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Supreme Court 3 May 2022

R v White

[2022] NSWSC 525

Homicide
CRIME SENTENCE MURDER PLEA OF GUILTY OFFENCE THAT OCCURRED IN 1988 OFFENDER ARRESTED IN 2020

Citation: R v White [2022] NSWSC 525
Court: Supreme Court of New South Wales
Date: 3 May 2022
Judge(s): Wilson J

Background

The offender pleaded guilty to the murder of Dr Scott Johnson, an American mathematics doctoral candidate, whose naked body was found on rocks at the base of a cliff at Blue Fish Point, North Head (Manly), in December 1988. Dr Johnson was 27 years old at the time of his death. The initial police investigation and a subsequent coronial inquest in 1989 concluded he had died by suicide. Two further inquests followed decades later, with the 2017 inquest ultimately finding that Dr Johnson died as a result of the actions of another person or persons.

The offender was not arrested until 2020, more than 31 years after the offence. The investigation had been prompted by conversations the offender's former wife reported having with him, in which he made remarks linking himself to what she understood to be Dr Johnson's death. The offender was 18 at the time of the offence and 51 at the time of sentencing.

A disputed facts hearing was conducted prior to sentencing. The offender contested aspects of the factual basis for the plea, including the reliability of his former wife's evidence about the conversations she reported.

  • Whether the court accepted the former wife's evidence of the offender's admissions beyond reasonable doubt, in circumstances where the defence challenged her credibility and motive.
  • What sentencing patterns and principles applied to a murder committed in 1988 but prosecuted in 2022, and how historical sentencing ranges should be applied.
  • How the 32-year delay between the offence and the arrest affected the sentence.
  • What weight should be given to the offender's age (18) at the time of the offence, his cognitive impairment, and his law-abiding conduct in the intervening decades.
  • What discount, if any, applied to the sentence for the guilty plea, given the disputed facts hearing.
  • How remorse was to be assessed and weighted.

Decision

Disputed facts hearing. Wilson J accepted beyond reasonable doubt that the offender's former wife had reported two conversations in which the offender made references to "poofter bashing" and to Dr Johnson. The defence argued her evidence was motivated by a financial reward and was undermined by the absence of any traceable newspaper articles she said had prompted those conversations. The Court found that the searches of media holdings were limited in scope and could not exclude the existence of such articles, and that the inconsistencies identified did not establish that the evidence was false or should be rejected to the criminal standard.

Applicable sentencing framework. Because the offence was committed in 1988, the Court applied sentencing patterns from that era, which resulted in lower penalties and more generous parole conditions than those that would apply to a murder committed today. The Court found no standard non-parole period applied, as the offence predated the legislative introduction of that mechanism on 1 February 2003.

Delay, age, and personal circumstances. The Court gave significant weight to the 32-year gap between offence and arrest, finding that the offender was no longer the young man who had committed the crime. He had lived a law-abiding life for 14 years, suffered from cognitive impairment, and was now in his fifties. The Court expressly declined to sentence him as though he were still the aggressive 18-year-old who had committed the offence, and also declined to treat the killing as a targeted hate crime on the basis that the evidence did not support that characterisation. The sentence was imposed on the basis of reckless indifference to human life.

Guilty plea discount. The discount for the guilty plea was affected by the offender having contested aspects of the factual basis for the plea at the disputed facts hearing, which reduced the utilitarian value of the plea.

Orders Made

  • The offender was sentenced to a term of imprisonment of 12 years and 7 months, commencing 12 May 2020 and ending 11 December 2032.
  • A non-parole period of 8 years and 3 months was fixed, expiring 11 August 2028, being the date of first eligibility for parole.

Key Takeaways

  • Where a murder was committed decades before prosecution, the sentencing court applies the sentencing patterns and principles that prevailed at the time of the offence, which in this case produced a materially lower sentence than would apply today.
  • Significant delay between offence and arrest can reduce the sentence where the offender has, in the intervening period, lived a law-abiding life and undergone genuine change such that the person before the court for sentencing is not the same person who committed the crime.
  • A disputed facts hearing, even where the prosecution's account is accepted, diminishes the sentencing discount otherwise available for a guilty plea by reducing the utilitarian value of that plea.
  • Cognitive impairment is a relevant personal circumstance at sentencing, capable of bearing on the appropriate sentence even where the offence itself is serious.
  • In dismissing the challenge to the former wife's evidence, the Supreme Court confirmed that unexplained gaps in archived media searches did not, of themselves, establish fabrication to the criminal standard, particularly where the scope of those searches was acknowledged to be limited.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Adams (No 7) [2017] NSWSC 179
- R v Afu; R v Caleo (No 17) [2018] NSWSC 1127
- R v Campbell (Supreme Court (NSW), Abadee J, 3 September 1993, unrep)
- R v Hungerford (Supreme Court (NSW), Newman J, 17 August 1993, unrep)
- R v McDonald (Supreme Court (NSW), Levine J, 12 March 1993, unrep)
- R v Royall (Court of Criminal Appeal (NSW), Gleeson CJ, Wood J, Newman J, 12 July 1989, unrep)
- R v TNT [2002] NSWSC 537
- R v Valiukas [2009] NSWSC 808
- R v Warwick (No 94) [2020] NSWSC 1168
- R v White [2022] NSWSC 11
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27