R v Johnston

Case [2007] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JOHNSTON

[2007] SASC 300

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice Kelly)

17 August 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

Appeal against sentence - appellant pleaded guilty to the manslaughter of her infant son by criminal negligence - sentencing judge sentenced the appellant to imprisonment for 10 years and six months with a non-parole period of six years - whether sentence was manifestly excessive - whether judge sentenced the appellant on incorrect basis - whether too much importance placed on need for general deterrence - whether circumstances personal to the appellant were given adequate weight.

Held (by majority):  the starting point used to determine sentence was too high - sentence was manifestly excessive - appeal allowed - sentence reduced to imprisonment for seven years and six months with a non-parole period of four years and six months.

R v Weinman (1987) 49 SASR 248; Nydam v R [1977] VR 430; R v Crabbe (1985) 156 CLR 464; R v Foster (No 2) [2001] SASC 154; R v Lavender (2005) 222 CLR 67; R v lavender (2004) 41 MVR 492, discussed.
Wilson v The Queen (1992) 174 CLR 313; R v Tomac (1996) 67 SASR 376; R v Adomako [1995] 1 AC; Yardley v Betts (1979) 22 SASR 108; R v McLachlan [2004] SASC 277; R v Goulding [2007] SASC 60, considered.

R v JOHNSTON
[2007] SASC 300

Court of Criminal Appeal: Nyland, White and Kelly JJ

  1. NYLAND J:          I have read the draft reasons of White J.  I agree with the substance of those reasons but wish to add some further remarks.  The circumstances of the appellant’s offending are described by White J, from which it is clear that this was a very bad case of neglect of a child.  It is therefore understandable that the sentencing judge took a serious view of the appellant’s conduct.  In my opinion, however, the judge, in categorising this case as the most serious of its type, gave insufficient weight to the evidence as to the appellant’s background and poor parenting skills, which provide some explanation for the events which resulted in the death of this child. 

  2. Dr Raeside described the appellant’s long-standing difficulties from suffering physical and sexual abuse in her childhood.  She ran away from home at an early age and lived on the streets whilst abusing heroin and amphetamines.  She had been involved in abusive relationships which included that with the father of six of her children.  She had a limited education and in one of his reports, Dr Raeside expressed concerns about her intellectual ability, although his primary diagnosis was of an underlying borderline personality disorder.  Mr Mead submitted…

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AGLC
R v Johnston [2007] SASC 300
Case
[2007] SASC 300
Decision Date

CaseChat Overview and Summary

In the case of R v Johnston, the appellant, Vicki Marie Johnston, appealed against the sentence imposed on her for the manslaughter of her infant son, K, by criminal negligence. The sentencing judge had sentenced Johnston to imprisonment for 10 years and 6 months, with a non-parole period of 6 years. Johnston argued that the sentence was manifestly excessive and that the judge had sentenced her on an incorrect basis, among other grounds. The central issues before the court were whether the starting point for the sentence was too high, whether the judge had based the sentence on incorrect principles, and whether the need for general deterrence had been overemphasised compared to the personal circumstances of Johnston.

The court found that the starting point used by the sentencing judge was too high and that the sentence was manifestly excessive. The court acknowledged that the neglect leading to the child's death was severe, but argued that the sentencing judge had not adequately considered the personal circumstances of Johnston and had placed too much emphasis on the need for general deterrence. The court noted that Johnston had been made aware of the dangers of malnutrition from a previous incident involving another child. The comparison with other sentences for manslaughter in similar cases further indicated that the starting point of 12 years was excessive. As a result, the appeal was allowed and the sentence was reduced to imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months.

In conclusion, the court allowed the appeal and reduced the sentence imposed on Johnston. The court substituted a sentence of imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months, effective from the date Johnston was taken into custody. This decision highlights the importance of considering both the gravity of the offence and the personal circumstances of the offender when determining an appropriate sentence. The court's decision also underscores the need for consistency in sentencing, particularly in relation to the starting point for sentences in cases of manslaughter by criminal negligence.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing of this appeal, counsel for the appellant developed three main submissions. Firstly, it was submitted that the sentencing Judge wrongly assessed the facts of this case by categorising the appellant’s offending as amongst the most serious of its type. Secondly, it was submitted that in finding a deliberate failure to obtain medical treatment for K on the part of the appellant and in finding she was aware of the potential serious consequences of the failure to feed the child or obtain medical treatment for him, the sentencing Judge effectively sentenced the appellant on the basis of a reckless murder and not on the basis of manslaughter by criminal negligence. Thirdly, it was argued that a comparison of the sentence imposed in this case with sentences for manslaughter imposed in this Court since 2000 indicates in itself that the sentence was excessive. Closely allied to this submission was the argument that even if no precise error could be identified, the comparison with the schedule of other cases indicates that the starting point of 12 years adopted by the sentencing Judge was manifestly excessive.Background The circumstances of the appellant’s neglect that ultimately caused the child’s death were particularly serious. K was born at the Alice Springs Hospital on 13 April 2005. He was seven weeks old on 1 June 2005, the date of his death. The sentencing Judge found that the appellant’s neglect leading to K’s death started from the time of his birth. An autopsy revealed that the cause of the child’s death was the combined effect of malnutrition and dehydration, with possible hypothermia. The baby died in a motor vehicle driven by the appellant from Melbourne to Alice Springs. Such was the baby’s condition that he weighed significantly less than his birth weight seven weeks earlier. The sentencing Judge found that it would have been blatantly obvious to any reasonable observer that the baby required urgent medical attention. The sentencing Judge referred to the appellant’s neglect of another of her children, TJ, about two and a half years prior to K’s birth. TJ was found to be suffering from severe malnutrition shortly after her birth. As a result of this earlier episode, the sentencing Judge found that the appellant had been made fully aware of the seriousness of the effects of malnutrition upon the child. Her Honour found that this was not a case of a new mother struggling with a newborn baby and armed with insufficient knowledge about caring for the baby. Indeed, the evidence pointed to multiple interventions by medical and welfare authorities in an attempt to ensure that the child, K, received adequate food and medical attention. There was evidence that the appellant in May 2005 not only failed to cooperate with the authorities who tried to persuade her to have K admitted to hospital, but refused all other efforts to assist. She attempted to evade and avoid the authorities, eventually leaving Alice Springs on 19 May 2005.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The judge thought it appropriate to exercise leniency in the fixing of the non-parole period, first, because the appellant is, while in custody, deprived of regular contact with her other children, and secondly, so as to allow a longer period of supervision upon release from custody. I agree that such an approach is appropriate in this case. Accordingly, I would fix a non-parole period of four years and six months.Conclusion For the reasons given above, I would allow the appeal. I would set aside the sentence imposed by the judge. I would substitute a sentence of imprisonment of seven years and six months and would fix a non-parole period of four years and six months. Both the sentence and the non-parole period should be taken to have commenced on 26 July 2006, being the date upon which the appellant was taken into custody.KELLY J:Introduction On 26 July 2006 the appellant, Vicki Marie Johnston, pleaded guilty to the manslaughter of her infant son, K, who died on 1 June 2005. On 6 November 2006 a judge of this Court sentenced her to imprisonment for 10 years and six months. The sentencing Judge fixed a non-parole period of six years. The appellant appeals the sentence on the ground that it is manifestly excessive. At the hearing of this appeal, counsel for the appellant developed three main submissions. Firstly, it was submitted that the sentencing Judge wrongly assessed the facts of this case by categorising the appellant’s offending as amongst the most serious of its type. Secondly, it was submitted that in finding a deliberate failure to obtain medical treatment for K on the part of the appellant and in finding she was aware of the potential serious consequences of the failure to feed the child or obtain medical treatment for him, the sentencing Judge effectively sentenced the appellant on the basis of a reckless murder and not on the basis of manslaughter by criminal negligence. Thirdly, it was argued that a comparison of the sentence imposed in this case with sentences for manslaughter imposed in this Court since 2000 indicates in itself that the sentence was excessive. Closely allied to this submission was the argument that even if no precise error could be identified, the comparison with the schedule of other cases indicates that the starting point of 12 years adopted by the sentencing Judge was manifestly excessive.Background The circumstances of the appellant’s neglect that ultimately caused the child’s death were particularly serious. K was born at the Alice Springs Hospital on 13 April 2005. He was seven weeks old on 1 June 2005, the date of his death. The sentencing Judge found that the appellant’s neglect leading to K’s death started from the time of his birth. An autopsy revealed that the cause of the child’s death was the combined effect of malnutrition and dehydration, with possible hypothermia. The baby died in a motor vehicle driven by the appellant from Melbourne to Alice Springs. Such was the baby’s condition that he weighed significantly less than his birth weight seven weeks earlier. The sentencing Judge found that it would have been blatantly obvious to any reasonable observer that the baby required urgent medical attention.

Ratio Decidendi

Legal Principle Established

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