s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW)
ss 21A(3)(i), 23
Cases Cited: Bugmy v the Queen (2013) 249 CLR 571
[1999] HCA 54
The Queen v De Simoni (1981) 147 CLR 383
Source
Original judgment source is linked above.
Catchwords
s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW)ss 21A(3)(i), 23
Cases Cited: Bugmy v the Queen (2013) 249 CLR 571[1999] HCA 54
The Queen v De Simoni (1981) 147 CLR 383
Judgment (15 paragraphs)
[1]
REMARKS ON SENTENCE
Introduction
On 11 April 2017, Steven John Johnson (the offender) was arraigned in the Supreme Court sitting at Tamworth before a jury panel and me. The indictment contained four counts, all alleged to have occurred on 16 May 2015, and the second to fourth counts all expressed to be in the alternative.
The primary count alleged that the offender had murdered Kenneth Matthews (the deceased); the second count explicitly averred the manslaughter of the same person; and the third and fourth counts alleged assault causing the death, in its aggravated and non-aggravated forms, of the same person. The offender pleaded not guilty to all counts, and a trial by jury of six weeks' duration ensued.
On 17 May 2017, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. No verdicts were taken, of course, on the third and fourth counts.
The proceedings on sentence took place before me on 30 August 2017 in the same courthouse, and it falls upon me to sentence the offender for the offence of manslaughter today.
In light of the explicit finding of the jury that the offender was not guilty of the offence of murder, I have borne firmly in mind the principle that a person cannot be punished for an offence greater than that of which he or she is to be convicted: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
I have also borne in mind the principle that it is not my role to try to discern the basis (or bases) upon which the jury returned a verdict of the lesser form of homicide. Rather, my role is to come to my own findings of fact, based upon the evidence in the trial and the proceedings on sentence, so long as those findings of fact are consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374.
Finally, all of the findings of fact that I shall discuss shortly are based on the proposition that matters of aggravation must be proven by the Crown beyond reasonable doubt, but matters of mitigation need only be proven by the offender on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
Objective features
Early in the evening of Friday 15 May 2015, a social event took place at the small housing commission flat of Ms Shannon Johnson, the sister of the offender. That apartment was located in the southern part of Tamworth, and although she did not live on Goonoo Goonoo Road (another name for a portion of the New England Highway), she lived on a cross street very close to that main road.
Present at the social event was the hostess Ms Johnson; her friend and some time romantic partner, the deceased, then aged 52 years; the offender, then aged 37, and a visitor from out of town, Mr Stephen Johnson. (In order to differentiate him clearly from the offender, throughout the whole of the trial he was known without any disrespect by his nickname of "Spider" Johnson, and I shall maintain that convention in these remarks.)
Regrettably, all of the persons present at that social event, and indeed a substantial proportion of their friends and associates who gave evidence in the trial, suffered from significant problems with alcohol and prohibited drugs. I am satisfied that all of the four persons present at the social event were affected by alcohol, albeit to varying degrees.
A drunken dispute developed between the deceased and Spider Johnson about the possession of a Quirindi Grasshoppers rugby league jersey, which was very similar in appearance to a South Sydney Rabbitohs jersey. I accept that, at first, the offender asked the other two men to stop bickering and to lower their voices, in particular because his sister had only recently obtained her flat, and he was concerned that noise complaints from neighbours could cause her difficulties in that regard. When the argument did not subside but rather escalated, the offender took it upon himself to drag the deceased outside of the apartment, and deposit him some distance away. That forceful act was born of annoyance and exasperation, rather than any malicious intent. I also accept that it was not done in a way that caused any significant injuries to the deceased.
After the removal of the deceased by the offender, a confused melee took place outside the apartment between the offender, the deceased, and Spider Johnson. At that stage, I am satisfied that each man applied force to the other, no one really got the better of anyone else, and the offender could not confidently be described as the aggressor. Again, I do not believe that anything other than very minor injuries were caused to the deceased at that stage.
The social event having soured, the offender decided to leave. He re-entered the small apartment, shouldered his backpack, and put on the football jersey (it is not clear whether he believed that he was somehow entitled to it, or whether he believed that that was the way to put an end to the whole dispute, or whether he did that simply to aggravate the other two men). In accordance with his decision to leave, he began to walk on the eastern footpath of Goonoo Goonoo Road in a northerly direction towards the centre of Tamworth.
By that stage his sister, the deceased, and Spider Johnson were all on the median strip of the highway. That should have been the end of an ugly but trivial incident. Regrettably, one of the men on the median strip called out to the offender in insulting terms as he walked away. Even more regrettably, rather than continuing to walk away from that immature provocation, the offender turned around, put the backpack down on the eastern footpath, and walked purposefully back to where the three others were standing.
What happened next was explored by defence counsel then appearing in the trial at length, and the evidence was undoubtedly confused and confusing. Nevertheless, I am satisfied to the criminal standard that the offender delivered at least one punch to the head of the deceased with sufficient force for a "crunching" sound to be heard by an uninvolved and truthful witness standing some distance away. The deceased went to the ground quite quickly, and was in no position to defend himself. After that, the offender delivered at least several stomping blows with his feet to the head and torso of the deceased. My finding in that regard is based not only on the evidence of a number of prosecution witnesses; it is also derived to some degree from what the offender himself admitted in the witness box during the trial.
At the time, the offender did not intend to kill or to inflict grievous bodily harm on the deceased. Nor was there the slightest premeditation in what he did, at least until he put the backpack down and commenced to cross the road. But he did intend to inflict actual bodily harm: that is established by the number of blows, their forcefulness, and their location on the person of the deceased. Furthermore, the offender was not acting in defence of himself or of his sister. Rather, he had simply had enough of the behaviour of the deceased, and lost his temper.
Completely unbeknown to the offender, and despite the reasonably healthy appearance of the deceased, the latter gentleman was in fact in very fragile health. Indeed, his health was so precarious that, as at that weekend, he had a life expectancy that was to be measured in months, not years. Sadly, his infirmity was chiefly the result of his own chronic abuse of alcohol.
At the time of the assault, neither the offender, nor the deceased, nor Spider Johnson, nor Shannon Johnson, was aware that the blows inflicted by the offender on the deceased lacerated, in a tiny way, his grossly enlarged and vulnerable spleen. There is no question but that the violence inflicted by the offender upon the deceased substantially contributed to his death. But nor is there any question but that the fragile state of health of the deceased was a second substantial contribution to that tragic outcome.
A large number of witnesses saw these acts of brazen and serious violence occurring on a main road of a regional centre on a Friday evening. Many of them were moved to contact 000, and at least one of them was distressed by the brutality of what she saw. Police and ambulance services arrived, and the situation was eventually calmed. The offender, although judged by police to be significantly affected by alcohol, did not flee, and was cooperative with them.
Although as I have said the internal injuries suffered by the deceased were hidden to all, he did have an obvious gash to his head. It is noteworthy that the deceased rejected the firm suggestion of an ambulance officer that he travel with her to hospital to have his injuries seen to. One cannot be entirely sure whether, if he had agreed, his life may have been saved, because the damage may already have been irreparable. Nevertheless, I approach the matter on the basis that that refusal by the deceased was a third substantial contribution to his death.
The incident having come to an end, Spider Johnson and the deceased travelled to a block of flats at which they had many friends. Sadly, many of those people were alcoholics and drug addicts as well. Although the deceased consumed more alcohol, and prohibited drugs, throughout the course of that night, I do not accept that any further violence was visited upon him. For a period of many hours, no one thought any more of the beating that the offender had administered to the deceased on the median strip of Goonoo Goonoo Road.
The next morning, the deceased suddenly experienced enormous pain. That was as a result of his spleen splitting open (to use a layperson's term), and him suffering extensive internal bleeding as a result. Although strenuous efforts were made to save his life by medical staff at Tamworth Base Hospital, he died an excruciating death on the evening of Saturday, 16 May 2015.
The following day, the offender was arrested, exercised his right to silence, and was charged with murder. He has been in custody ever since.
[2]
Objective seriousness
Having recounted the facts of what occurred, I turn to assess the seriousness of what the offender has done.
Manslaughter carries a maximum penalty of imprisonment for 25 years. That is the greatest maximum penalty known to the criminal law of this State other than life without possibility of parole. No standard non-parole period has been set by Parliament. The offence is always a crime of significant gravity, featuring as it does the criminal taking of a human life. Having said that, it is also a notoriously varied offence, in that it can be committed in so many different ways, both legally and factually, and in so many different circumstances. The inevitable result of its variety is that the offence of manslaughter will call for varied punishments.
Here, the offender committed an unlawful and dangerous act. As for the latter, repeatedly and forcefully kicking any person - even a perfectly well person - to the head and torso whilst that person is defenceless on the ground is patently a highly dangerous thing to do. An episode of significant violence, wantonly committed in a public place, substantially contributed to the death of the deceased. The context leading up to that violence was nothing more than a childish argument about a football jersey, and shouted insults that were just as childish. Because the offender gave into his mounting frustration, exasperation, loss of temper, and anger, a fellow human being has died, without any justification; indeed, completely senselessly.
Objectively, this must be assessed as a serious example of the offence of manslaughter.
[3]
Subjective features
I turn now from a discussion of the offence to a discussion of the person who committed it.
[4]
General background
The offender was born in November 1977, and accordingly was aged 37 as at the date of the offence and is now 39. An Aboriginal man, his childhood was blighted by the mental illness of his father, which culminated in that gentleman taking his own life when the offender was in his late teenage years. I accept without reservation that that tragedy has cast a shadow over the life of the offender ever since. His family moved around a great deal whilst the offender was a child, with the result that his schooling was very disrupted and academic success was difficult. I also accept the sworn evidence of the offender that he and his sister were victims of racist abuse from others whilst at school. It was at that stage that the offender commenced to be an angry person who solved problems with his fists. Having said that, it seems that the time that the offender spent at an Aboriginal college was one of happiness and significant academic achievement on his part.
Even more damaging to the psychological development of the offender than those negative factors was the fact, established to my satisfaction on the balance of probabilities, that he was repeatedly sexually assaulted as a child. That combination of factors - a childhood disrupted by the mental illness of his father, culminating in his tragic death; an unsatisfactory education; and the inevitable corrosive effects upon a victim of child sexual assault - has led to the offender developing psychological problems; in particular, chronic depression. That in turn has led to his abuse of alcohol over many years, and the more recent abuse of prohibited drugs, including the pernicious drug crystal methylamphetamine, known in Australia as ice. It has also led to the young man who responded to racism forcefully becoming a chronically violent adult, a topic to which I shall return later.
[5]
Utilitarian discount
A vexed question in the proceedings on sentence was whether the offender should receive any utilitarian discount for his formal offer to plead guilty to the offence of manslaughter, by way of unlawful and dangerous act, a little under two weeks before the trial commenced.
I accept that, in the usual course, if an offer is made before trial to plead guilty to the offence of which one is ultimately found guilty, such an offer should result in a utilitarian discount, even though the offer was rejected, and a lengthy trial actually proceeded: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15. I also accept that such a discount can be granted even if, on arraignment at the commencement of the trial, the offender pleaded not guilty to the offence of which he or she had previously accepted guilt: R v Oinonen at [13]; R v Cardoso at [20].
But the complication here is not only that the offender called a witness in the defence case at trial in an effort to raise a reasonable doubt about the physical element of causation (which was a necessary ingredient of all four counts on the indictment, including manslaughter, of course). It is also that he gave evidence on oath in the trial, and his position then was that he had been acting in defence of his sister when he returned to the median strip; again, if that had raised a reasonable doubt in the minds of members of the jury, that would have led to a verdict of not guilty of the offence of which he has been found guilty.
As I have said in a separate context, it is not easy to accept that a utilitarian discount should be granted in such circumstances: R v Manevski [2016] NSWSC 1465 at [30]. Having said that, just as I did in that other context, I think that I should approach this question with a degree of caution, and accept the position conveyed in the proceedings on sentence by the learned Crown prosecutor. In a nutshell, that position was that a utilitarian discount should be granted, but I should regard it as "eroded" by the fact that the offender actually denied his guilt on oath at the trial.
After reflection, I accept that proposition. In short, I propose to grant a discount on the starting point of the head sentence that I would have imposed of 10%, in order to reflect the utilitarian value of the offer made by the offender to plead guilty to the offence of which he was subsequently found guilty.
[6]
Further discount for assistance
Separately, defence counsel submitted on sentence that the firm intention of the offender, confirmed on oath in the witness box, is to give evidence against the man who sexually assaulted him as a boy. Counsel submitted that that should lead to a further discount, pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). He invited my attention to two decisions of the Court of Criminal Appeal, in which the proposition that a witness to a crime, and indeed a victim of a crime, can be granted such a discount was discussed at length: RJT v R [2012] NSWCCA 280; R v XX [2017] NSWCCA 90.
I do respectfully think that the extension of the statutory discount to the position of a victim of an offence goes beyond how the section was understood for many years. Having said that, I am bound, of course, by the developing jurisprudence of the highest criminal court of this State.
As well as that, I accept that the circumstances of this case separately argue in favour of granting the discount: the offender has confirmed that he will give evidence twice if necessary (once in any trial in which he is the averred victim, and once as a tendency witness); giving evidence of such offences before a courtroom full of strangers is for any person, child or adult, unquestionably a very difficult process; and the particular offence in question is a great social evil, which works severe long-term damage to its victims, the true extent of which is only beginning to be understood.
I shall not pause to analyse at length the matters that Parliament has mandated I must take into account. Suffice to say, I think that the evidence the offender has sworn he will give will be significant and useful; the Crown has not disputed the truthfulness of that evidence, nor its completeness nor reliability; the proposed assistance is significant; it has been delayed for years, but that is hardly to be held against the victim of child sexual assault; the offender has not obtained any benefits of which I am aware from his revelations; it is possible that his status as a Crown witness will make his incarceration more difficult; on the evidence before me there is no risk of injury or danger to the offender or his family beyond that; and, finally, although the crimes of which the offender will give evidence are not the crime that he committed, to my mind they are bound up with it. I say that because they are part of the psychological damage he has suffered, which in turn has led him to be a person prone to violence.
In short, I propose to discount the starting point of the head sentence by a further 10% for the assistance that the offender has sworn he will provide to the criminal justice system in the future.
[7]
Criminal record
As I have said, the events of 15 May 2015 were not an unfortunate exception in the life of the offender; quite the contrary. His criminal record in three States shows that violence has been a part of his life for many years. It is true that all of those offences have been resolved in the lower courts, and many of them have resulted in non-custodial penalties. I also infer, to adopt a phrase used in the trial in explaining the criminal record of one of the witnesses, that many of the offences committed by the offender in the past were a combination of "drunkenness and stupidity".
Nevertheless, the offender has shown himself over many years to be a person who deals with others by inflicting force and pain upon them when it suits him. His criminal record disentitles him to leniency. It also calls into question the degree to which this man, when ultimately released, can refrain from endangering members of the community again.
[8]
Remorse
Turning now to the question of remorse, there are factors that point both ways.
On the one hand, as I have said, the offender pleaded not guilty to all counts at the start of the trial. He called an expert witness in an effort to cast doubt on an essential element of all offences. He gave evidence, rejected by the jury and by me, that he did what he did out of concern for his sister.
On the other hand, there is the offer to plead guilty to manslaughter made many months ago. There is also the sworn evidence of the offender on sentence two days ago that he is troubled to think that he is responsible for taking a man's life. He also gave evidence that his own suffering over the past two years is nothing compared to the suffering felt by the family of the deceased. There is also the fact that I assess the evidence of the offender in the trial as to his actions (if not his motivations) as being basically truthful. A further fact suggestive of remorse is that, in his evidence on sentence, the offender impressed me as an intelligent and insightful man who has come to see that his life must radically change.
The overarching factor, however, is that for two years the offender was imprisoned, bail refused in maximum security, with a charge of murder hanging over his head. He must have known that his violent actions meant that, if he were found guilty of that offence, his life would be ruined by a sentence of many years of imprisonment. I think that, almost inevitably, a person in that position would reflect on what he has done, and reflect upon the futility of the acts of violence, which had marred his life and the lives of others, up until his fatal acts of 15 May 2015.
Seeking to weigh all of that up, I am satisfied that the offender is remorseful, and I say that bearing in mind the strictness of s 21A(3)(i) of the Act. That remorse is not just a matter that is inherently valuable; it also bodes well for the future.
[9]
The future
Turning to that topic, the offender gave evidence on sentence of his appreciation that his problem with alcohol and prohibited drugs must be addressed on his release (to his credit, he has attempted rehabilitation in the past, and for a time succeeded). He has held various jobs throughout his life, and has been working in prison. Whilst incarcerated, he has played an important mediating role between the gaol authorities and young indigenous offenders, a role of which some prisoners firmly disapprove. The offender appreciates that his long-standing anger, and the violence that flows from it, must be addressed therapeutically, not just in his own interests, but in the interest of all. He will have the benefit of the love and support of his family in that challenge.
As I have shown, the offender is a middle-aged man who has demonstrated a chronic tendency to violence. Tragically, that tendency has now culminated in him contributing to the death of a fellow human being. Still and all, I guardedly assess the prospects of rehabilitation of the offender as being good.
[10]
Various aspects
I turn briefly now to various discrete aspects of my task.
The offender was arrested on 17 May 2015, and has been incarcerated ever since solely as a result of this matter. I propose to commence my sentence on that date.
I am required to advise the offender that, bearing in mind the offence of which he has been found guilty, it is possible that, if he is judged to be a danger to the community, he could be detained after the expiry of his non-parole period, and even after the expiry of his head sentence: s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW).
As well as that, I do not propose mechanistically to recite all of the aggravating and mitigating features that I have found to exist; these remarks on sentence fulfil that role.
[11]
Special circumstances
Turning to the question of the ratio between the non-parole period and the head sentence, I am amply satisfied that special circumstances should lead to a reduction, albeit a measured one, in the non-parole period. I repeat that the offender is patently suffering from drug and alcohol problems that underpin his longstanding criminality, and those problems are undoubtedly underpinned in turn by chronic psychological issues. Those issues, including depression, played a role in what he did to the deceased. The offender has the insight to see that all of those issues must now be addressed, but I believe that he will require a great deal of help in doing so.
Separately from that, although the offender is no stranger to prisons, it will be a significant adjustment for him when he is released, whether that be at the end of the non-parole period that I impose, or thereafter. I believe that he will need significant help with that as well.
For all of those reasons, there will be a small reduction in the length of the non-parole period, in order to increase the time during which the offender is subject to conditional liberty.
[12]
Victim impact statements
I return now to the subject of the human life that has been destroyed as a result of the brutality of the offender.
I received a number of poignant victim impact statements prepared by the family of the deceased. One of those statements was kindly read in court by his sister, Ms Thelma Saunders. In his written submissions, the Crown prosecutor made clear that I should deal with those statements in accordance with longstanding principle: R v Previtera (1997) 94 A Crim R 76.
Like the offender, the deceased was an indigenous man of this country. Like him, he had developed a problem with alcohol, although in the case of the deceased it had reached a point of endangering his life. Like the offender, I infer that the life of the deceased has been free of privilege, and indeed has had its share of deprivation and sadness. His family have spoken of his kind and thoughtful nature, and their searing experience of being suddenly told that a much loved son, step-son, brother, and uncle was to die within hours. All of those who loved him, I accept, continue to suffer now, and will do so into the future.
On behalf of the Supreme Court of New South Wales, I extend my condolences to all of those who have loved and lost Kenneth Matthews. It could be that the conclusion of the proceedings in this courtroom today will bring them some measure of closure; it hardly needs saying, I think, that no sentence that I can impose will make good their loss.
[13]
Conclusion
In short, an act of wholly disproportionate and unnecessary violence has played its part in the death of a fellow human being. The offence was not motivated by self-defence, or defence of another person. The person who committed that act of violence has shown that, far from being out of character, his behaviour was very much in character. Although he offered to plead guilty to the offence of which he was ultimately found guilty, he denied the offence on oath at his trial.
On the other hand, the perpetrator of that violence knew nothing of the fragility of the health of his victim. The crime was spontaneous, and born of anger, not pre-meditation. The offender did not intend to kill the deceased, or even to cause him serious harm. No weapon was used. Before the trial, the offender offered to plead guilty to the offence of which he is to be convicted in a moment. He has come to see the enormity of what he has done. The offence was caused to a degree by the underlying psychological problems of the offender, themselves caused by the tragic events of his childhood, not least of which were the repeated sexual assaults committed upon him. The offender has sworn that he will subject himself to the painful process of giving evidence against that person. One is entitled to have a guarded optimism about the ability of the offender to change his life when he rejoins the community.
My sentence seeks to reflect all of those factors. It also seeks to reflect the adverse aspects of the life of this Aboriginal offender that culminated in the events of 15 May 2015, without for a moment diminishing the value to be accorded by the criminal justice system to the life of the similarly disadvantaged Aboriginal man who died at his hands: Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44].
[14]
Conviction and imposition of sentence
Steven John Johnson, you are convicted of the offence of manslaughter.
I impose a non-parole period of four years, to commence on 17 May 2015. That will be followed by a parole period of two years. The earliest date upon which the offender may be considered for release to parole is 16 May 2019.
To express my orders another way, I have imposed a head sentence of imprisonment for six years, with a non-parole period of four years, with a full backdate.
If I had not found special circumstances, I would have imposed a non-parole period of four years and six months. Were it not for the value of the offer to plead guilty to manslaughter, and the assistance the offender has promised to give the criminal justice system in the future, I would have imposed a head sentence of imprisonment for seven years and six months.
[15]
Amendments
04 September 2017 - Coversheet - Typographical errors in Decision and Representation sections.
[18], [30] and [39] - Punctuation errors.
[23], [54] and [58] - Typographical errors.
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Decision last updated: 04 September 2017