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6
Supreme Court 8 June 2023

R v White

[2023] NSWSC 611

Homicide

Citation: R v White [2023] NSWSC 611
Court: Supreme Court of New South Wales
Date: 8 June 2023
Judge(s): Beech-Jones CJ at CL

Background

The offender pleaded guilty to the manslaughter of Dr Scott Johnson, a 27-year-old American mathematician, who died on the evening of 8 December 1988 at Blue Fish Point, North Head, Manly. Dr Johnson's body was found at the base of a cliff two days after his death. He had been punched by the offender, then aged just over 18, causing him to fall from the clifftop. The offender did not seek help or alert authorities after the fall.

Dr Johnson's death triggered more than three decades of grief and unanswered questions for his family and partner. The question of who was primarily responsible for his death was only definitively answered when the offender entered his guilty plea on 23 February 2023.

The procedural history was lengthy and complex. The offender had originally pleaded guilty to murder in January 2022, but that plea was set aside on appeal. The Court of Criminal Appeal found the refusal to allow withdrawal of the plea was erroneous. Following the successful appeal, the offender was arraigned again and pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted.

  • What sentencing principles apply when sentencing in 2023 for an offence committed in 1988?
  • What is the correct maximum penalty for manslaughter committed in December 1988?
  • What is the objective seriousness of the offending, and how does the offender's cognitive impairment affect that assessment?
  • What weight should be given to the offender's background, including youth, cognitive impairment, and a violent and dysfunctional upbringing?
  • How should the offender's remorse be assessed given his cognitive impairments?
  • Does the "ceiling principle" apply, and if so, how does it constrain the sentence?
  • What is the appropriate sentence, including the non-parole period?

Decision

The Chief Judge at Common Law applied sentencing principles as they stood at the time of the offending in 1988. The maximum penalty for manslaughter committed in December 1988 was taken to be 25 years imprisonment under s 431A(5) of the Crimes Act 1900 (NSW). The court found this to be a serious instance of manslaughter, noting in particular that the offender had delivered the punch that caused Dr Johnson to fall from the cliff, and had then failed to take any steps to assist him or notify authorities.

The offender's cognitive impairment was assessed as not reducing the objective seriousness of the offending. However, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571, the offender's youth at the time, the degree of his cognitive impairment, and his violent and dysfunctional background were all found to have contributed to the offending and to reduce his moral culpability. The court gave little weight to the offender's expressed remorse, because his cognitive impairments undermined confidence in its genuineness and depth.

The court addressed the victim impact statements from Dr Johnson's family and partner, all of whom described decades of raw grief and unanswered questions. The court acknowledged those harms as part of the harm done to the community by the offender's crime. It was careful to note that harm flowing from inadequacies in the original police investigation, including an apparent suggestion that Dr Johnson had taken his own life, was not attributable to the offender and could not be used to increase the sentence.

The "ceiling principle" applied because the offender had previously been sentenced for murder arising from the same death. That prior sentence set an upper limit on the sentence now to be imposed for manslaughter. The resulting sentence of 9 years imprisonment, with a non-parole period of 6 years, was structured to reflect this constraint while still appropriately addressing the seriousness of the offending and the relevant mitigating factors.

Orders Made

  • The offender was sentenced to 9 years imprisonment for the manslaughter of Dr Scott Johnson.
  • A non-parole period of 6 years was set, commencing 12 May 2020, with an additional term of 3 years commencing 12 May 2026 and ending 11 May 2029.
  • The sentence was taken to have commenced on 12 May 2020.
  • The offender will be first eligible for release on parole on 11 May 2026.
  • The sentence will expire on 11 May 2029.
  • The court noted its obligation under the Crimes (High Risk Offenders) Act 2006 (NSW) to advise the offender of that legislation's existence and its application to his offending.

Key Takeaways

  • When sentencing in 2023 for an offence committed in 1988, the Supreme Court applied the sentencing principles that were in force at the time of the offending, including the maximum penalty then applicable.
  • Cognitive impairment does not automatically reduce the objective seriousness of an offence; however, where that impairment, combined with the offender's youth and a violent and dysfunctional background, contributed to the offending, those factors can reduce moral culpability.
  • Under the "ceiling principle," a sentence imposed following a successful appeal against a more serious conviction must not exceed the sentence originally imposed for that more serious offence, even where the offender is ultimately convicted of a lesser charge.
  • Remorse receives limited weight in sentencing when cognitive impairment undermines confidence in the genuineness of that remorse.
  • Harm caused by failings in the original police investigation is not attributable to the offender and cannot inform the severity of the sentence; the court drew a clear boundary between the offender's criminal responsibility and the broader institutional shortcomings that compounded the family's suffering.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 431A(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25C, 30E(3), 44(1) and (2)
- Crimes (Life Sentences) Amendment Act 1989 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- DS v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- KT v R [2008] NSWCCA 51
- R v Blacklidge (NSWCCA, 12 December 1995, unrep)
- R v Gilmore (1979) 1 A Crim R 416
- White v R [2022] NSWCCA 241
- R v White [2022] NSWSC 525
- R v White [2022] NSWSC 11
- AJB v The Queen [2007] NSWCCA 51
- Paterson v R [2021] NSWCCA 273
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- Dulihanty v R [2013] NSWCCA 275
- R v Armstrong [2015] NSWCCA 273