateness of the sentence, he emphasised the effect upon his family. But it does not appear that he had much family life at the time of the offending.
In any event, there is nothing to suggest that the sentencing judge failed to give such weight to that aspect of the matter and other matters personal to the applicant, as was appropriate.
In my view, there is nothing in the material which was before the sentencing judge or in his determination of the sentence, to suggest that the sentencing process was tainted by appealable error.
This was a serious crime, properly characterised by the sentencing judge as the culmination of a “vicious, violent and sustained attack” upon the victim.
The extension of the existing non-parole period was well within the limits of a proper exercise of the sentencing discretion.
I give leave to substitute the proposed new grounds of appeal, but I would refuse leave to appeal.