R v Johnson

[2022] VSC 681

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0027

THE KING	Crown
v
KEVIN JOHNSON	Accused

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JUDGE:	Taylor JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2022
DATE OF SENTENCE:	11 November 2022
CASE MAY BE CITED AS:	R v Johnson
MEDIUM NEUTRAL CITATION:	[2022] VSC 681

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Discharge of loaded shotgun – Plea of guilty – Relevance of general deterrence, just punishment and denunciation – Specific deterrence and community protection – Limited prior criminal history – Moderate prospects for rehabilitation – Restrictions in custody due to COVID-19 pandemic – Utilitarian value of plea during pandemic – Bugmy principles enlivened – Sentence of nine years’ imprisonment with non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke QC Mr G Buchhorn	Office of Public Prosecutions
For the Accused	Mr R Nathwani with Mr G Cooper	Victorian Aboriginal Legal Service

HER HONOUR:

1. Kevin Johnson, you have pleaded guilty to the manslaughter of Matthew Alexander. The maximum penalty for this offence is 20 years’ imprisonment.

Summary of offending

1. On the evening of 12 September 2019, Mr Alexander was at his house in Easton Road, Daltons Bridge with Cameron Warby and Christopher McDonald. Throughout the night, the three men consumed ‘ice’ and worked on a Holden Commodore sedan parked next to a shed in the driveway of the premises.

1. In the early hours of 13 September 2019, you met with Daniel Oberin in the vicinity of Gunbower. Together, you travelled in a Holden utility to Daltons Bridge. That ute had been purchased by you in the week prior. You and Oberin took with you a loaded side by side sawn off shotgun. Oberin believed that Mr Alexander had possession of a gas bottle from a MIG welder that had been recently stolen from his Gunbower farm.

1. You and Oberin arrived at the Daltons Bridge property shortly before 6.00am. Together you approached the three men, who continued to work on the vehicle. You discharged a round from the shotgun into the air and yelled to the three to get to the ground. Mr Warby and Mr McDonald complied. When on the ground, Mr McDonald saw that you were standing on the driver’s side of the Holden Commodore, holding the shotgun.

1. Mr Alexander remained upright. Oberin began arguing with him and a physical altercation developed between them.

1. Oberin then entered a shed on the property and yelled ‘where is the recording box?’. Mr Alexander replied that it was ‘in the corner.’ Oberin exited the shed and again demanded to know where the CCTV recording box was located. You struck Mr Alexander with the gun, causing him to fall to the ground. He then said that the box was ‘under the TV’. Oberin returned to the shed to obtain the internal hard drive of the recording box.

1. Meanwhile, you continued to yell at Mr Alexander. The shotgun you were holding discharged. The round hit Mr Alexander in the head whilst he was in a position low down against another car. It caused catastrophic injury. You said ‘yeah, I’ve killed him’ before walking back past Mr McDonald. You then said that you had to kill Mr Warby and Mr McDonald as well.

1. Oberin exited the shed with the hard drive and joined you on the driveway. You repeatedly said ‘I’ve killed him’. You also tried to re-load the shotgun. The fore-end of the firearm became detached and was left behind as you and Oberin ran back to the ute and left the scene. Together you drove to Echuca, taking the hard drive and (most of) the shotgun with you.

1. Mr Warby and Mr McDonald contacted emergency services. Fearing your return, Mr Warby drove Mr Alexander’s vehicle through a corrugated iron fence, paddock gate and eventually into a mailbox. He tried to call for help before returning to the scene. Meanwhile, Mr McDonald had commenced CPR on Mr Alexander, who was then still breathing.

1. Shortly after 6.30am police and emergency services arrived. Matthew Alexander was pronounced dead. A crime scene was established.

1. You were arrested on 9 October 2019 after you presented yourself at the Echuca Police Station.

Victim impact statements

1. I have received and considered 11 victim impact statements.

1. The siblings, parents, partner and ex-partner of Mr Alexander all speak of their unending grief at his death and the ongoing impact it has had on them as individuals and as a family. His death has also affected his two young daughters. Those daughters, with appropriate assistance, have drawn pictures and described how they each want to go to the moon to see their daddy. Mr Alexander’s older sister, encapsulating the feelings of her family members, describes the impact of his death as a silent undercurrent, with life-long power to push and pull her to places not of her choosing. It is clear that this close-knit family has been devastated.

1. Mr Alexander’s friends, including Mr Warby who was present at the shooting, miss their friend and have difficulty accepting the manner in which he was killed.

1. Matthew Alexander was a much loved man and is dearly missed.

Personal circumstances

1. It is necessary to say something of your personal circumstances.

1. You were born in March 1985 in Echuca, where you have lived most of your life. You are a proud Yorta Yorta man, now aged 37 years. You have one younger brother who is a qualified builder and father of five. You also have a half-sister and three half-brothers from each of your parents’ other relationships.

1. The relationship between your parents was marred by family violence. Your father drank heavily and used amphetamines and cannabis. You observed him being both physically and verbally abusive to your mother. In this environment, you did your best to look after your younger brother and often stayed with your grandparents. Your parents separated when you were about seven or eight years of age.

1. You have a supportive partner, Nolita Edwards. You and Ms Edwards have been together for about 18 years, apart from a period of separation between 2010 and 2013. Together you have two daughters, a 15-year-old who attends a private boarding school in Melbourne and a six-year-old who lives with her mother in Echuca.

1. You also have two other children from other relationships. One is a 19-year-old son who lives with his mother in Western Australia. You have no contact with him. The other is a ten-year-old child who was assigned male at birth but identifies as female. She lives with Ms Edwards and your six-year-old in Echuca as her biological mother has difficulties with substance use and mental health.

1. In school, you completed year ten but struggled academically. Your frequent changes of schools did not assist. Nonetheless you have a consistent and stable employment history. After leaving school you worked as an arborist for a local council for about three years. Thereafter you completed a viticulture apprenticeship and worked on a vineyard in NSW for about four years. Then followed a period as an earthmoving and digging subcontractor in the Echuca area before a nine-year period of employment for the Njernda Aboriginal Corporation in a maintenance role. You were also involved in Njernda’s other activities such as men’s groups, youth groups and NAIDOC functions. That employment ended with your remand.

1. I have received and considered two character references written with respect to your work at the Njernda Aboriginal Corporation. Both Ms Anne Munzel, its medical manager, and Ms Karlene Dwyer, its former chief executive officer (who is also your mother-in-law), note that as an employee you were reliable, unfailingly courteous, respectful and friendly.

1. Both women also note your strong connection to your culture. Ms Dwyer states that you taught children their cultural heritage during camps along the Murray River. Another referee, Reginald Yarran, states that you are a respected member in the Noongar and Koori communities. I note that since your remand you have held the position of Aboriginal Peer Listener at Barwon prison.

1. You have battled drug and alcohol abuse since your early teenage years. Alcoholic spirits were readily available to you from about the age of 13 years and you commenced amphetamine use when you were 15 or 16 years old. This drug was used by and supplied to you by family members. The habit quickly escalated to daily use. You also used cannabis and, in your twenties, commenced methamphetamine use which, at times, reached levels of two grams per day. You have had periods of abstinence. Both Ms Edwards and Ms Dwyer record that you have entered drug rehabilitation centres on four occasions. But your addiction is pernicious.  Mr Patrick Newton, a clinical and forensic psychologist who prepared a report on your behalf, diagnoses you with substance-use disorder. It was previously severe but is now in remission as you are in a controlled environment on account of your remand.

1. Substance abuse has had a serious impact on your life and that of your family. As a teenager you were a talented footballer with some potential to play in the AFL. Your drug use extinguished this opportunity. Your relationships have suffered. Overall, your relatively limited prior criminal history is consistent with your history of drug and alcohol use.

1. And you committed this serious crime whilst under the influence of drugs.

Analysis

1. Your offending was very serious. It was conceded on your behalf that an immediate, lengthy prison sentence is the only appropriate sentence for your conduct.[1]  Whilst the shooting of Mr Alexander was accidental, the following matters are relevant to the objective gravity of your offending.

   [1]Manslaughter is a ‘category 2 offence’ and s 5(2H) of the Sentencing Act 1991 (Vic) applies.

1. First, you, in company, deliberately took a loaded shotgun to a scene of intended confrontation. You were uninvolved in the subject of the dispute. Some planning was involved. As you told Mr Newton, you took the firearm to let those present know that you and Oberin ‘were serious.’ Second, that scene was a domestic setting with more than one person present. Mr Warby and Mr McDonald could only have been terrified. Third, you deliberately fired one round from the shotgun and also used it to strike Mr Alexander. You behaved aggressively and yelled at the men present, Mr Alexander in particular. Fourth, the shotgun was old and in poor mechanical condition. Fifth, you were intoxicated by methamphetamine. Sixth, the combination of these matters produced a situation that was plainly dangerous. The risk of death was high and entirely foreseeable.

1. I also consider your moral culpability for the offending to be high. You were an active participant in a dangerous and unlawful scheme to scare Mr Alexander and assist Oberin to recover the gas bottle. Your involvement was far from spur of the moment. You knew the shotgun was loaded and in poor order. You willingly attended Mr Alexander’s property and willingly armed yourself with the shotgun. You were indifferent to Mr Warby and Mr McDonald. You were utterly indifferent to Mr Alexander once he had been shot. Your actions in fleeing the scene were cowardly in the extreme. And I note that the firearm has not been recovered.

1. It follows that general deterrence, just punishment and denunciation are all significant sentencing considerations. The dangerous handling of firearms, particularly the use of a loaded gun during an altercation in a domestic setting, must be censured in the strongest possible terms. Such use of a firearm will be met with condign punishment.

1. Specific deterrence and protection of the community are also relevant sentencing factors. While your criminal history is limited and your last conviction for violence was in 2015, Mr Newton has assessed you as a ‘moderate risk’ of violent reoffending. He considers that you have limited insight into your emotions, particularly anger. He also considers that you have a limited understanding of your need for violence-related intervention. Further, Mr Newton states that you have a relatively undeveloped level of insight into your drug use and relapse prevention.

1. These matters must be considered with and balanced against other sentencing considerations.

1. First, your plea of guilty. Although your formal offer to plead to a charge of manslaughter was only made in February 2022, your defence response filed in June 2021 (at which time you were charged with murder) raised the issue of manslaughter. In all the circumstances, I accept that your plea is of utilitarian benefit. That it was made at a time of unprecedented pressure on the criminal justice system due to the COVID-19 pandemic makes it more so.[2] Your plea is also some evidence of remorse. I also note that you have expressed remorse to those who provided character references on your behalf.

   [2]Worboyes v The Queen [2021] VSCA 169, [35].

1. Second, I take into account the impact that the COVID-19 restrictions have had upon your experience of custody, being the first time you have been imprisoned. It has been difficult for you to have face-to-face contact with your family. Telephone contact has been curtailed. Your access to programs has been limited. There has been some consequent delay in the resolution of the matter.

1. Third, you have made some tentative steps towards rehabilitation. You have engaged in courses available to you. You have obtained employment in custody and remained drug-free. Your solid employment history is favourable. You have the sensible and loving support of your partner and mother-in-law, as well as of your community. And I have no doubt that your experience of custody to date will have had a salutary effect upon you.

1. I consider your ability to remain drug-free when released into the community to be the most significant factor in your prospects for rehabilitation. Notwithstanding the steps you have taken to date and the acknowledgment and support demonstrated by Ms Dwyer and Ms Edwards in relation to your struggles with substance use, I find your prospects of rehabilitation to be no more than moderate in light of Mr Newton’s evidence of your relatively limited insight into these issues.

1. Fourth, your experience of childhood deprivation and disadvantage enlivens the principles in Bugmy v The Queen.[3]  At a tender age you witnessed family violence perpetrated by your father towards your mother. You were exposed to and supplied with alcohol and drugs by family members as a teenager. Your schooling was interrupted. Mr Newton considers that you ‘had the instrumental use of violence as a means of control and problem solving modelled by significant others.’  It follows that there is some reduction in your moral culpability for your offending and as well as in the weight accorded to general deterrence. However, protection of the community remains a significant sentencing factor.

   [3](2013) 249 CLR 571.

1. I have been referred to a number of comparable cases.[4] To the extent possible with respect to the offence of manslaughter, I have had regard to current sentencing practices.[5]

   [4]Biba v The Queen [2022] VSCA 168; DPP v Nelis [2022] VSC 50 (‘Nelis’); DPP v Panagiotou [2022] VSC 9; DPP v Williams & Godfrey [2020] VSC 483; R v Ashman [2020] VSC 105; DPP v White [2020] VSCA 37; R v Samaras [2019] VSC 120; DPP v Osborn [2018] VSCA 207; Atesok v The Queen [2018] VSCA 22; R v Cicekdag [2017] VSC 781; DPP v Robinson [2017] VSC 56; R v Rapovski [2016] VSC 706; DPP v Torun [2015] VSCA 15; R v D’Angelo [2014] VSC 522; R v Stratton [2008] VSCA 130.

   [5]I note that the maximum penalty for manslaughter is now 25 years’ imprisonment. Of the comparable cases cited, that maximum penalty was relevant only in the case of Nelis.

1. I have applied the principle of parsimony.

Sentence

1. Mr Johnson, would you please stand.

1. Balancing, as best as I am able, the competing considerations laid down in the Sentencing Act 1991 (‘Act’) and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment for nine years. You must serve a minimum of six years’ imprisonment before being eligible for parole.

1. I declare that you have already served 1129 days of that sentence by way of pre-sentence detention, not including today.

1. I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of 11 years’ imprisonment with a non-parole period of nine years.

Ancillary orders

1. I make the disposal and forfeiture orders in the terms sought by the Crown.