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

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…

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 (No 8)

Details

AGLC: R v Johnson (No 8) [2019] NSWSC 613
Case: [2019] NSWSC 613
Decision Date: 24 May 2019

CaseChat Overview and Summary

The case of R v Johnson (No 8) involved the sentencing of the defendant, Johnson, for the crime of murder. The dispute centered on the appropriate sentence to be imposed, taking into account various mitigating and aggravating factors. The case was heard in the High Court of Australia.

The central legal issues the court needed to address were the appropriate considerations for sentencing in cases of murder, particularly in relation to the defendant's criminal record, moral culpability, and childhood deprivation. Additionally, the court had to determine whether the statutory ratio between the non-parole period and the additional term should be altered, and whether the defendant had demonstrated sufficient contrition and remorse. The court was also required to weigh the principles of denunciation, retribution, general deterrence, and specific deterrence, particularly in light of the defendant's moral culpability.

The court ruled that the statutory ratio between the non-parole period and the additional term should not be altered, maintaining the prescribed ratio of 1:3. It found that the defendant's moral culpability, while significant due to his profound childhood deprivation, did not outweigh the need for denunciation and retribution. The court held that the facts relied upon in sentencing must be established beyond reasonable doubt, and in this case, contrition and remorse were not made out on the balance of probabilities. The court further noted the defendant's limited prospects of rehabilitation and the danger he presented to society. The High Court concluded that the non-parole period should be set at 20 years, with an additional term of 6 years.

The final orders of the court were that Johnson be sentenced to a non-parole period of 20 years, with an additional term of 6 years, reflecting the statutory ratio and the court's consideration of the various sentencing principles and factors.

Orders