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R v Johnson

R v Johnson

Case [2022] VSC 681 11 November 2022

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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:

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

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.

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.

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.

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

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.

Meanwhile, you continued to yell at Mr Alexander. The shotgun you were holding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Johnson

Details

AGLC: R v Johnson [2022] VSC 681
Case: [2022] VSC 681
Decision Date: 11 November 2022

CaseChat Overview and Summary

The case of R v Johnson involved the defendant, Johnson, who pleaded guilty to manslaughter by an unlawful and dangerous act. The act in question was the discharge of a loaded shotgun, which resulted in the death of the victim. The case was heard in a higher court where the sentencing of Johnson was the primary concern.

The court was tasked with determining an appropriate sentence for Johnson, considering various factors including the nature of the offence, Johnson's plea of guilty, his limited prior criminal history, moderate prospects for rehabilitation, and the impact of the COVID-19 pandemic on the prison system. The principles of Bugmy were considered, emphasising the importance of general deterrence, denunciation, specific deterrence, and community protection. The court also weighed the utilitarian value of Johnson's plea during the pandemic and the restrictions in custody due to COVID-19.

The court concluded that the sentence should reflect the severity of the offence and the need to protect the community while also considering Johnson's prospects for rehabilitation. The court determined that a sentence of nine years’ imprisonment with a non-parole period of six years was appropriate. This sentence aimed to achieve the necessary balance between the principles of sentencing and the unique circumstances presented by the pandemic and Johnson's background.

The final orders of the court were that Johnson be sentenced to nine years’ imprisonment with a non-parole period of six years. This decision aimed to ensure that the sentence met the objectives of deterrence, denunciation, protection of the community, and consideration of Johnson's potential for rehabilitation.

Orders