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Supreme Court 24 May 2019

R v Johnson (No 8)

[2019] NSWSC 613

Assault & violenceHomicide
CRIMINAL LAW SENTENCING MURDER CRIMINAL RECORD MORAL CULPABILITY CONTRITION AND REMORSE

Citation: R v Johnson (No 8) [2019] NSWSC 613
Court: Supreme Court of New South Wales
Date: 24 May 2019
Judge: Campbell J

Background

The offender was convicted of murdering David Morrison on 29 June 2017 in Beamish Street, Campsie, following a judge-alone trial. The offender stabbed Mr Morrison twice after forming the baseless belief that Mr Morrison and his companion, Scott Campbell, were stalking him with intent to ambush him. Campbell J found this belief had no rational foundation and that the two men's presence on the street at the same time was pure coincidence.

The offender was also charged with the common assault of Mr Campbell, which occurred immediately after the murder. He had pleaded guilty to the assault at the earliest opportunity in the Supreme Court, and that plea was maintained throughout.

The sentencing hearing on 10 May 2019 followed Campbell J's verdict of guilty for murder, delivered on 22 February 2019 in R v Johnson (No 7) [2019] NSWSC 148. This judgment addressed the appropriate penalties for both offences.

  • How should objective seriousness be assessed for a standard non-parole period offence such as murder, and where did this offending sit within the range?
  • Whether the offender's profound childhood deprivation reduced his moral culpability, and to what extent it should mitigate the sentence.
  • Whether the offender demonstrated genuine contrition and remorse.
  • Whether the offender's criminal record, including prior homicide, was a relevant sentencing consideration, and how to avoid imposing a fresh penalty for past offending while still accounting for the danger presented to the community.
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the additional term.
  • What weight should be given to the offender's facilitation of the course of justice, given his plea of not guilty to murder but his conduct in narrowing the trial issues.

Decision

Campbell J assessed the objective seriousness of the murder as above the midrange. The killing arose from a completely unfounded belief that the victim intended harm, and was carried out with a knife in a public place. The Court found no basis for reducing the objective gravity of the offending.

The offender had experienced severe childhood deprivation, and Campbell J acknowledged the obligation, confirmed in Bugmy v The Queen (2013) 249 CLR 571, to give full and undiminished weight to that background when assessing moral culpability. However, the Court found that the offender's moral culpability remained high, and that while deprivation was a mitigating factor, it did not substantially alter the sentencing outcome given the other circumstances.

The Court was not satisfied on the balance of probabilities that the offender had demonstrated genuine contrition or remorse. Campbell J also noted that the offender had a prior conviction for homicide, making this a case of recidivist serious violence. While the Court was careful not to impose a fresh penalty for past offending (consistent with Veen v The Queen (No 2) (1988) 164 CLR 467), the prior offending was relevant to the danger the offender represented to the community and to the reduced prospects of rehabilitation. The offender remained subject to an Extended Supervision Order made in 2015 under the Crimes (High Risk Offenders) Act 2006 (NSW).

The Court found no special circumstances warranting a departure from the standard statutory ratio between the non-parole period and the additional term. Campbell J acknowledged that comparable sentences in similar cases were generally lower, but was satisfied the sentence imposed remained appropriate given the specific circumstances, including the recidivist nature of the offending and the absence of remorse. A modest reduction was applied under s 22A of the Sentencing Act to reflect the offender's conduct during trial in narrowing the issues and thereby facilitating the course of justice, even though he had pleaded not guilty to murder.

Orders Made

  • The offender was convicted of the common assault of Scott Campbell on 29 June 2017 and sentenced to a fixed term of imprisonment of 10 months, commencing 29 June 2017 and expiring 28 April 2018.
  • For the murder of David Morrison, the offender was sentenced to imprisonment for 26 years and 6 months, comprising a non-parole period of 20 years commencing 29 September 2017 and expiring 28 September 2037, with an additional term of 6 years and 6 months expiring 28 March 2044.
  • The murder sentence was accumulated on the assault sentence after three months.
  • Both sentences were backdated to 29 June 2017, the date of arrest.
  • The offender was informed that the Extended Supervision Order made on 12 June 2015 was suspended during imprisonment and would recommence on release unless earlier revoked, and that the State retained the right to apply for a further order under the Crimes (High Risk Offenders) Act 2006 (NSW).

Key Takeaways

  • Under Bugmy v The Queen, the obligation to give full weight to profound childhood deprivation in assessing moral culpability does not diminish over time or with the seriousness of the offence, but that consideration does not necessarily produce a substantial reduction in sentence where other aggravating factors are present.
  • A prior conviction for homicide is directly relevant to the danger an offender presents to the community and to prospects of rehabilitation, but the sentencing court must take care not to use past offending as a basis for imposing a fresh penalty, consistent with the principle in Veen v The Queen (No 2).
  • Remorse and contrition must be established on the balance of probabilities before a sentencing court will treat them as mitigating factors; they are not presumed from a plea or from expressions of sympathy.
  • Narrowing the issues at a judge-alone murder trial, even without a guilty plea to that charge, can constitute a facilitation of the course of justice attracting a modest sentencing discount under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Comparable sentences serve as a yardstick for consistency of principle rather than as a binding numerical range; the Supreme Court confirmed that sentencing remains an exercise in individual justice, and departure from the common pattern may be warranted by the specific features of the offending and the offender.

Legislation and Cases Referenced

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

Cases
- Bugmy v The Queen (2013) 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