R v Johnson (No 8)

[2019] NSWSC 613

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Johnson (No 8) [2019] NSWSC 613

Hearing dates:

10 May 2019

Date of orders:

24 May 2019

Decision date:

24 May 2019

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

For the common assault of Scott Campbell on 29 June 2017 convicted and sentenced to a fixed term of imprisonment of 10 months, commencing on 29 June 2017 and expiring on 28 April 2018.

For the murder of David Morrison sentenced to a total term of imprisonment of 26 years and six months, having a non-parole period of 20 years, commencing on 29 September 2017 and expiring on 28 September 2037 with an additional term of 6 years and 6 months commencing on 29 September 2037 and expiring on 28 March 2044. You will first be eligible for parole after the expiration of the non-parole period on 28 September 2037.

Catchwords:

CRIMINAL LAW – Sentencing – murder – considerations for court to take into account – criminal record – moral culpability – requirement not to impose fresh penalty for past offending – requirement to give full weight to profound childhood deprivation – contrition and remorse – not made out on balance of probabilities – limited prospects of rehabilitation – recidivous homicide – absence of remorse – danger presented to society – requirement that facts relied upon in sentencing must be established beyond reasonable doubt

 

CRIMINAL LAW – Principles of sentencing – denunciation – retribution – general deterrence – specific deterrence attenuated by moral culpability

  SENTENCING – Special circumstances – whether statutory ratio between the non-parole period and additional term to be altered – statutory ratio maintained – non-parole period 20 years – additional term 6 years

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 22, 22A, 61
Crimes Act 1900 (NSW), ss 19A,
Crimes (High Risk Offenders Act) 2006 (NSW)

Cases Cited:

Bugmy v The Queen (2012) 249 CLR 571; [2013] HCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Fernando (1992) 76 A Crim R 58
R v Herne [2001] NSWCCA 37
R v Hines (No 3) [2014] NSWSC 1273
R v Johnson (No 7) [2019] NSWSC 148
Veen v The Queen (No 2) (1988) 164 CLR 467
Versluys v R [2014] NSWCCA 98

Category:

Sentence

Parties:

Regina (Crown)
Douglas Johnson (Accused)

Representation:

Counsel: G.J. Tabuteau (Crown)
    E. Ozen SC (Defence)

  Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associates (Accused)

File Number(s):

2017/195278

Judgment

1. I am to sentence the offender for two offences. The first and most serious is the offence of murdering David Morrison on 29 June 2017 at Campsie. The second is of assaulting Mr Morrison’s friend and companion on that day, Scott Campbell at the same time and place. Mr Johnson pleaded not guilty to the murder charge. At his election and with the Crown’s consent he was tried by me sitting without a jury over several days in February of this year. For reasons I delivered on 22 February 2019 (R v Johnson (No 7) [2019] NSWSC 148), I brought in a verdict of guilty of murder.

2. When first arraigned in the Supreme Court on 6 July 2018, the offender entered a plea of guilty of the assault of Mr Campbell to which plea he has adhered throughout.

3. My findings of fact which led to the offender’s conviction are fully set out in my judgment of 22 February 2019. This judgment assumes some familiarity with those reasons. As the assault on Mr Campbell immediately followed the murder of Mr Morrison, and Mr Campbell was a witness in the murder trial, the facts underpinning the assault charge are also dealt with in that judgment.

4. I have received additional evidence relevant to sentencing the offender at the proceedings on sentence on 10 May 2019. As both counsel have provided submissions on sentence by reference to the factual findings made after the Trial, I think it sufficient that I provide a short narrative of the findings I made so far as they are relevant for sentencing purposes.

5. At the outset I remind myself that the facts informing my decision about the seriousness of the offending, the offender’s culpability, and any aggravating circumstances relied upon by the Crown must be established to my actual satisfaction beyond reasonable doubt. This does not mean that I am required to sentence the offender on the most benign version of fact available on the evidence. Facts which may operate to reduce the offender’s moral culpability and otherwise mitigate the severity of the sentence need to be established to my satisfaction on the balance of probabilities. That is to say, it is enough if I am satisfied that those matters have been established as more likely than not: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at ([272] – [278)].

The facilitation of the course of justice

6. It is important to record that notwithstanding his plea of not guilty to murder, the offender, through his counsel, Mr Ozen SC, limited the issues for determination at trial relieving the Crown of the need to prove beyond reasonable doubt that by his act in stabbing Mr Morrison twice, the offender caused his death. In substance the issues pressed for determination were restricted to the mental element of the offending and self-defence.

7. This reduced the time that might otherwise have been required for the trial and to that extent facilitated the course of justice. This meant that many of the witnesses who called of necessity to provide me, as the tribunal of fact, with a sufficient narrative of all material facts to equip me to make a decision about the offender’s guilt or innocence were not cross-examined by Mr Ozen. Only those witnesses giving evidence going directly to the issues I have identified were subject to cross-examination, and even then learned senior counsel was economical. This approach to the conduct of the trial saved time and doubtless spared many of the witnesses unnecessary angst in giving evidence. I will take this into account to reduce to some, may I say, appropriately modest, extent the sentence which otherwise would have been imposed in accordance with s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”).

Objective seriousness of the offending

8. For the purpose of imposing a sentence which is proportionate to the offending, it is necessary for me to assess the objective seriousness of the offending. As murder is a standard non-parole period offence, this is a statutory requirement under Div. 1A of Part 4 of the Sentencing Act. The standard non-parole period represents the non-parole period for an offence mentioned in the statutory table that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (at [27]), the High Court of Australia said:

Meaningful content cannot be given to the concept by taking into account characteristics of the offender. 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.

9. The consideration that murder is a standard non-parole period offence does not derogate from the obligation of the Court to take into account the full range of facts, matters and circumstances relevant to the offending and the offender to determine the appropriate sentence. Those factors include, as legislative guideposts, the maximum sentence and the standard non-parole period.

Penalties

10. The maximum penalty for murder is, of course, a sentence of life imprisonment: s 19A Crimes Act 1900 (NSW). The Court must impose that sentence if satisfied beyond reasonable doubt that the offender’s level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence: s 61 Sentencing Act. The Crown has not argued that this is such a case, and in any event I am not so satisfied for the reasons I will give. Section 21 Sentencing Act empowers the Court to impose a sentence of imprisonment for murder for a specified term in cases to which s 61 of the Sentencing Act does not apply.

11. I repeat, however, for murder, therefore, the maximum penalty is imprisonment for life and the standard non-parole period applicable to this category of murder is 20 years.

Relevant facts

12. Mr Morrison was at least known to the offender by sight. It is not clear that Mr Morrison would have recognised the offender. The full circumstances in which Mr Morrison was recognisable by the offender were not made clear in the evidence. It seems more certain that Mr Campbell and the offender were at least known to each other from previous encounters. I am not suggesting previous violence.

13. The offender probably recognised Mr Morrison, at least, from the occasions on which Mr Morrison accompanied Mr Campbell to a Methadone Clinic where Mr Campbell received his prescription of that drug. This happened to be the same Methadone Clinic attended by the offender’s partner and on the evidence led at the trial, the offender at least recognised Mr Morrison from having seen him in the vicinity of that clinic when the offender accompanied his partner there.

14. The evidence established that Mr Campbell and the offender’s partner had both attended the clinic on the day of the murder. The offender had accompanied his partner and Mr Morrison had accompanied Mr Campbell. Mr Morrison probably waited outside. It was not established that the offender had actually noticed Mr Morrison’s presence in the vicinity on 29 June 2017.

15. As it happened, the peregrinations of each couple after leaving the Methadone Clinic took them along Beamish Street, Campsie heading in a generally northerly direction. Again, as it happened, the offender and his partner were somewhat ahead of Mr Morrison and Mr Campbell. For no particular reason the offender and his partner paused on the footpath outside a bakery in Beamish Street. When they did so, the offender’s partner noticed Mr Morrison and Mr Campbell approaching and recognised them from the clinic. She pointed at them and made comment about their presence. Mr Morrison and Mr Campbell were oblivious to the presence of the offender and his partner.

16. When they were first seen, Mr Morrison and Mr Campbell were adjacent to a shoes and other accessories shop next door to the bakery. Mr Morrison was a pace or two ahead of Mr Campbell and did not notice him enter the shop until the latter called out to him. By then Mr Morrison was in front of the Bakery very near the offender and his wife. On hearing Mr Campbell’s call, he retraced his steps and entered the shoe shop after Mr Campbell.

17. For no good reason whatsoever, the offender, and apparently his partner, jumped to the baseless conclusion that Mr Morrison and Mr Campbell were stalking them with the intention of ambushing the offender.

18. In my principal judgment at [79] – [80], I said that there was no foundation whatsoever in the evidence that Mr Morrison and Mr Campbell were stalking the offender and out to get him at some point on the journey where he may be vulnerable. I found that the only rational inference is that their presence on Beamish Street at the same time as the offender and his partner, after they had all been at some stage that morning at the same Methadone Clinic was a pure coincidence.

19. It also happened that the offender at this time had on his person, in his pocket a short bladed knife which he said had been brought from home for the purpose of cutting up fruit. On the strength of his baseless supposition, the offender determined to follow Mr Campbell and Mr Morrison into the shoe shop, confront at least Mr Morrison, or both him and Mr Campbell, if necessary, to warn them off using the knife for that purpose if the offender deemed it appropriate.

20. The offender strode into the shoe shop bent on confronting Mr Morrison who was then looking at shoes offered for sale toward the back of the shop. Mr Campbell was off to one side with his back to the offender as the latter entered the shop. The offender noticed him, but continued without hesitation towards Mr Morrison.

21. When he was quite near Mr Morrison he said something to the effect “are you conspiring against me?” Mr Morrison who had been looking at the shoes turned and walked toward the offender, not in a threatening manner but to better hear what was being said. As he moved closer for that purpose, Mr Morrison had his hands full with some items he had purchased earlier that day.

22. The offender quickly grew agitated. His rising agitation was sufficiently palpable, or perhaps voluble, for Mr Campbell to look in his direction and to walk over to where the confrontation was occurring. He went to support his friend, not to threaten the offender. As he approached, the offender became even more voluble and his agitation more obvious. He drew the knife from his pocket, discarded its sheath and brandished it towards the Mr Morrison.

23. Upon seeing the knife, Mr Morrison walked hurriedly backwards in an attempt to get away from the offender. As he did so the offender lunged forward, grabbing the Mr Morrison with his left hand to prevent his escape. In the same movement he stabbed Mr Morrison twice with quick and powerful thrusting motions with his right hand.

24. According to the expert forensic evidence, the offender inflicted two stab wounds to Mr Morrison in his left pelvic and upper thigh region. The upper wound was in a more or less vertical plane. The lower wound was in a horizontal plane. The lower wound severed Mr Morrison’s femoral artery. The femoral artery and vein are vital vessels transporting blood to the lower part of the body and back to the heart. They are essential to oxygenation of the tissues of the leg. The cause of death from the severed artery was hypovolemic cardiac arrest as a result of extensive blood loss.

25. When he was stabbed Mr Morrison staggered away before collapsing on the shop floor. The offender then turned to face Mr Campbell and stood very close to him in his personal space. The men circled each other, exchanging words. The offender punched Mr Campbell on the chin after he had manoeuvred himself into the position where he was between Mr Campbell and the door. It was an entirely unnecessary act because the coast was clear for him to make good his getaway. Mr Campbell had not offered any resistance or anything that could be called a threat to the offender. The offender’s punch was entirely gratuitous probably for the purpose of warning Mr Campbell off. The offender then walked briskly away and out of the shop. An incredible feature of these events is that the confrontation, sought and brought about by the offender, occurred in broad daylight in a shop open to the public where at the time there were at least one other shopper and a shop assistant nearby.

The mental element

26. On the basis of the whole of the evidence led at the trial, I was not persuaded beyond reasonable doubt that when he stabbed Mr Morrison the offender intended to kill him. I was, however, satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm upon Mr Morrison. It was on the basis of this finding together with the admissions made that his act of stabbing Mr Morrison caused his death that I found the offender guilty of murder.

27. In my judgment of 22 February I said this at [82] – [83]:

I accept that the [offender] did not go on with his attack. This is an important consideration in concluding that the Crown have not established an intention to kill. However, that is not the end of the matter. I am satisfied beyond reasonable doubt that when he stabbed the deceased twice, the accused intended to really seriously injure him. Even if this was a spontaneous urge borne entirely of his self-induced increased agitation.

A number of factors have led me to this conclusion. The first is the deliberate use of a knife; the second is that it was used to stab rather than to slash; the third is the fatal stab wound required the fair degree of force that Dr Langcake described to penetrate deeply through the deceased’s clothing and into the various tissues of his thigh she described before severing the femoral artery and vein which are located deep near the bone; fourthly, although I accept he did not expect the deceased to die that is of no particular moment in the circumstances. His actions which I have described as quick and powerful demonstrate a strong desire to injure the deceased in a really serious way; fifthly this is the natural consequence of stabbing someone, which as a mature adult the [offender] must be taken to know; and sixthly, he appeared unsurprised and unconcerned about the deceased’s condition when he staggered away after being stabbed, collapsing on the floor before the accused left.

Self-defence

28. I was also satisfied beyond reasonable doubt that the Crown had excluded any reasonable possibility that when the offender stabbed Mr Morrison he was acting in self-defence. I made that decision because I was satisfied beyond reasonable doubt that the attack by the offender on Mr Morrison was borne entirely of the offender’s own self-induced agitation, which in turn had been generated by his baseless suspicion that somehow Mr Morrison and Mr Campbell were out to ambush him. He entered the shop to confront Mr Morrison to warn him off if necessary using the knife. I was satisfied beyond reasonable doubt that the Crown had excluded the possibility that the accused stabbed Mr Morrison because he believed that was necessary to defend himself from an actual threat posed by Mr Morrison or by Mr Morrison and Mr Campbell in combination. In these circumstances no question of the reasonableness of the offender’s response arose.

Victim impact statement

29. In every case of murder, the harm inflicted extends beyond the death of the immediate victim to the loss suffered by the victim’s family as a result of the death. I have had the benefit of hearing a victim impact statement read on behalf of Mr Morrison’s daughter which eloquently expresses how her father’s death has affected her psychologically. I fully understand what a powerful emotion grief is. In time one may become reconciled to it, but rarely does one get over it entirely. On behalf of the Court I offer my condolences to all of the family victims of this offending.

30. It is well to bear in mind that a central consideration in sentencing for murder is the sanctity of all human life regardless of the victim’s circumstances in life before his or her death. Equality before the law is a fundamental value of our democratic society. This extends to a requirement that the homicide of every victim requires vindication in sentencing whatever the victim’s station in life. I will have regard to the unlawful taking of Mr Morrison’s life and its impact on his family as an aspect of the loss caused to the whole community by this offending.

Evaluation of objective seriousness of the offending

31. As I have already said, it’s not contended that this offending falls into the worst class of murder. Moreover, it is generally accepted, and is accepted by the Crown in this case, that murder borne of a specific intent to inflict grievous bodily harm falls into a less serious category than murder actuated by an intention to kill. As Hamill J said in Versluys v R [2014] NSWCCA 98 at [21]:

While every case will turn on its own facts, and while no categorical proposition can be discerned from past murder cases, it is generally the case that murders involving a lack of intention to kill and a lack of premeditation are likely to be less serious than those in which there is established premeditation and an intention to kill.

This case falls into that somewhat lesser category.

32. The offender’s actions which caused Mr Morrison’s death were entirely spontaneous. They were borne of a spur of the moment decision to confront Mr Morrison, even if that decision was the product, as I have found, of an entirely baseless suspicion that Mr Morrison and Mr Campbell were stalking him.

33. The actual confrontation was relatively short lived. And even allowing that the offender was prepared to use the knife, his actual decision to produce and use it, was made in the moments only before he stabbed Mr Morrison as his self-induced agitation rose. It is not insignificant that he restrained Mr Morrison from escaping as he went to stab him. On the other hand, he did not deliberately attack Mr Morrison’s body where one might expect to find a vital organ, like the chest. It must be borne in mind that he was unlikely to be conscious of the consideration that if he stabbed Mr Morrison in the leg, even as powerfully as he did, he might sever his femoral artery.

34. For the purpose of deciding intent at the trial I found (at [81]) that the placement of the stab wounds was no more than an accident of the dynamic interaction of Mr Morrison and the offender as the former tried to get away and the latter refused to let him. Nonetheless, the knife was used deliberately. It was used to stab, rather than slash. On the expert evidence, the infliction of a stab wound deep enough in the thigh to sever the femoral artery required a fair degree of force. The application of that force by quick and powerful actions demonstrated a strong desire to injure the deceased in a really serious way.

Assessment of objective seriousness

35. Having regard to these considerations the Crown submitted that the offending falls above the middle of the range of seriousness for the most serious offence of murder.

36. By reference to R v Herne [2001] NSWCCA 37 at [34], Mr Ozen argued that an offence of murder which is neither premeditated nor actuated by intention to kill does not fall into the “more serious half of murder offences”. Rather, Mr Ozen referred to Hamill J’s assessment in R v Hines (No 3) [2014] NSWSC 1273 to argue that the case falls substantially below the mid-range of seriousness for murder cases.

37. I cannot agree that this particular offence falls substantially below the mid-range. Given the entirely unprovoked, deliberate and determined nature of the offender’s attack on Mr Morrison with the knife, the offending may not fall into the more serious half of offending, but it certainly does not dip below the midline.

Objective seriousness of the assault on Mr Campbell

38. As I have said the offender pleaded guilty to assaulting Mr Campbell. The charge is brought under s 61 of the Crimes Act 1900 often referred to as common assault. It carries a maximum penalty of imprisonment for two years. It’s not an element of this offence that actual bodily harm was occasioned. Legally, an assault was constituted by an act of the accused by which he intentionally causes another person to apprehend immediate and unlawful violence. The conduct must be done without consent and the conduct is taken to be intentional if the accused realised that Mr Campbell might fear that he would then and there be subject to immediate and unlawful violence. The conduct must be carried out without lawful excuse. The actual striking of the victim by the perpetrator is not an element of the offence. However, the offense is no less an assault where actual violence, as here, is involved. Here the offender actually punched Mr Campbell. He did not knock him down and such injury as was inflicted was transient. The infliction of actual injury would have involved a more serious offence.

39. As this offending occurred in the course of other more serious offending and involved the gratuitous and unnecessary infliction of violence upon Mr Campbell, I am of the view that the offending falls in the midrange of objective seriousness. I record that common assault is not a standard non-parole period offence.

Previous convictions

40. Under s 21A(2)(d) of the Sentencing Act, it is an aggravating factor where the offender has a record of previous convictions, particularly if the offender is being sentenced as here for a serious personal violence offence and has a record of previous convictions for serious personal violence offences.

41. The unfortunate truth from the offender’s point of view is that his murder conviction is his fourth conviction for serious personal violence offending involving the use of a knife or like sharpened instrument. Indeed, counting an offence which was taken into account when he was sentenced for a previous murder, this is his fifth offence involving the use of a knife.

42. In addition to these offences, he has convictions for assaulting a corrections officer in the execution of his duty, damaging or destroying property while in custody and three convictions for failing to comply with an Extended Supervision Order under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) imposed upon him by order of this Court on 12 June 2015. He remained subject to that order when the offending of 29 June 2017 occurred. I interpolate that order is currently suspended by reason of his present incarceration. It may be important to record here that the Crown did not argue that the offender’s commission of this crime while subject to the ESO was itself an aggravating factor and accordingly I have not treated it as such (POS 15.10T).

43. Not only does the previous pattern of offending aggravate, by dint of the Sentencing Act, the current offending, it is also relevant in other ways which may be particularly germane in the present case. In Veen v The Queen(No 2) (1988) 164 CLR 467 (at p 477) four justices of the High Court in a joint judgment said:

The antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

These considerations have a part to play in the appropriate sentence to be passed for this offending and for this offender. I record at once that the application of those principles does not justify the imposition of a sentence merely for the purpose of preventative detention: Veen [No 2] (pp 472 – 3). Moreover, it is necessary for me to be astute not to impose a fresh penalty for past offending.

Circumstances of previous offending

44. The offender had just turned 18 when his first serious knife offence occurred. Late on 14 August 1992 he and a companion approached a person who was unknown to them and who was walking home from his work as an assistant chef. The companion grabbed the victim’s shirt-front and the offender approached from the rear stabbing the victim through the neck just below his left ear with a kitchen knife. The blade of the knife was about 12 centimetres in length. The offender stabbed the blade through the victims head from his left ear to his nose. The offender and his companion fled the scene abandoning the victim with the knife still imbedded in his head. The victim suffered serious injury requiring a number of surgical procedures. The Crown accepted a guilty plea to a charge of malicious wounding on an indictment containing more serious charges.

45. The second and third offences involving the use of a knife occurred over the night of 14 and 15 June 1993 while the offender was still 18 and on bail in respect of the malicious wounding charge. Both offences involved the same victim. The first of these two offences was not the subject of a charge or conviction but was taken into account at the offender’s request when he was sentenced for the murder of the same victim.

46. The offender and the victim were drinking at an impromptu party. The occasion “became somewhat unpleasant” when the offender and the victim took to fighting over the affections of a girl who was present. Their fight spilt out onto the street and the offender stabbed the victim once in the left upper arm and twice in the lower back with a knife. After the victim had been treated for his wounds in hospital, he went looking for the offender and made a disturbance outside the premises where he believed the offender to be. The offender took up a vantage point on the roof of neighbouring premises watching the victim. The victim responded to calls from his father who had been looking for him to come home and the offender was able to monitor his progress from the roof. He then followed him armed with a large knife. When he caught up with the victim he stabbed him twice in the back, once in the chest and once through the mouth. “These were very deep wounds”. One of the wounds through the back penetrated the victim’s heart and proved fatal. The offender ran from the scene disposing of his knife on his way. He eventually surrendered himself to police.

47. He was sentenced for the malicious wounding and the murder by Justice Wood (as the Chief Judge at Common Law then was) on 3 July 1994. His Honour sentenced the offender on the malicious wounding charge to a fixed term of 4 years and 9 months and on the murder charge to a sentence having a non-parole period of 15 years and an additional term of 7 years. Both sentences were to be served concurrently commencing on 15 June 1993. It should be appreciated that the offender served the full sentence of 22 years imposed by Justice Wood. He was never deemed eligible for parole and was not released until the sentence expired on 14 June 2015, on which day the Extended Supervision Order took effect.

48. In his remarks on sentence, Justice Wood referred to what today is regarded as the offender’s background of profound social deprivation which reduced the offender’s moral culpability in accordance with the principles which his Honour had outlined in his seminal decision of R v Fernando (1992) 76 A Crim R 58.

49. His Honour also said:

It is regrettable that this young man has chosen so readily to resort to the use of a knife. He has now done so on three occasions, and finally with tragic results. That history tends to suggest a propensity for serious violence on his part, signs of which were already present in his antecedents.

………………………………….

In sentencing [the offender] I must take into account the fact that the offence of murder was committed at a time while [the offender] was on bail and that each of the offences before the Court involved the use of a knife. That latter circumstance is a matter which is utterly abhorrent to the community. Anybody who takes up a knife and uses it upon another can expect nothing other than a significant custodial sentence.

(R v Douglas Johnson unreported Supreme Court of New South Wales 70097/92; 70090/93, 3 June 1994. The other statements quoted above are from this judgment.)

50. The offender’s fourth offence involving stabbing with a sharpened implement was one of maliciously wounding a fellow inmate at Goulburn Correctional Centre on 22 January 2002. The offender and the victim may have been relatives and were permitted to meet for this reason. Unbeknown to the prison authorities, they had arranged to meet to fight. The offender had fashioned a wooden “shiv” from a paint brush 15 to 20 centimetres in length. He stabbed the victim with this weapon during their fight causing a pneumothorax. It took prison authorities some time to separate the inmates and quell their controversy. His Honour Judge J B Phelan sentenced the offender on his plea of guilty to a sentence of 2 years and 8 months, having a non-parole period of 2 years fixed to commence on the expiration of the non-parole period for the murder offence on 14 June 2008 and expiring on 13 June 2010. In the circumstances, as will now be appreciated that sentence was served concurrently with the balance of the murder sentence after the expiration of its non-parole period.

Profound childhood deprivation

51. As I have already remarked, it can fairly be said that the offender is a person who falls into the category of having suffered profound childhood deprivation. The material supporting that conclusion is contained in the analysis of Wood J, in his Honour’s judgment of 3 June 1994 (at pages 8 to 9) and in the report of Dr Olav Nielssen (Exhibit 1) (page 6 – 7). Wood J summed up his findings on this issue, which I gratefully adopt, in the following terms:

Unfortunately, the history of offending was almost pre-ordained by the deprived background of [the offender]. He’s a young aboriginal man who is now only 19 years of age, who came from a home where alcohol abuse and neglect were always present. In fact, it is said that he was abandoned as an infant, placed in the care of a friend until he was aged 7, before being placed into the care of foster parents. His father died when he was relatively young and thereafter, although he returned to his mother’s home, he floated between various places, living with relatives and others. He started sniffing petrol, began to use alcohol and cannabis, and stopped going to school at around about 13 or 14 years. In fact one of the psychiatric reports suggests that he was expelled from school at that age after chasing another student around with a machete.

He spent a long period of time in institutions, including Minda and Mt Penang, and he has had little opportunity to bond to any significant figure.

52. It is also relevant to note that psychiatric and psychometric evidence was led before Wood J. His Honour was not satisfied that there was persuasive evidence of any psychiatric disorder or illness. The psychometric evidence suggested results indicative of a personality disorder of antisocial and aggressive characteristics. Importantly, his Honour recorded:

The testing also tends to show that he has weak emotional and behavioural controls and a low threshold for impulse discharge. One psychiatrist suggested a possible diagnosis of sociopathic personality disorder, but also offered other conflicting opinions.

Wood J seemed to accept the opinion of that psychiatrist, supported as it was by other material that the offender “has been culturally deprived and comes from a background where criminality, alcoholism, disturbed family relationships and violence are all too common”.

53. Dr Nielssen formed the view that the offender’s childhood was characterised by: significant neglect and disruption up to the age of 2; bereavement and rejection at the age of 9; unstable foster care placements; and extremely unfavourable and unsupported living environments thereafter.

54. He was also of the view that, other than the past history of a severe substance use disorder, the offender was not suffering from any psychiatric illness or mood disorder including any psychosis.

55. Dr Nielssen expressed the opinion that currently the offender would not meet the accepted criteria for the diagnosis of an antisocial personality disorder or a dissociative personality. He accepted that he may have in the past when he was sentenced by Wood J.

56. In Bugmy v The Queen (2012) 249 CLR 571; [2013] HCA 37, in a plurality judgment of six justices of the High Court, their Honours said (at 594 [43]):

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.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest … that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.  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.

Contrition and remorse

57. Mr Ozen submitted that I should be satisfied on the balance of probabilities that there was evidence of contrition and remorse in as much as the offender said to Dr Nielssen that “I have a responsibility to Mr Morrison”. I must say, with respect, this is the only material which is in any way suggestive of any degree of contrition or remorse. I am not satisfied that the applicant has established on the balance of probabilities these mitigating factors. As Mr Ozen acknowledged, the offender pleaded not guilty and relied upon self-defence as a complete defence to the murder charge. Reading the account he gave to Dr Nielssen as a whole, it is clear that he adheres to a version which exculpates him from responsibility for the death of Mr Morrison. And the significance of his assault on Mr Campbell should not be overlooked, although I accept his plea of guilty in respect of that matter acknowledges his legal, if not his moral responsibility.

58. I am not persuaded on the balance of probabilities that the offender has established that he is genuinely remorseful. Nor do I accept the statement that he is responsible for Mr Morrison in the context of the full account he gave to Dr Nielssen is evidence that he has in fact accepted moral responsibility for his offence.

Prospects of rehabilitation

59. I acknowledge that during the time he was at liberty and under the Extended Supervision Order, the offender obtained his white card for work in the construction industry, found work in that industry as a labourer, formed a de facto relationship, obtained stable accommodation and doubtless under the close supervision to which he was subject, remained free of substance abuse. There is no suggestion whatsoever on the evidence led at the trial or on sentence that intoxication of any type played a part in what happened on 29 June 2017. There is some force in the submission that on some measures he was leading a productive life.

60. I must say beyond these positive matters, Dr Nielssen does not proffer a bright prognosis on the questions of the offender’s prospects of rehabilitation and risk of reoffending. He makes the point that “recidivous homicides are exceptionally rare” (Exhibit 1; p 10). But of course the offender has by his own conduct brought himself into that rare category. Acknowledging the limitations of prospective assessment of the risk of further similar offending, Dr Nielssen states that the risk of the offender committing another homicide on release may be “due to a combination of individual tendencies and circumstances that usually cannot be predicted”. It would also depend upon the offender’s age and physical state, amongst other things, on release.

61. Doubtless the offender must be incarcerated for a large number of years which of itself makes the present assessment of future probabilities difficult. I am not satisfied that the evidence supports a conclusion that there are good prospects of rehabilitation and therefore little chance of re-offending. The absence of remorse, of course, is usually a poor prognostic factor for rehabilitation.

59. I accept the offender’s background of childhood deprivation does reduce somewhat his moral culpability for this offending. But I am also of the view, given his obvious propensity for the ready use of a knife, that he does present a danger to the public. This is a stark consideration in this case because of his history and because of the circumstances that notwithstanding the progress he had made, and his apparent sobriety on the day, he was completely unable to control his violent impulses involving the use of a knife to obtain redress in respect of, in this case, an imagined grievance.

Sentence on the assault on Mr Campbell

63. I will deal with the assault on Mr Campbell first. As I have said, that matter is aggravated by the offender’s criminal record and the consideration that it was committed as part of a course of criminal conduct which included the murder of Mr Morrison. However, despite the objective seriousness of the offending, I am satisfied for the reasons I have given, that the offender’s moral culpability is somewhat reduced. Moreover, I have not forgotten or overlooked the plea of guilty on arraignment in this Court. As court proceedings in respect of the offence were commenced before 30 April 2018, s 22 Sentencing Act as it stood before the 2017 amendments continues to apply. Given that the plea was entered at the first available opportunity after committal, I am of the view that the appropriate discount for the utilitarian value of the plea is 15 percent.

64. But for the discount I would have imposed a total term of about 16 months. Applying the discount, this is reduced to 13 months. As it will be necessary for me to accumulate the sentence for murder on this sentence, I have decided the better approach is to impose a fixed term of imprisonment which will be backdated to the date of arrest being 29 June 2017. I am not of the view that there are any special circumstances justifying an alteration in the statutory ratio between a non-parole period and the additional term. For these reasons I will when pronouncing the sentence impose a fixed term of 10 months for the common assault on Mr Campbell. This fixed term should be understood as representing the minimum period of incarceration justice would require for the assault on Mr Campbell.

Sentence for murder

65. I have already recorded that the Crown have not submitted that this case falls into the worst category of murder calling for the imposition of a life sentence. My findings in any event would preclude that.

66. It remains, however, that the maximum penalty of life imprisonment and the standard non-parole period of 20 years stand as important guideposts when fixing a sentence. However, sentencing law requires me to take into account all of the facts, matters and circumstances relevant to sentencing in this matter in order to fix the sentence appropriate to the offending and the offender. I have set out the matters relevant in this case in my reasons so far.

67. It needs to be said, other than the significant effect of the offender’s reduced moral culpability for this offending due to his childhood deprivation, there is very little else thrown up to mitigate the sentence. As I have already indicated, his clear propensity to resort to the use of a knife is a cause for real concern. It may be that the offender’s first three knife offences were influenced by intoxication with drugs or alcohol. But the same is not true of the fourth and fifth incidents. The fifth being the murder of Mr Morrison.

68. The fourth offending in Goulburn Correctional Centre is a very stark example of his inability to control his violent impulses. Likewise, the murder of Mr Morrison, as I have said. There is no suggestion in either of those matters that his powers of self-control were reduced by the disinhibition which comes with intoxication.

69. I am of the view that the sentence to be passed in this case must in accordance with the passage I have quoted above from Veen (No 2) and the passage I have quoted from Bugmy reflect the importance of protecting the community from the offender. I will remind myself that I am not empowered to impose a term of preventative detention. Nor is it permissible to punish the offender again for past offending.

70. I am also of the view that denunciation, retribution and general deterrence loom large as objects and principles of sentencing that have a role to play in this case. Given what I have said about childhood deprivation and attenuated moral culpability probably specific deterrence is of reduced importance. But nevertheless given the offender’s record, it must be borne in mind.

71. I have borne in mind the application of s 22A of the Sentencing Act. I have borne it in mind, but I am not of the view that this is a case where it is necessary, or appropriate to allow a specific discount in percentage terms. In the particular circumstances, the facilitation of the course of justice to which I have referred can only have a small effect on the outcome when one has regard to all the other facts, matters and circumstances relevant to sentencing.

72. I am required to fix a sentence having two parts, a non-parole period and an additional term. Mr Ozen submitted that I should find special circumstances and alter the statutory ratio between the non-parole period and the additional term to facilitate the offender’s rehabilitation upon release. However, I am not satisfied that I should accede to that submission. Necessarily, if released to parole, the structure of the sentence will allow ample time for supervision in the community for the purpose of rehabilitation.

73. A non-parole period is the minimum term which justice demands the offender serve in full time custody for this offending. As the offender from his previous experience already knows, no one can assume that an offender will be released to parole when first eligible. That decision depends upon the independent exercise of a statutory discretion by the parole authority. In no small part it will depend on the offender’s conduct in custody and the steps he takes to avail himself of such opportunities as are afforded him for rehabilitation during the non-parole period.

74. It is appropriate that I accumulate the sentence for murder partially on the sentence for assault to acknowledge the consideration that there were two victims of the offending and the criminality does not entirely overlap. For this reason alone it will be necessary to find special circumstances for the purpose of not altering but maintaining the statutory ratio.

75. I have had the benefit of the reference to six previous sentencing decisions in other matters where an offender has been sentenced for a second homicide. Not all of the cases involved a previous murder. Some involved a previous manslaughter and were concerned with sentencing the offender for a subsequent murder. These decisions have been of assistance. However, I think it unnecessary to set them out in detail in this judgment. I remind myself that the purpose of referring to comparable sentences is consistency in sentencing; that is consistency of principle, not numerical equivalence. Other sentences in broadly similar circumstances do not establish a range by which I am bound. Rather sentencing is an exercise in individual justice, in which the Court’s task is to fix the appropriate sentence for this offence and this offender. The comparable sentences will provide a yard stick to allow a sentencing judge to consider whether the proposed sentence is well out of step with the previous pattern of sentences established by the comparable decisions. I have considered those decision from this viewpoint and I am satisfied that the decision I am about the pronounce remains appropriate. I acknowledge that in five of those six cases the sentences passed are less than the sentence I am about to pass. The sixth case involving a higher sentence was a contract killing by use of a firearm and hardly comparable to the present circumstances.

76. I have decided that for the purpose of the totality principle, it is appropriate to accumulate the sentence for the murder of Mr Morrison on the sentence for the assault for Mr Campbell after three months. The sentences will be backdated to commence on 29 June 2017 when the offender was arrested and taken into custody.

77. Mr Johnson, I am required to inform you that the Extended Supervision Order made on 12 June 2015 is suspended during your term of imprisonment and will recommence to run upon your release, unless earlier revoked. The nature of your offending is such that you remain liable to a second and subsequent application by the State for a further order under the Crimes (High Risk Offenders) Act 2006 (NSW).

78. I convict you of the common assault of Scott Campbell on 29 June 2017 and I sentence you to a fixed term of imprisonment of 10 months, commencing on 29 June 2017 and expiring on 28 April 2018.

79. For the murder of David Morrison I sentence you to a term of imprisonment of 26 years and six months, having a non-parole period of 20 years, commencing on 29 September 2017 and expiring on 28 September 2037 with an additional term of 6 years and 6 months commencing on 29 September 2037 and expiring on 28 March 2044. You will first be eligible for parole after the expiration of the non-parole period on 28 September 2037.

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Decision last updated: 24 May 2019