R v Johnson [2011] VSC 633

Supreme Court of Victoria|2011-12-08|Before: LASRY J

CRIMINAL LAW - Sentence - One count of murder - Sentencing consistent with jury verdict - Planned murder - Murder occurred in prison - Deceased a prosecution witness - Absence of remorse - Extensive prior criminal history - Whether parole will be granted if sentenced to life imprisonment.

1 Matthew Charles Johnson, on 29 September 2011, after a trial before a jury you were found guilty of the murder of Carl Williams. You murdered Williams on 19 April 2010 in the High Security Unit 1 in the Acacia section of Barwon Prison. On 27 October 2011, I heard submissions from the Crown and from Mr Stuart of counsel on your behalf. During those submissions your counsel told me that you maintain your innocence. The maximum penalty for murder is life imprisonment.

2 It is now my responsibility to sentence you for that crime consistently with the jury's verdict. I do so on the basis that you murdered Carl Williams, not out of any need to defend yourself as you claimed at your trial but because you knew Williams was providing assistance to the Victoria Police in relation to the murders of Terrence and Christine Hodgson at Kew in May 2004 and the case they were preparing against former police officer, Paul Dale, and inmate at Barwon Prison, Rodney Collins, for those murders. My own opinion is that your defence at your trial of self defence was fanciful.

3 The evidence the jury heard at your trial indicates that for some time prior to April 2010 you and Williams had been in the same unit at Barwon prison. You said in your evidence that you had known Williams for about 10 years and obviously maintained some contact with him. For a time at Barwon prison you shared a unit with Williams and his father George. After George Williams' release from custody on 20 June 2009 you shared the unit with Carl Williams and Thomas Ivanovic.

4 Williams had made two statements to police about the murder of Mr and Mrs Hodgson. The first was made in 2007. That statement was mainly to do with the corrupt relationship between Dale and Williams. In the second statement, made on 19 January 2009, Williams incriminated himself, Dale and Collins in the murder of the Hodgsons. He made a third statement on that same date which reflected him having listened to some telephone intercept material.

5 The statements that Carl Williams made in January 2009 about the Hodgson killings were based on discussions that he had had with investigating police in late 2008. To facilitate those discussions, Carl Williams was taken away from the prison for some days. As a result of his statements, charges of murder were laid against Paul Dale and Rodney Collins.

6 He told his father, George Williams, that he had explained to you that he was talking to investigators about police corruption. Carl Williams clearly wanted you to believe that he was not going to give evidence about other prisoners. He also told his father on a number of other occasions prior to his death that had been keeping you informed of what he was doing with police, and it is clear to me that he did that because he was concerned about how you would respond.

7 From then until his death in April 2010, Williams spent a lot of time in your company. How the prison authorities permitted that to happen is beyond me. No matter what you, Ivanovic or Carl Williams said or thought about his prison circumstances, on any view, you were a threat to his welfare as long as he was on the record as a Crown witness against Dale and Collins.

8 On 28 February 2010, Williams was again removed from Barwon Prison for a short time to meet the prosecutors for the committal proceedings for the case against Dale and Collins. He was described in the evidence as being hesitant about doing this and was worried about how it would be perceived by other prisoners and, in particular, about your response. George Williams gave evidence that Carl Williams had again explained to you and Ivanovic what he was doing, and that he continued to be concerned about leaving the prison.

9 In March 2010, several phone conversations in which you participated were recorded by prison authorities which demonstrate that you had an interest in what was happening with the committal proceedings against Dale and Collins. For example, a conversation was recorded in which you said that you were pleased to hear that the witness Nicola Gobbo was apparently not going to give evidence at the committal.

10 On 5 March 2010, police provided Carl Williams with an electronic copy of the statements that he had made about the Hodgson murders. On 6 March 2010, an electronic version of those statements was downloaded on to your computer in your cell. At around the same time, the brief against Dale and Collins was delivered to them in custody although the committal that was originally expected to commence in the week commencing 8 March 2010 was adjourned into April 2010, and was later adjourned until 10 January 2011.

11 The records from your computer illustrate that the last time you accessed the statements made by Carl Williams was on 17 April 2010, two days before you murdered him.

12 Williams' second and third statements were pivotal to the case which was to be put again Dale and Collins. In those statements, Williams described making the arrangements for the killing of Mr and Mrs Hodgson at the request of Dale. Williams described himself as the link between Dale and Collins.

13 The evidence also demonstrates, and you have not disputed, that you are either the leader, or a leader, of a group of prisoners known as the "Prisoners of War". One of the group's important principles is hatred of anyone, particularly any prisoner, who co-operates with police and informs against any person charged with criminal offences. Carl Williams knew about your position in that group and his concern about you knowing that he was assisting police is entirely understandable in that context.

14 It is implicit in the jury's verdict that they rejected your evidence that you believed Williams was never intending to go through with giving evidence against Dale and Collins. Certainly, the police were of the opinion that Williams would give that evidence if only to get the benefits that might flow as a result. The evidence of the solicitor, Robert Stary, raises some doubt about the evidence that Williams was to give against Collins, but I am satisfied that you believed there was a realistic chance that Williams would give evidence in accordance with his second and third statements against both Dale and Collins, and that you could not be seen to sanction him doing so.

15 On 19 April 2010, you, Williams and Ivanovic were released from your cells into the common area of your high security unit at about 8:10 am. Everything that occurred thereafter was recorded on CCTV. At about 12:30 pm, Williams returned from having a visit with his father. At 12:48pm, having earlier obtained the seat post from the exercise bike, you approached Williams from behind as he sat at a table reading a newspaper. The CCTV shows clearly that Williams had no idea you were there and about to attack him. You struck Williams once to the right hand side of the head causing him to fall off his chair. Once on the ground you struck him another seven times to ensure that he was dead. The strong likelihood is that he died before you finished striking him. The pathologist, Ms Melissa Baker, located injuries to the head of Williams consistent with at least five blows and her examination of the CCTV footage led her to conclude, as can be seen, some eight blows in total.

16 You left Williams where he fell for a short period of time, then returned to cover the immediate area of his injuries with a towel. You returned again and dragged his body into his cell where he lay dead until the alarm was raised at about 1:15pm by Prison Officer Gajic, after you told her that she should press her buzzer.

17 You said very little after the killing of Williams except to emphasise that you acted alone and to demonstrate disinterest in the reaction to Williams' death by saying, "What's the big deal? People die every day."

18 This was an appalling murder and is offending near the top of any notional range of offending. It was a killing which appears to demonstrate your belief that you have some special entitlement to kill when you think it appropriate or your ego demands it according to some meaningless underworld prison code. I am left with no choice but to punish what you have done with an appropriately heavy sentence.

19 Victim impact statements were presented on behalf of Dhakota Lee Williams, the daughter of the deceased man; George Williams, his father and Breanna Stephens who, as I understand it, is the step daughter of the deceased. Dhakota Williams' statement was read aloud to the Court and I have read the other two statements. The statements demonstrate what is perhaps obvious - that each of these people has been traumatised by the death of Carl Williams. I have taken these statements into account in fixing the sentence to be imposed on you.

20 On your behalf, Mr Stuart informed me that your instructions to him were that you did not wish him to review your personal background, family history and the like. However, from the record of the trial before me I know you were born on 9 August 1973 and you are therefore now 38 years of age. You originally came from the Dandenong area. Your father died when you were very young. Your education finished at Year 10 level. I watched you give evidence. Apart from the substance of what you said, you impressed me as intelligent and articulate. Those qualities seem to me to have been wasted on the life you have lived.

21 Your criminal record began in early 1991 when you were aged 18 years with motor vehicle theft and a weapons offence. By July of that year and before you turned 19, you were sentenced to imprisonment in the Magistrates' Court for theft and drug offences that were obviously serious offences.

22 Between 1991 and 2008, you had some 28 separate court appearances with convictions for an extremely large number of offences. Theft of motor vehicles and various other similar offences feature regularly in your history. You have convictions for weapons offences; for escaping from custody; and for various offences of violence. Those violent offences include armed robbery, aggravated burglary, intentionally cause injury, assault and, of course, the notorious contempt of court in the County Court in 2002.

23 On 26 November 2010, seven months after you murdered Williams, you were sentenced by His Honour Judge Chettle in the County Court for offences which included armed robbery, aggravated burglary, theft and serious firearms offences. The total effective sentence imposed on you by His Honour was a head sentence of 16 years with a minimum to be served before being eligible to apply for release on parole of 13 years. In sentencing you, His Honour said:

However, your extensive criminal history, together with your [offending conduct], demonstrate you to be a career criminal who is a real menace to society. You have not been specifically deterred by prior gaol sentences, your prospects for rehabilitation must be seen as effectively nil. The community needs to be protected from you and principles of general deterrence, specific deterrence and denunciation are the principle sentencing factors applicable to you.

24 Judge Chettle is an experienced criminal lawyer and judge and his opinions do not need my reinforcement but his Honour has, regrettably, been shown to have a clear insight into you and your prospects for any kind of rehabilitation. I respectfully agree with him.

25 In his submissions, Mr Stuart argued that because of your criminal history and the circumstances of this offence, whatever head sentence I impose on you is the sentence you will have to serve. He therefore submitted that I should not impose a life sentence on you because even if I fixed a minimum term, the Parole Board would never be prepared to release you and you would be certain to spend the rest of your life in gaol. On that basis, he argued that I should fix a numerical head sentence so that even if you were not considered for parole, at the conclusion of that head sentence, you would be able to be released.

26 I do not agree with that submission. As I said to your counsel, I am not prepared to sentence you on the basis that the Parole Board will decline to release you on parole at any time after your non-parole period has been served. You will serve a very long minimum term, but at the end of that period, anything is possible. Much will depend on how you conduct yourself over that time.

27 For the murder of Carl Williams you will be sentenced to life imprisonment. Pursuant to s 14 of the Sentencing Act 1991, I am required to fix a new non-parole period in respect of all of the sentences you are required to serve, including the sentence imposed on you by Judge Chettle. I fix that minimum period as 32 years which must be served before you become eligible to be released on parole. You will commence serving the minimum period immediately, and it will be calculated as having been served from this day, 8 December 2011.

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