Citation: R v Johnson (No 5) [2017] NSWSC 1169
Court: Supreme Court of New South Wales
Date: 1 September 2017
Judge(s): Button J
Background
The offender was charged with the murder of a 52-year-old man following an altercation on a main road in Tamworth on the evening of 15 May 2015. The incident arose from a drunken dispute at a housing commission flat involving the offender, the deceased, and two others, all of whom were affected by alcohol. What began as a trivial argument escalated when the offender returned across the road after being taunted as he walked away.
The offender delivered at least one punch to the deceased's head with sufficient force to be heard at a distance, followed by several stomping blows to the head and torso. Unknown to the offender, the deceased had a grossly enlarged and vulnerable spleen, the result of chronic alcohol abuse, which was lacerated by the assault. The deceased died from his injuries, having also refused medical attention at the scene.
After a six-week jury trial, the offender was found not guilty of murder but guilty of manslaughter. Button J then conducted separate sentencing proceedings.
Legal Issues
- What findings of fact were open to the sentencing judge consistently with the jury's verdict of manslaughter rather than murder?
- What objective seriousness should be attributed to the manslaughter, given that the victim's fragile health and his refusal of medical treatment both substantially contributed to his death?
- What weight should be given to mitigating factors, including the offender's pre-trial offer to plead guilty to manslaughter, his deprived Aboriginal background, the effects of childhood trauma, and his promise to give evidence against another person?
- Whether special circumstances existed warranting a departure from the standard ratio between non-parole period and head sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Decision
Button J made his own findings of fact based on the trial evidence, consistent with the jury's verdict. He was satisfied beyond reasonable doubt that the offender intended to inflict actual bodily harm, evidenced by the number, force, and location of the blows, but he could not find that the offender intended to kill or cause grievous bodily harm. The court was therefore bound by the De Simoni principle not to punish the offender for any greater offence than manslaughter.
His Honour identified three substantial contributions to the death: the offender's assault, the deceased's pre-existing and extreme ill-health, and the deceased's refusal of ambulance treatment at the scene. Although the violence was serious and brazen, occurring on a busy regional road before multiple witnesses, the offender's lack of knowledge of the victim's vulnerability and the absence of any weapon or premeditation tempered the objective gravity of the offence.
On mitigation, Button J accepted that the offender's pre-trial offer to plead guilty to manslaughter carried genuine weight, as did his expressed remorse and intention to give evidence against another person involved in related offending. Applying the principles in Bugmy v the Queen, the court recognised that the offender's deprived Aboriginal background, including repeated sexual assaults suffered in childhood, contributed to the psychological difficulties underlying his conduct, without diminishing the value of the victim's life.
Special circumstances were found to exist, reducing the non-parole period below the standard statutory proportion, to allow adequate supervision and rehabilitation upon the offender's release. The head sentence was set at six years with a non-parole period of four years.
Orders Made
- The offender was convicted of manslaughter.
- Head sentence of six years' imprisonment imposed, with a non-parole period of four years.
- Both terms backdated in full to 17 May 2015 (the date of arrest).
- Earliest eligible release to parole: 16 May 2019.
Key Takeaways
- Consistent with R v Isaacs, a sentencing judge is not required to identify the jury's precise pathway to a manslaughter verdict; the judge must make independent findings of fact provided those findings are consistent with the verdict returned.
- Where multiple factors substantially contribute to a victim's death alongside an offender's assault, including the victim's hidden pre-existing medical condition and the victim's own refusal of treatment, the objective gravity of the homicide may be moderated accordingly, though the assault need only substantially contribute rather than be the sole cause.
- Applying Bugmy v the Queen, the Supreme Court acknowledged that an Aboriginal offender's history of profound childhood deprivation and trauma is a relevant mitigating factor in sentencing, while emphasising that this recognition does not diminish the equal value accorded to the victim's life.
- A pre-trial offer to plead guilty to a lesser offence, made before trial proceeds, retains mitigating weight at sentencing even where the offender contests the more serious charge and is ultimately convicted of the lesser offence after trial.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) justified a non-parole period representing a smaller proportion of the head sentence than the statutory norm, reflecting the rehabilitation needs of the offender upon return to the community.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 23
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Cases
- Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Isaacs (1997) 41 NSWLR 374
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Cardoso [2003] NSWCCA 15
- R v Manevski [2016] NSWSC 1465
- R v Oinonen [1999] NSWCCA 310
- R v Previtera (1997) 94 A Crim R 76
- R v XX [2017] NSWCCA 90
- RJT v R [2012] NSWCCA 280