R v Johnson

[2015] NSWSC 31

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Johnson [2015] NSWSC 31
Hearing dates:	4 February 2015
Date of orders:	05 February 2015
Decision date:	05 February 2015
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Sentenced to a non-parole period of 15 years and 9 months commencing on 12 March 2013 and expiring on 11 December 2028. There will be a balance of term of 5 years and 3 months which will expire on 11 March 2034. Eligible for release to parole at the expiration of the non-parole period.
Catchwords:	CRIMINAL LAW – SENTENCE – murder – repeated offences of domestic violence – no intention to kill –no premeditation – brutal assault – Form 1 matter – deterrence – moral culpability and early exposure to alcohol drugs and violence
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Apps v The Queen [2006] NSWCCA 290 Attorney General’s Application No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Badans v R [2012] NSWCCA 97 Bellchambers v R [2008] NSWCCA 235 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 Hili v The Queen; Jones v The Queen [2010] HCA 45; Markarian v the Queen [2005] HCA 25; 228 CLR 357 Melbom v R [2013] NSWCCA 210 Montero v R [2013] NSWCCA 214 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Barbetta [2008] NSWSC 688 R v Bolt [2013] NSWSC 895 R v Booth [2014] NSWCCA 156 R v Comert [2004] NSWCCA 125 R v Edwards [2009] NSWSC 164 R v Halloun [2014] NSWSC 1705 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v Hines (No. 3) [2014] NSWSC 1273 R v Kennedy [2013] NSWSC 1940 Stewart v R [2012] NSWCCA 183 Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 Versluys v R [2014] NSWCCA 98 Williams v R [2012] NSWCCA 172 Yang v R [2012] NSWCCA 49
Category:	Sentence
Parties:	Crown Dale Ryan Johnson (Offender)
Representation:	Counsel: T Thorpe (Crown) E Wilson SC (Offender) Solicitors: DPP (Crown) Aboriginal Legal Service (Offender)
File Number(s):	2013/75751
Publication restriction:	Nil

remarks on sentence

1. Dale Ryan Johnson is to be sentenced on his plea of guilty to the murder of Cheree Anne Lawson at Coomealla near Dareton on 12 March 2013.

2. In sentencing him, I will take into account a further offence of assault occasioning actual bodily harm on the same victim. The fact that there is a further domestic violence offence to be taken into account increases the weight to be given to both personal deterrence and retribution: see Attorney General’s Application No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42]

Plea of guilty

3. The offender pleaded guilty on 8 August 2014 in the arraignment list in the Supreme Court. He had offered to plead guilty to manslaughter while the matter was still before the Local Court but that offer was (properly) rejected by the Crown.

4. I am told (and accept) that the matter was never listed for trial and the accused indicated by his early offer to plead guilty to manslaughter that there would be no contest that he was criminally responsible for the death of Ms Lawson. No witnesses were called at the committal hearing and an application for an adjournment in the Local Court was refused. The purpose of the adjournment application was to determine some outstanding issues that may have borne upon a consideration of a defence of substantial impairment which arose from the report of a psychiatrist (Dr Furst). I accept from senior counsel (who unsuccessfully sought the adjournment before the learned Magistrate) that, had that matter been properly considered at that stage, the plea may have been entered prior to committal.

5. The Crown has indicated that the offender is entitled to a discount or reduction in his sentence of “between 15-18%”. In the exercise of discretion, I propose to reduce the sentence by just slightly less than 20% to reflect the utilitarian value of the plea. In reaching that discretionary judgment, I have taken into account:

• The early offer to plead guilty to manslaughter;

• The limited amount of court time that has been expended both in the Local Court and this Court;

• The fact that the case was never listed for trial; and

• The likely length of the trial and complexity of the issues, particularly the medical evidence as it bore upon the issue of intention.

Controversies between the parties

6. While the facts are agreed, there remain a number of controversies between the offender and the prosecution.

7. One of those concerns the intention of the offender – that is, did he act with an intention to kill or with an intention to inflict grievous bodily harm. The second is whether the offender should be sentenced on the basis of a loss of self-control or whether any such loss of control is a mitigating feature. The third is the relevance of evidence that the offender was exposed at an early age to alcohol-fuelled violence within his family. Finally, the parties disagree about the proper categorisation of the objective seriousness of this offence and whether, for the purpose of s 54A Crimes (Sentencing Procedure) Act 1999 (NSW), it falls within the middle-range of objective seriousness of all offences contemplated by the crime of murder.

8. To understand my resolution of those disputes, it is necessary to recount the awful factual circumstances that led to the death of Cheree Lawson. As I have said, these facts are agreed.

9. The offender and the deceased had been involved in a relationship for about six months. There had been violence within the relationship and a number of witnesses told police that the offender was jealous of the relationship between Cheree and her former partner (Cale Wallace). On 16 February 2013 the offender committed the offence on the Form 1. This involved hitting the deceased with a brick and seemed to arise as a result of him wanting money for drugs. I now recount the events of the night as agreed between the parties:

“16. The deceased had not maintained contact with Cale Wallace during February 2013 but in early March she made contact with him. On the 9th or 10th of March 2013 the deceased told Tanya Taylor that she intended to leave the accused and go to Bendigo with her children and Cale Wallace but not to tell anyone as it was a secret. There is no evidence that the offender ever became aware of this.

17. During Monday the 11th of March 2013 the offender and his mother were at the home of his uncle Brian Carter in Namatjira Avenue where they were drinking.

18. At about 6.40pm the deceased made some purchases at Dareton Mini Mart, drew out $40 cash and then travelled with Cale Wallace and her children to Buronga where the children were dropped off. She and Mr Wallace were dropped off in Mildura by a friend.

19. At 7.16pm she drew $570 from her account with Bendigo bank and at 8.43pm she purchased 2 bottles of Bundaberg rum, four bottles of small Smirnoff vodka & lemonade and some coke. She and Mr Wallace travelled to Dareton by taxi where they were at her grandmother’s place until Mr Wallace went home as he had to work the next day.

20. At 9.30pm the offender left the house of Brian Carter carrying a flagon of port which had been partly drunk. He called in at the home [of] his brother Roger Carter and said he was going to look for some mates.

21. At about 10pm the deceased turned up at the house of Lucy Harris in Neilpo Street in Dareton with the alcohol and some drinking took place.

22. At 11pm Isaiah Johnson was at home at No 36 Silver City Hwy Dareton with his cousin Zac Johnson & the offender who was drinking a flagon of tawny port. They left the house and were seen in a park in Dareton by Jason Smith, Jason Harris, Tony Harris and Gus Williams. The offender and the others spoke with these boys for 10 minutes and they walked off. Isaiah Johnson told police that the accused said to him at this time in relation to Cheree Lawson, “If I catch her with any boy I’m gonna smash her up and the boy.”

23. Between midnight and 12.20am on the 12th of March a taxi driver drove the deceased and 2 other girls to the home of the deceased at Namatjira Avenue and returned for the four boys Jason Smith, Jason Harris, Tony Harris and Gus Williams. Isaiah Johnson was also present at the house. Music was played loudly from a mobile phone set up through a stereo and was heard by neighbours from about 1am. The deceased drank alcohol and danced.

24. A female at the party was told by the deceased that she might go and look for the offender. The offender’s mother says that the deceased came to her house looking for the offender and then left.

25. The offender arrived at her house sometime around 2am and remained in the premises. He was described because of his demeanour as being intoxicated and affected by drugs.

26. A disagreement took place between the offender and the deceased over the music that was playing. The offender was seen to pull the wires out from the stereo. The owner of the stereo became upset with him. He apologised and tried to put the wires back together promising to pay for it.

27. The deceased who was described as legless went outside where she was seen to vomit by one of the women present. The offender took hold of her bag and they left the house and walked a short distance to the home of Raylene Carter the mother of the accused arriving sometime around 3am.

The Offence

28. Ms Carter remembered the time as she was watching a television programme, “Charms” which aired 3.00am-4.00am. Raylene Carter said the two of them were arguing when they arrived. She described the offender as being angry and the deceased being calm and trying to keep the offender calm. Ms Carter said the offender and the deceased were in the kitchen “rowing for a while”.

29. They went into the bedroom where she heard arguing and loud banging noises and what to her sounded to her like 5-6 punches. She heard the deceased say “stop hitting me” and she called through the door for him to stop. He told her to shut up or she would be next.

30. The offender came out of the bedroom at one point and then went back inside. Ms Carter dozed off and was later woken by the offender.

31. He came out of the bedroom crying saying “Help me Help me I think I killed her.” Ms CARTER saw the deceased on the bed in the bedroom. She saw the offender shake the victim to try to get her to move. The offender tried mouth to mouth and at this time Ms Carter ran to Lisa Johnson’s house nearby to get help.

32. During the assault a male resident nearby in Namatjira Avenue heard screams coming from Raelene Carter’s house. The screams would start and stop and this went on for 30 minutes.

33. Lisa Johnson called 000 at 4.45am. The ambulance and one police officer arrived at about 5.17am and the deceased was found to be dead at 5.24am.It appears that the offender had placed the deceased on a mattress in the lounge room and combed out her hair. The offender was seen by a number of persons after he left the house and when questioned about what he had done to the deceased indicated that he was going to kill himself.

34. The offender went nearby to the house of John Mitchell his second cousin. Mr Mitchell heard the offender saying “help me help me”. He spoke to the offender who was crying. They sat on a couch at the front. The offender said, “I think I might have killed her.” When asked “who?” the offender said “Cheree”. Mr Mitchell said he hoped he was joking and the offender said, “I think I did.” At this time the police and ambulance could be seen at the house. Mr Mitchell slapped Dale and he left.

35. The offender and Mr Mitchell have been close all their lives because the offender’s father, Glen Johnson and John Mitchell’s father John Handy are first cousins and John Handy often looked after Glen Johnson’s children. John Mitchell was of the opinion because of previous conversations he had had with him, that the offender was jealous of the deceased.

36. The offender went to the house of his brother Roger Carter at 6am and called out to him. Roger Carter went to the door and saw the accused was crying & upset. The offender said, “I think I killed her.” Roger Carter said, “Are you sure? She maybe just knocked out?” The offender said, “na na Rog. I killed her. I tried to revive her but she wasn’t breathing.” Roger Carter said, “Cheree?” He said, “Yeah bud Cheree.” He was crying and said he wanted to kill himself. They discussed ringing their father. Mr Carter assessed the offender as appearing to be drunk. The offender went to a room to lie down and went to sleep.

37. The offender was arrested at the home of his brother Roger Carter at about 9am on 12 March 2013. He made no admissions to police but was seen to be crying when the allegation was put to him and he was cautioned.”

10. The accused has been in custody solely in relation to this matter since 12 March 2013 and the sentence that I impose will commence on that date.

11. In relation to the cause of death, the agreed statement of facts continues:

“38. The cause of death was given by the pathologist Dr Brian Beer as multiple applications of blunt force trauma to the chest and head. The deceased had multiple injuries such as would occur during a sustained assault. The most extensive injuries were to the chest.

39. Given the injury occasioned by the brick on 16 February 2013 and the potential for “life saving measures” being administered by the accused on 12 March 2013, supplementary reports were provided by Dr Beer and Prof Buckland the Neuropathologist. Dr Beer ruled out any injuries as being caused by “CPR” and Professor Buckland eliminated the injury occasioned on 16 February 2013 as contributing to the victim’s death on 12 March 2013.

40. Dr Beer described in relation to the deceased extensive bilateral, anterior, lateral and posterior rib fractures with right and left pleural haemorrhage. These injuries were sufficient to compromise breathing and lead to death. The left posterior 8th, 9th& 10th ribs were fractured with a second posterior lateral fracture of the 10th rib. There were fractures of the left anterior ribs 1 to 9 with ribs 4 and 5 showing a second fracture. The right 3rd rib had posterior and lateral fractures, the right 4thrib a posterior medial fracture, the right 5th to 9th ribs showed posterior fractures with the 5th, 7th 8th and 9thribs also showing lateral fractures. There were anterior fractures to the right 4th, 5th and 6th ribs.

41. In his additional report, Dr Beer said that the injuries observed to the ribs and tissues indicated “that there had been multiple applications of significant blunt force trauma to all zones of the chest.” Dr Beer in his additional report comments in relation to the head injuries that there was evidence of acute significant blunt force trauma.

42. There was a range of blunt force traumas on the head. There was extensive bruising to the face and skull but no fractures. Professor Buckland observed multifocal thin subarachnoid haemorrhages indicative of brain trauma. There was no overt macroscopic cerebral contusion or overt bleeding into the brain. Professor Buckland in his additional report also says that traces of subarachnoid blood indicates significant blunt force trauma to the brain. This was greater on the right side then the left.

43. In addition the following injuries were recorded by Dr Beer which did not contribute to the death of the deceased:

- There was bruising to the back of the arms, front of the legs and back consistent with defensive injuries.

- There were circumferential bruises to the wrist consistent with being held.

- A fracture of the right ulna and radius almost at the level of the right wrist.

- Multiple superficial incised wounds to the face, right arm and lower back indicating a sharp instrument may have been used.”

12. The Crown also points to the following parts of the post mortem reports:

“3. The head showed a range of injuries consistent with sustained applications of blunt force trauma. There was extensive bruising to the face and scalp, but no skull or facial fractures were identified. There was multifocal thin subarachnoid haemorrhage indicative of brain trauma, but no macroscopic cerebral contusion or overt bleeding into the brain.

4. There was bruising to the back of the arms, front of the legs and back compatible with defensive injuries.

5. There were circumferential bruises to the wrists compatible with restraint injuries.

…

7. … [T]here were multiple superficial incised wounds to the back, right arm face and neck consistent with ante-mortem injuries indicating that a knife or other sharp implement had also been used during the assault. All of these wounds were superficial and did not contribute to the cause of death.”

13. There are also a series of photographs which depict the many physical injuries that Cheree was subjected to in the period before she died.

14. The deceased had a significantly raised blood alcohol reading of 0.186g/100ml blood. The pathologist said that there is a “well recognized risk of sudden death with the association of a high blood alcohol and blows to the head where it is thought that alcohol significantly potentiates the concussive effect of post-traumatic apnoea”.

Intention to kill or inflict grievous bodily harm

15. As terrible as these facts and injuries are, I am not persuaded beyond a reasonable doubt that the offender intended to cause the death of Cheree Lawson. While the assault, or series of assaults, was sustained and brutal, the physical acts themselves do not establish an intention to kill.

16. Repeatedly punching, kicking and restraining a person may often result in serious injury but it is not inevitable, or indeed very common, that it results in death. The role that the blood alcohol concentration may have played in Cheree’s sudden death may be well recognized in medical circles but it is not a matter of general knowledge and would not have been known to the offender.

17. In terms of the acts of an offender giving rise to an inference of an intention to kill, the matter can be contrasted with a case where the offender shoots the victim or strangles or chokes the victim or uses a knife to slit the victim’s throat.

18. Further, nothing in what the offender said at the time of the assault or in its aftermath suggests that he intended to kill Cheree Lawson. His interactions with Raylene Carter, John Mitchell and Roger Carter shortly after the fateful events suggest that he did not intend to kill the victim. That evidence is far from conclusive but it does not bespeak an intention to kill.

19. Further, as Mr Wilson SC submitted, the injuries and investigation of the scene shows that there was at least one knife available to the offender and he did not use it in such a way as to evidence an intention to kill Cheree.

20. Finally, the offender’s action of “trying to revive” Cheree (Lawson) is not consistent with an intention to kill. Again, the fact that he tried to revive her does not, of itself, negative an inference of an intention to kill a short time earlier. However, the attempt to revive is not consistent with such an intention.

21. There being no direct evidence of an intention to kill, it is necessary to employ circumstantial reasoning. The Crown says the actions of the offender give rise to an inference - and “are eloquent of” - an intention to kill. I note the caution that must be exercised in drawing an inference from such evidence particularly when the offender is drunk: see, for example, R vBellchambers [2008] NSWCCA 235 at [36]-[37] per Allsop J.

22. It is necessary for the prosecution to exclude the possibility that the intention of the offender was to inflict grievous bodily harm. My conclusion is that the evidence does not exclude that possibility. The injuries and actions of the accused are equally eloquent of an intention to inflict serious injury.

23. Accordingly, the offender will be sentenced on the basis that he intended to inflict grievous bodily harm upon Cheree but not that he intended to cause her death.

15. There is ample authority that murders involving an intention to kill are generally more serious than those involving an intention to inflict grievous bodily harm, although that proposition is not universally true. It all depends on the facts and circumstances of the case. See, for example, R v Hearne [2001] NSWCCA 37; 124 A Crim R 451

16. at [34], Apps v The Queen [2006] NSWCCA 290 at [49] (Simpson J) and Versluys v R [2014] NSWCCA 98 at [21].

Loss of self-control

26. Mr Wilson SC submitted that the accused lost self-control and that this offence was committed in the heat of the moment as a result of some disagreement between the victim and the offender. The agreed facts suggest that both parties were affected by alcohol and that the offender was motivated by jealousy and that he was suspicious of Ms Lawson’s relationship with her former partner, who was the father of her 3 children.

27. While I accept that the offender was out of control and in a rage at the time he killed Ms Lawson, I do not accept that this was in any sense a momentary loss of control as is sometimes seen in other cases.

28. I do not accept that the fact that the accused was in a violent rage, most likely brought on by a combination of alcohol and jealousy, mitigates the objective criminality of the offence. On the contrary. This was a sustained assault that occurred over a period of around, or at least, half an hour. In the course of the assault, the victim asked the offender to “stop hitting me” and the offender’s mother tried to intervene. She was told to shut up or she’d be next.

Assessment of objective seriousness

29. As I have said, the parties disagree as to the proper categorisation of the objective seriousness of the offence. The Crown submits that the offence falls “slightly above the mid-range of objective seriousness”. Mr Wilson SC submits that the offence falls below the mid-range of objective seriousness.

30. These submissions are made in the context of a statutory standard non-parole period of 20 years. That period of 20 years applies to a case where the offence falls within the putative mid-range of objective seriousness and after trial where there is no discount for a plea of guilty. Obviously that is not this case because the offender will receive a reduction for his plea of guilty.

31. It remains important for a sentencing judge to make a reasoned assessment of the objective criminality involved in the case. Whether it is necessary or useful to do so in terms of labels such as “mid-range”, “low-range” and “high-range” is questionable but, in deference to the submissions of two experienced counsel, I propose to adopt such language.

32. It is certainly not the case that the fact that a particular offence of murder does not involve an intention to kill means that it will necessarily fall below the middle range of objective seriousness: see, for example, Versluys v R [2008] NSWCCA 76 at [32].

33. Factors bearing upon the assessment of the objective criminality here are the sustained and brutal nature of the attack and the fact that it was part of an ongoing abusive domestic relationship. The attack was on a defenceless victim who was well affected by alcohol. It was in the context of a domestic relationship marked by violence.

34. Further, the victim was in the home of the offender’s mother, a place where she was entitled to feel safe. It is conceded by senior counsel that this is an aggravating feature pursuant to the provision in s 21A(2)(eb). In light of that concession it is unnecessary to dwell on the conflict (or nuanced controversy) in the authorities on that subject: contrast for example the approach in R v Comert [2004] NSWCCA 125 with Melbom v R [2013] NSWCCA 210 and Montero v R [2013] NSWCCA 214; and see the analysis by Bellew J in R v Kennedy [2013] NSWSC 1940 at [44]-[50].

35. All of the matters to which I have made reference are matters demonstrating that this was an offence of real objective seriousness.

36. On the other hand, it is properly conceded by the Crown that the offence was not premeditated. It was not part of a planned or organised criminal activity and did not involve the use of a weapon. Further, as I have found, the offence did not involve an intention to kill and there was an attempt by the offender to revive the victim.

37. While the absence of planning and premeditation is a mitigating feature, its significance is somewhat reduced in circumstances where the offender had assaulted the deceased in the weeks leading up to the murder and had made threats towards her: see Versluys v R [2014] NSWCCA 98 at [20].

38. There was some controversy over the question of whether the offender was, or was not, on conditional liberty at the time of the offence: see exhibit B. Initially, the Crown accepted that the offender was not on conditional liberty. After Mr Wilson had concluded his oral submissions, the Crown tendered exhibit B setting out the events that followed the incident that occurred on 18 November 2012. The offender was on bail until 6 February 2013 on which date neither he nor the deceased attended Court. As I understand it, the prosecution then obtained the Victorian equivalent of an apprehended violence order and the offender’s bail came to an end. At the date of the current offence (12 March 2013) the order had not been served on the offender. Accordingly, the Crown concedes that “technically” the offender was not on conditional liberty at the time. For this reason, the aggravating feature in s 21A(2)(j) does not apply but both counsel agree that the true relevance of this material is the fact that it establishes a history of domestic violence. This, along with the offence on the Form 1, results in greater weight being afforded to personal deterrence and to retribution.

39. Contrary to the submission of Mr Wilson SC, in assessing the objective gravity of the offence, I have not taken into account a body of evidence concerning the offender’s early exposure to alcohol induced domestic violence and the extent to which that impacts upon his moral culpability. I accept that there is some conflict of authority as to this matter (as to which see, for example, Yang v R [2012] NSWCCA 49, Badans v R [2012] NSWCCA 97, Williams v R [2012] NSWCCA 172; Stewart v R [2012] NSWCCA 183.)

40. However, in my view, the High Court made clear in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 that “meaningful content cannot be given to [the concept of objective seriousness] by taking into account characteristics of the offender.” The High Court concluded at [27]:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

41. I accept that there may be some exceptions to that proposition and that the dividing line between the objective features bearing upon the seriousness of an offence and the subjective features of an offender is not always a clear and bright one. However, in my view, the exposure of this offender to alcohol and violence at a young age cannot properly be categorized as a matter bearing upon a principled assessment of the objective seriousness of his offence. On the other hand, if that evidence is accepted, it may bear upon his moral culpability and a determination of the appropriate sentence to be imposed.

42. As I said in argument, this point is unlikely to make any practical difference to the outcome. If the evidence is accepted, and if I determine that the offender’s moral culpability is reduced as a result, that finding will sound in the sentencing outcome however it is pigeon-holed in these remarks. That observation accords with what Price J said in Williams v R [2012] NSWCCA 172 at [43]. It also found favour with both of the experienced counsel who appear in these proceedings.

43. Taking into account all relevant matters, in my assessment, the offence falls within the mid-range of objective seriousness.

44. For the sake of transparency, I record that if I am wrong in my approach to the offender’s early exposure to alcohol and violence, I would have accepted Mr Wilson’s submission that the offence falls below the mid-range although not by very much.

The suffering of Cheree’s family and friends

45. I have received moving statements from the victim’s mother (Raylene Lawson) and her sister (Janice Rose). These were read to the Court by Ms Quayle and Ms Taylor. Once again, I say thank you to the authors of those statements for sharing your pain and your grief and to the brave women who read them to the Court.

46. Cheree was greatly loved in the community and this is shown by the large number of people who have travelled the 300 km from Dareton and Mildura to keep vigil at this sentencing hearing.

47. Cheree was one of nine children and she was very close to her sisters. If her life was not cut short by the violent actions of the offender, she would now be just 26 years old.

48. She was “charming, beautiful, intelligent and loving”. She was honest. She was a loving, and much loved, aunty.

49. She also had three children of her own (T, J and J). These children are all still less than 10 years old. Her mother, Raylene, has now undertaken their care and she cannot express her relentless and constant grief because she does not want to upset the three little ones.

50. Both Raylene and Janice feel hopeless and helpless in the face of their loss. Neither can see a day when they will not think of Cheree; miss her; mourn for her.

51. Many other people in the court-room have no doubt felt this loss, this helplessness. The court room is full of a great sadness and anger.

52. This is the impact of this senseless, brutal killing on the immediate family and friends of poor Cheree.

53. To Raylene and to Janice and to all of you gathered here to seek justice for Cheree:

• I know that I can say nothing to reduce your pain.

• I know that nothing that I do, in sentencing the offender, will bring Cheree back.

• I know that no sentence that I impose will seem enough. How can it? As Raylene said, as read by Mrs Nola Taylor, the family has been sentenced to a lifetime of grief.

54. The law now allows the suffering of a victim’s family and friends to be taken into account if it amounts to what the law describes as “an aspect of the harm done to the community”. I have discussed this new law in sentencing the man of Hines last year in this Court: see Hines (No. 3) [2014] NSWSC 1273 at [77]-[85]. There is no need further to discuss the subtleties of that law today. It would not do Cheree’s family any good.

55. I accept that the impact on Cheree’s family is an aspect of harm done to the community. As Howie J said in Barbetta [2008] NSWSC 688 at [18], as I inferred last year in Hines (at [84]) and as McCallum J said in Halloun [2014] NSWSC 1705, this is probably true in all cases of homicide.

56. On the prosecutor’s application and on the concession by the offender, I will take the statements of Janice Rose and Raylene Lawson into account “in connection with the determination of the punishment for the offence” under s 28(4) of the Crimes (Sentencing Procedure) Act (1999) NSW. In doing so, I adopt the sound and sensitive approach articulated by McCallum J in Halloun at [45]-[46] noting that this approach serves the purposes of sentencing in s 3A of the Act.

Deterrence and domestic violence

57. Cases of domestic violence are too frequent in the community. It is a matter of some notoriety that domestic violence is prevalent within Aboriginal communities. I cannot speak more eloquently of this than did Cheree herself. Her mother told me this:

“Cheree was against domestic violence. These are Cheree’s sad, true words from strong, young, [Aboriginal] woman so against domestic violence.

‘It’s sad how some Aboriginal men hit their women and think everything’s going to be ok.

WELL IT’S NOT OK!

We are the ones who feel all the pain and get put in hospital! Cry and feel down about ourselves, you think it’s ok to say “shut up” or get a broken jaw or whatever, come on its why most men get left alone. Then you wish you had never done what you done in the first place. I have seen this happen all my life and now it’s happening to me, well I am done with being scared all the time, so now I am moving on and don’t ever want to go back to that again.’”

58. The evidence shows that the killing of Cheree was the last of three serious assaults committed by this offender upon her.

59. On 18 November 2012 the offender assaulted the victim in a most serious way. Her statement to the police on 18 November 2012 described that assault as follows:

“I was walking down Hunter St, Mildura, and Dale JOHNSON came out of some flats where Neil JOHNSON lives. My brothers and sister kept going and Dale dragged me inside his cousin’s flat. He started bashing me and I just curled up. I don’t think anyone else was there. He got an empty bottle of Jim Beam and hit me everywhere with it. He chocked me until I fell asleep. When I woke he was gone so I went to the phone box. I was putting my hands over my face and ears when it happened. It was in the bedroom. He hit me with the bottle to my arms, legs, head. He bit my back and he was chocking me and punching me in the face.

At the moment my body hurts everywhere and I’m scared he’ll go to my mums house. He was drunk and probably on drugs when he did this.

When I tried to leave the house he kept shoving me down. I thought I was going to die. He didn’t have permission to take me into the house or to hurt me.”

60. Then, on 16 February 2013, the offender committed the offence on the Form 1. The facts of that offence (set out in paragraph 6 and following of the statement of facts) included striking Cheree with a brick causing her to black out. This caused the injuries to her depicted in the photographs which are document 8 of exhibit A.

61. The sentence that I impose must reflect the need to send a message to people within the Aboriginal and wider community that our society cannot, and will not, tolerate domestic violence. When death is the result, the courts must impose lengthy gaol sentences on offenders. As the Crown has submitted, it is not enough to pay lip service to the principle of general deterrence. That principle must be reflected in the sentence that is actually imposed.

62. Further, this offender has a history of domestic violence both against Cheree and also against an earlier domestic partner. For this reason, the sentence must also send a clear message to him that his behaviour will not be tolerated by society in general and by the Aboriginal community of Dareton and Mildura. I accept the Crown’s submission that the matter on the Form 1 and the offender’s history of domestic violence mean that significant weight must be given to the principle of personal or specific deterrence.

The offender’s personal circumstances and other mitigating features

63. The offender is an Aboriginal man. He was 25 years old when he committed the offence and is now 27.

64. He has a criminal record which disentitles him to the leniency afforded to a first offender but which is not such as to aggravate the offence or to result in a sentence disproportionate to the circumstances of the offence itself: cf Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465; R v Hines (No 3) [2014] NSWSC 1273 at [86]-[97].

65. His actions immediately after the offence suggest that he immediately accepted responsibility for his actions and acknowledged the harm that he had done. Those actions included:

• Attempting to revive the deceased.

• Admitting that he had killed her to several people.

• Crying as he described his conduct.

• Saying that he wanted to take his own life.

• Crying when the allegation was put to him by police.

66. I will take this evidence of remorse into account under s 21A(3)(i) but note that, in the context of this case and in circumstances where his prospects of rehabilitation are speculative, it is not a matter of significant weight compared with other relevant factors and purposes of sentencing.

67. I accept the submissions of both counsel that the offender’s prospects of rehabilitation are not known. The repeated offences of domestic violence make it impossible to conclude that he has good prospects of rehabilitation or that he is unlikely to offend again (cf s 21A(3)(g) and (h)).

68. I have considered two reports, one by a psychologist (Dr Howard) and one by a psychiatrist (Dr Furst). Neither report provides evidence of a significant mental health issue or intellectual disability. Dr Furst says that the offender has a “low intellectual function”. Dr Howard administered various tests which disclosed that he was in the “low average” to “average range” for intelligence but that his verbal skills are very poor and that this impacted upon the results. Both reports make some reference to Mr Johnson’s exposure to domestic violence from an early age. He was exposed to alcohol and drugs at an early age and started using drugs and alcohol in his early adolescence. Neither report makes any attempt to relate those matters to the offences.

Exposure to alcohol and violence

69. The most significant aspect of Mr Johnson’s personal history concerns his exposure to violence, alcohol and drugs in his family home when he was a child and as he reached adolescence. I have received affidavits of his mother and his sister and these were not subject to cross-examination or dispute.

70. Raylene Carter said, amongst other things:

“7. My partner was also violent to the children He never touched Dale when he was that little, but I remember my partner hitting the other children in front of Dale.

8. My partner was an alcoholic. I used to drink back then as well, because it would help me get through the violence. There was a lot of drinking back then. I ended up drinking whenever my partner did, which at its worst was every second day. I would drink until I would ‘choke’ (which means pass out) so I could not feel any pain. The kids were all there when we would drink like that. Eventually the police were called, and I was told I should move out of town, so I did.

…

13. My memory of Dales father is that he was a cruel person. I believe that he was cruel because he didn’t want to split up with me.”

71. Natalie Johnson’s affidavit included:

“4. Life was difficult for us in Mildura. I recall that my father drank regularly to excess. My parents would have gambling sessions where all the adults would get drunk and play cards. That happened about once a week. Occasionally we would go to other houses for these sessions. My father got drunk most days. It was not unusual for him to have a beer in his hand.

5. We had to move with my mother Raylene Carter, to a refuge in Port Lincoln. Dale would have been very young at that time. I was about 7 years old. We moved there because my father was violent towards my mother. On one occasion, I have a memory of my father hitting my mother with a stick, putting her in the river underwater, stripping her naked and repeating the beating. This happened over and over. I can't remember if Dale was there that time, but he certainly saw things like that from time to time. My father didn't care who was around. It wasn’t a ‘behind closed doors’ kind of thing. He would do it in front of the kids, he didn't care.

….

8. My father had new partners when we came back. He was violent with them as well. One time I saw him hitting a woman with a truck shifter. I had to get the shifter off him, and hide it so he couldn't find it. The lady was knocked out, and he was yelling at her, but she couldn't move at all because she was knocked out. Her ankle was in the wrong place. I was the only person in the house that night. Dale saw a lot of what my father did to those women.

…

10. My father was very hard on Dale when he got a little bit older. Dale was flogged with golf clubs, kicked in the head, thrown to the ground. Dale suffered pretty bad injuries as a result of the beatings. He would get beaten because he didn't act how my father wanted him to act. My father was a very controlling person, he would not allow us to call our mother, and we would not receive gifts from her either. If we did something wrong, like watch a TV show we were not supposed to watch, we would get a whack on the nose so it would bleed. My father's reactions were never small.”

72. As I have said, the reports of Dr Furst and Dr Howard also touch upon this although neither expert had the extensive and graphic history that is now presented. I accept that this is the result of the offender’s poor verbal and communication skills.

73. It is well recognized that: "an offender's deprived background may militate the sentence that would otherwise be appropriate": see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 592 [37]. I have previously discussed and applied this case and the case of Munda v Western Australia [2013] HCA 38 249 CLR 600: see R v Booth [2014] NSWCCA 156 at [20]-[27]; R v Hines (No 3) at [61]-[64].

74. In Bugmy v The Queen, the joint judgment said (at [43]-[44]):

"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."

75. Further, in Munda v Western Australia the majority said (at [54]):

“It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion.”

76. However, the majority went on (at [54]-[55]):

“That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

77. Applying those principles to the present case, I accept that the offender’s exposure to violence at the hands of his alcoholic father and his exposure to early drug and alcohol abuse in the family home reduces his moral culpability for the present offence. I think the inference is inescapable that his experiences as a child and adolescent have impacted greatly upon him and affected his ability to control himself and explain his resort to violence.

78. However, this is of no comfort to the loved ones of Cheree who have travelled many miles to attend Court to ensure, as it was put by her sister, that Cheree gets justice today. Further, it remains an essential part of this sentencing process that members of the offender’s community, as well as society in general, realise that domestic violence cannot and will not be tolerated by the Courts. The sentence that I impose must attempt (insofar as it is possible) to vindicate Cheree Lawson’s human dignity and to denounce the brutal assault that led to her death.

Self-induced intoxication

79. In accordance with s 21A(5AA), I make it clear that I have not taken into account as a mitigating feature the self-induced intoxication of the offender at the time of the offence. However, in conformity with the High Court’s judgments in Bugmy and Munda, I have taken into account the fact that the offender’s early exposure to both domestic violence and drug and alcohol abuse reduce his moral culpability and capacity to control his emotions.

The purposes of sentencing and relevant legislative guideposts

80. I have taken into account the relevant purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as well as the principles of sentencing established by the common law. I must ensure that the offender is adequately punished and is held accountable for his crime and that the community is protected from the offender. I must denounce his conduct but promote his rehabilitation. I must recognise the harm done to the victim, her family and friends and to the community.

81. Murder is the most serious offence known to the criminal law and carries a maximum penalty of life imprisonment. That penalty will be imposed in the most serious of cases and it is not suggested by the prosecution that this is such a case. Nevertheless, in determining the appropriate sentence, “careful attention” to the maximum penalty is required: see Markarian v the Queen [2005] HCA 25; 228 CLR 357 at [30]-[31].

82. There is a standard non-parole period of 20 years that applies to cases after trial, that is where there is no plea of guilty. I approach the standard non-parole period in accordance with the High Court’s judgment in Muldrock v The Queen. Along with the maximum penalty, it is an important legislative guide-post. I do not intend to impose the standard non-parole period. In the course of these remarks I have set out the factors that I have taken into account in determining to impose a non-parole period less than 20 years (s 54B(3)). The two matters of most significance in this determination are the offender’s plea of guilty and the reduction of his moral culpability resulting from his early exposure to alcohol, drugs and extreme domestic violence.

83. I must synthesise these various factors, some of which pull in different directions, and, instinctively, arrive at a just and proportionate sentence.

Cases and statistics

84. Mr Wilson SC has provided me with statistics relating to some 148 cases decided between July 2007 and June 2014. They include only 8 cases where the offender pleaded guilty, was aged 21-25 years and had committed previous offences of the same kind. The statistics show a large variation in sentencing outcomes, a circumstance that accords with the fact that murders are committed in a most diverse range of circumstances. I note that of the 8 cases with those common features, 5 received a non-parole period of 15 years or less. However, the numerical database is so small that I am unable to derive any real guidance from the statistics.

85. Mr Wilson SC has also provided me with summaries of a number of cases decided by the Court of Criminal Appeal and other judges of this Court (MFI 4). He has placed some reliance and has carefully and helpfully analysed the cases of R v Kennedy [2013] NSWSC 1940, R v Bolt [2013] NSWSC 895 and R v Edwards [2009] NSWSC 164. I note that in Versluys v R [2014] NSWCCA 98 I considered the sentencing outcome in around 20 cases where there was held to be no intention to kill and no premeditation.

86. The correct approach to such material was articulated by the High Court in Hili v The Queen; Jones v The Queen[2010] HCA 45; 242 CLR 520 and by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [304] - [305]. In Hili and Jones, it was said at [54]-[55]:

"In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'."

55.   As the plurality said in Wong;

"[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.”

Sentence

87. Synthesising all of this evidence and taking into account those principles of sentencing and purposes of punishment, I have come to the conclusion that an appropriate starting point is a total sentence of 26 years.

88. Allowing a discount of a little less than 20% for the offender’s plea of guilty, the total sentence will be 21 years. I am not persuaded that there are special circumstances requiring an adjustment to the minimum term and an extended period of parole. Accordingly the non-parole period will be 75% the total sentence, that is a period of 15 years and 9 months.

Sentence

89. Mr Johnson, for the murder of Cheree Anne Lawson and taking into account the offence of assault occasioning actual bodily harm, you are convicted.

90. I sentence you to a non-parole period of 15 years and 9 months commencing on 12 March 2013 and expiring on 11 December 2028.

91. There will be a balance of term of 5 years and 3 months which will expire on 11 March 2034.

92. You will be eligible for release to parole at the expiration of the non-parole period.

93. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I will leave it to Mr Wilson SC to explain to you the relevance and likely impact of that on your post-release life.

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Decision last updated: 09 February 2015