R v White

Supreme Court of NSW|2022-05-02|Before: Wilson J, Abadee J, Newman J, Levine J, Gleeson CJ, Wood J

Judgment

HER HONOUR: Had he lived, Scott Johnson would have celebrated his 60th birthday in November last year. Because of the actions of the offender, Scott White, Dr Johnson's life was cut short at the age of 27, at a time when, having already completed the work required for the award of a Doctorate of Philosophy in mathematics, he was on the verge of what is highly likely to have been an extraordinary career. I will say more about Dr Johnson, and what his death has meant to those who loved him and to the wider community, later in these remarks.
Scott White stands for sentence today having entered a plea of guilty to the murder of Dr Johnson, a crime that occurred sometime between 7 December 1988 and 11 December 1988 at Manly in this State. Murder is a crime contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and it carries a maximum sentence upon conviction of life imprisonment. There is no standard non-parole period applicable to this offence, committed as it was before 1 February 2003. The maximum penalty fixed for the crime of murder is an important guide to the Court in fixing sentence.

The Aftermath of the Crime

The path that the investigation into Dr Johnson's death took is to a great extent a matter of public record.
The initial police investigation into what had caused Dr Johnson to plunge to his death at North Head seems to have been a peremptory one, with investigators quickly forming the view that he had taken his own life. The Coronial Inquest that followed in 1989 reached the same conclusion of death by suicide.
Dr Johnson's family and loved ones were unable to accept that he had killed himself, and over the decades tirelessly sought a more comprehensive investigation and a further Coronial Inquest. A second Inquest in 2012 returned an open verdict; with a third Inquest in 2017 concluding that Dr Johnson had died as a consequence of the malign act of another person or persons.
The publicity sporadically given to the circumstances of Dr Johnson's death over the years prompted discussions between the offender and his wife, conversations that ultimately led the police investigation into Dr Johnson's death to examine the offender's possible involvement in it.
Helen White gave evidence of those conversations yesterday and the Court had an opportunity to see her give her evidence and be cross-examined on that evidence.
Ms White told the Court that, sometime soon after the birth of one of her children on 8 December 1998, she saw an article in a newspaper that prompted a discussion with the offender. Although Ms White did not recall which newspaper carried the report, or precisely when it was published, she recalled that there was a photograph of Dr Johnson accompanying the article. She asked her husband, who had previously "boasted" of having "bashed poofters" in his younger days, whether this was one such man. The offender made a reference to "that girly looking poofter".
In a second conversation on the subject, prior to Ms White's separation from the offender on or around 2 September 2008, Ms White was again prompted to raise the subject with her husband, having seen another newspaper article which referred to Dr Johnson. Ms White asked the offender, "did you do this?... the guy they found at the base of the cliffs at North Head". The offender replied, "the only good poofter is a dead poofter". Ms White said, "So you threw him off the cliff?", to which the offender responded that it was not his fault if "the dumb [cunt] ran off the cliff".
Ms White was cross-examined about an apparent inconsistency between her evidence of the timing of the 1998 conversation, being sometime after her child's birth, and what she had said in her police statement, that she had seen the article and had the conversation a matter of a day or so after the birth. Ms White maintained that she was not sure of the exact timeframe relative to the birth of her child, although it was within days, weeks, or a couple of months following that event. She thought the police officer who took her statement may not have taken down what she said word for word. She denied having become aware that searches had shown that there was no article concerning Dr Johnson's death proximate to her child's birth in two local newspapers.
Of the second, 2008 conversation, it was suggested to Ms White that there had been no newspaper article prompting the exchange with the offender; she maintained she had seen an article and had a distinct recollection of the conversation. She agreed that she did not inform police officers who dealt with her domestic violence complaint of 2 September 2008 of the offender's admissions about Dr Johnson but said in re-examination that she had been traumatised by what had occurred and was focused on giving a statement about what had happened to her in what was an urgent situation.
It was also suggested to Ms White that she had invented the two conversations with the offender, motivated by a substantial reward that had been offered prior to her approach to police in January 2019. She denied knowing about the reward, saying in re-examination that, when she approached the police by letter, she did not give them her name, and nor was the subject of a reward discussed when she first spoke with police officers. Living interstate, she had been unaware of it.
The offender challenged Ms White's evidence as implausible and, given the evidence adduced in his case concerning searches unsuccessfully made to identify the newspaper articles Ms White referred to, it was submitted that her evidence was false, and her motive to give false evidence a financial one.
Having considered Ms White's evidence, and other evidence before the Court that might either support or cast doubt upon her evidence, I accept beyond reasonable doubt that there were two conversations with the offender in which he spoke of "poofter bashing" and referred to Dr Johnson.
The evidence of database and microfiche searches of newspaper holdings, and the absence of any article from 1998 and 2008, points to the possibility of error in Ms White's recollection of the exact timing of the conversations, but it does not on balance establish the falsity of the evidence, or that it cannot be accepted to the criminal standard.
Firstly, the searches made of media holdings were limited in ways that make it impossible to conclude that Ms White could not have seen an article soon after her daughter's birth, or shortly before her separation from her husband. The records of newsprint holdings are themselves incomplete, and do not purport to contain every publication of every newspaper in the relevant period. There is also the possibility that an article that was held in the records may have been missed in a manual search; that Detective Chief Inspector Yeomans located at least one article not found by those who searched records on the offender's behalf suggests as much. Finally, the timeframe given by Ms White was not an exact one, and it is possible she could have seen articles that were published in 1999, and in 2007, rather than 1998 and 2008.
It is unsurprising that a witness might be in error about the date on which an event took place decades after that event. Ms White's recollection of the first conversation places it as late as early 1999; her recollection of the second does not fix it in time at all beyond the use of the phrase "shortly before". It is entirely possible that the word "shortly" in the context of the passage of well over a decade encompasses a period of months.
Searches of media holdings were limited to 1998 and 2007. The evidence of the results of those searches does not exclude the publication of newsprint articles outside those years.
Nor do I see Ms White's failure to refer to the conversations in 2008 when, as the victim of domestic violence, she made a statement to police officers, as indicating untruthfulness. As she said in evidence, her focus was - not unreasonably - on herself, her own immediate circumstances, and the basis of her fear of the offender. Since the conversations with the offender concerned violence directed to gay men, there is no reason Ms White should have referred to them in the context of domestic violence.
As to Ms White's motivation for coming forward in 2019 with information, the fact that she did not identify herself when she provided information to police in January 2019 suggests that it was not necessarily the temptation of reward money. Ms White's evidence that she was living interstate at the time and had not been aware of media coverage prominent in Sydney was not challenged. It is by no means inevitable that she must have been aware of the reward when she contacted police.
Although the evidence is not entirely clear on the subject, it seems that Ms White had seen a television programme about gay hate crimes, and that prompted her to conduct an internet search which led her to the name of Detective Chief Inspector Yeomans. That she might scroll through articles thrown up by the search without reading the content comprehensively is not unlikely or implausible.
There is other evidence that supports Ms White's testimony and which ultimately has led the Court to accept it. Ms White referred to the offender speaking on a number of occasions about "poofter bashing" in his younger days. That the offender said something almost identical to the two witnesses on 19 March 2020 - "like we used to go poofter bashing" - provides strong support for the truthfulness of Ms White's evidence. The correspondence in what Ms White and the offender separately said is too striking to be chance or coincidence, and I do not accept either of the explanations advanced by the offender as reasonably possible. That the offender intended by his comment about "poofter bashing" to refer not to his own acts but to the community's attitude to gay men borders on the fanciful; the possibility that both Ms White and the offender used the same phrase by chance to refer to something the offender did in the past, or because it was a phrase in common use, is highly unlikely. It is far more likely that Ms White reported that the offender said he went poofter bashing, and the offender said the same thing, because he had in fact made the comments as Ms White deposed.
The offender's admissions to the witnesses in March 2020 also point strongly to the truthfulness of Ms White's evidence. It is too unlikely to be countenanced that Ms White would fabricate the conversations she says she had with her husband, in circumstances where the offender separately acknowledged to two witnesses having been at North Head with Dr Johnson, having known him to have an American accent and a "good build", and having acknowledged hitting him, and seeing him go over the cliff edge. This is much more than coincidence.
The Court accepts that the offender did discuss Dr Johnson with his wife in the terms Ms White gave in evidence. Whilst she may well have been in error about the precise timing of the conversations, I accept her evidence of their content as reliable.
After being given Mrs White's account of the offender's statements in early 2019 police officers interviewed the offender, on 21 May 2019. The offender told police that he had lived on the streets of Manly as a "street kid" since he was aged 14 or 15, remaining in that area until he was 21 years old. In 1988 he had been aged 18 years old and was homeless.
He acknowledged having been involved in a number of assaults, saying that he had fought because he was stupid, and drunk. He was specifically asked whether he had selected people to fight because of their perceived sexuality, responding "No, I'm gay meself".
He claimed to have discovered when he was aged about 15 years that he was gay but had been concerned then that his homosexuality did not become known to others, because the community had not viewed gay men positively in the nineteen eighties. The offender was particularly anxious that his brother did not become aware of his sexuality.
The offender denied being involved in Dr Johnson's death or having seen "gay bashings" in the nineteen eighties. He was able to nominate a "gay beat" at Manly he had been to once or twice, the location of which he described as along a path past the aquarium "on the wharf side of Manly", to a beach he could not name.
On 13 March 2020 and again on 17 March 2020 two witnesses attended the offender's home and engaged in conversation with him concerning the death of Dr Johnson. On 19 March 2020 the witnesses again saw the offender, discussing the same subject. The offender told the witnesses that being gay was his biggest secret, because his brother and his family "hate[d] gays". The offender accompanied the witnesses on a drive from the Lane Cove area to Manly.
In the course of the drive and referring to Dr Johnson, the offender said he had dreamt about him. He said, "I did have a dream about, 'bout him… a couple of nights ago, I don't know it was just a weird dream in the bush, something to do with the bush… I was with him up the, up at North Head."
He said "the kid that died" had been gay, adding: "See back in them days wasn't like it is now […] Like we used to go poofter bashing".
On arriving in Manly the offender directed the witnesses to North Head, Sydney Harbour National Park, an area of around 3 square kilometres of scrub and bush. The offender endeavoured to show the witnesses the location where Dr Johnson had left the clifftop.
The car in which the men had travelled to the area was parked on Bluefish Drive beside the Bluefish Walking track and the offender and the group went on foot along the track near the eastern face of North Head in the direction of Shelly Beach. As they walked the offender commented from time to time. He said that in his dream he was with Dr Johnson, who got undressed. He said: "I just remember comin' up here one night […] I remember comin' up here with him ….we were talkin'".
Referring to Dr Johnson, the offender said he took his clothes off. The offender then became emotional. He said he had met Dr Johnson at the Brighton Hotel in Manly.
The group walked along the trail until they reached the Upper Shelley Headland lookout where the offender said he thought that it could be the spot where Dr Johnson fell, although he was not sure. At that location the offender told the witnesses that after he met Dr Johnson at the Brighton Hotel they had "come up here" to North Head. He said "I think we had a fight. That's all I can remember… he fell. I took off".
The offender demonstrated his position and indicated where Dr Johnson had been standing, saying: "I hit him, he hit me. He stumbled back. I went to grab him and he stumbled back".
As the offender and the witnesses walked on around North Head the offender said that he did not know where Dr Johnson's clothes had ended up. The offender recalled him as speaking with a bit of an American accent and having had "a good build".
Repeating his account of what had happened he said: "I punched him […] He went backwards and I tried to grab him. […] And he fell".
The offender described himself as "very emotional" and commented that he would "never cope with it".
When arrested on 12 May 2020 by police the offender acknowledged having told the two witnesses that he had "punched" and "pushed a bloke" who "went over the edge" but asserted that he had said those things to "get these guys off me back" and it was "all full of shit".

The Impact of the Crime

The Court has heard from some of Dr Johnson's family and loved ones, each of whom has tried to describe the impact of this crime. The crime of murder is regarded as the most serious crime that can be committed because of the gravity of the violent destruction of a human life, and the loss and pain to the community and to those closest to the victim of the crime that follows. The extent of that harm was movingly expressed by Dr Johnson's loved ones in Victim Impact Statements given in Court. The pain the statements express is vast. They convey some sense of the terrible grief and devastation endured by the Johnson family and the Noone family when the fact of Dr Johnson's death became known, and in the subsequent 34 or so years until the present.
That loss and the deep well of grief will not end with these proceedings. For those most affected, the burden of pain and the ever-present sense of the absence of a much loved man will be lifelong.
The Victim Impact Statements also provide the Court with some understanding of the man violently taken from the world by the offender's actions and demonstrate further the extent of the great harm done to the community by the offence.
Scott Johnson spent his early years with his brother Steve and sister Terry and their mother Barbara Anderson. Ms Anderson was a single parent and the family had very little money, living in an underprivileged neighbourhood. Despite that hardship, Dr Johnson did very well at school and pursued his education, later studying at universities in California and at Cambridge University in the United Kingdom, as well as at the Australian National University. He is described as a brilliant mathematician, whose hard work and incandescent intelligence led him to solve three significant mathematical problems. That work in turn led to the conferral of the degree of Doctor of Philosophy in mathematics, and a number of highly regarded published papers, some published posthumously through colleagues who believed the work was too important to go unrecognised. Dr Johnson's academic supervisors and colleagues believed he would achieve very great things for himself and for society. He had already achieved extraordinary things in economics and mathematics, and more was confidently expected. With Dr Johnson's death the world lost a mind ready to contribute substantially to its advancement.
As well as possessing a remarkable intelligence Dr Johnson was clearly, from the descriptions given in the Victim Impact Statements, a gentle, kind, modest, shy, and highly principled young man, who loved to travel, go climbing and hiking, and watch classic Hollywood movies.
When Dr Johnson died his family and loved ones were cast into grief, a grief that was the more difficult to assuage when, for over three decades, it was accompanied by a deep sense of injustice. His partner Michael Noone spoke of Dr Johnson's death causing an aching void left forever unfilled. For the immediate Johnson family, Barbara, Steve, Rosemarie, Terry, Rebecca, and Sloan; and for other family members, and friends such as Tom, the death of a son, brother and friend changed everything. In his Victim Impact Statement Mr Johnson said: "When a life is cut short, other lives unravel. When a loved one is murdered, it sends a spear into one's soul and spirit."
This has been the personal cost of an act of criminal violence.
Harm has been done to Dr Johnson's family and friends as demonstrated by the Victim Impact Statements of family members, and I accept that this harm is an aspect of the harm done to the community by the commission of this offence.

Assessing Sentence

Part of the process of determining a sentence to be imposed upon an offender is to assess the gravity of the crime, with the starting point here being the fact that all murders are gravely serious, because of the taking of a human life. The maximum penalty of life imprisonment is of itself an acknowledgement of the seriousness with which the community regards the murder of one of its members.
The assessment to be made must be carried out on the basis of facts proven by evidence to the very high criminal standard of beyond reasonable doubt.
What an assessment of the gravity of a particular murder does not do is reflect the value of the life taken. That is something no sentence that a court could impose could ever do. The worth of Dr Johnson's life, and the terrible cost of his death to those who loved him will not be paid in full by a sentence of so many years and months imprisonment.
Paying that inestimable debt is not the purpose of the imposition of sentence by a court.
A sentence imposed by a court for a crime has a number of purposes that are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those purposes include the adequate punishment of the offender, the denunciation of the crime, and the recognition of the harm done, but also the rehabilitation of the offender. The features to be considered can and do pull in quite different directions and this has an impact on the sentence imposed.

Gravity

The gravity of the offence also has an impact on sentence.
It is necessary to make an assessment of what the law perhaps insensitively labels as the objective gravity of the crime, a concept I understand families of those who have died may find incomprehensible or even offensive.
Two of the features that have a bearing on the assessment are the nature of the act causing death and the offender's intention when acting as he did. Of those significant features there is relatively limited evidence upon which to draw conclusions of fact beyond reasonable doubt.
It is not possible to draw any conclusions from the examination of Dr Johnson's body as to the level of force applied to him in the minutes or seconds before his death, because of the grievous nature of the injuries occasioned to him by the collision with the rocks below North Head, although it is an accepted fact that Dr Johnson had no defensive injuries.
It is similarly not possible to draw any conclusions to the criminal standard as to exactly what happened between the offender and Dr Johnson. It may be, as the offender said to his wife on an earlier occasion that he chased Dr Johnson causing him to go over the cliff edge. It may be, as he said and demonstrated in his interview with police officers on 12 May 2020, whilst decrying its truth, that he pushed Dr Johnson, who went off the cliff. Neither of those propositions can, however, be accepted as proved beyond a reasonable doubt. The evidence for them is too slight.
What is established to the criminal standard on the basis of the offender's admissions to the witnesses at North Head, informed by what he said to Ms White, is that the offender hit Dr Johnson, causing him to stumble backwards and leave the cliff edge. Although the offender said on one occasion to the witnesses to whom he spoke in March 2020 that Dr Johnson hit him back, the absence of any injury to Dr Johnson's hands do not support that, and I do not accept it on balance. The evidence is of a blow struck by the offender without provocation, causing Dr Johnson to plummet to his death.
In those seconds when he must have realised what was happening to him, Dr Johnson must have been terrified, aware that he would strike the rocks below, and conscious of his fate.
The Court is satisfied beyond reasonable doubt that the offender did a violent act, and that act was the direct cause of Dr Johnson leaving the cliff top in terror and dying on the rocks at its base. It was a terrible death.
The offender points to his comments to police that he "grabbed at" Dr Johnson after he stumbled backwards as evidence of an attempt to save him from falling. That submission stands to be assessed in light of two important matters.
Firstly the offender, who now denies the truth of anything he said to the witnesses at North Head, has not given evidence or explained in any way what he meant when he spoke of grabbing at Dr Johnson.
Secondly, the excerpts from the relevant conversation are very limited and there is little to give the full meaning or context of the discussion. The words themselves are ambiguous as to the motivation behind the attempt to grab at Dr Johnson and do not establish on balance that the gesture was motivated by a desire to save him.
In the overall context of a hostile act the evidence does not establish whether the offender grabbed at Dr Johnson as he moved or was propelled towards the cliff edge to pull him back, or grabbed at him to continue the assault. Since the Court cannot reach a conclusion as to the likelihood of the former, or the fact of the latter beyond reasonable doubt, I regard it only as an assertion of unknown meaning.
Precisely what the offender intended in acting as he did is also opaque to a degree.
It may be that, as part of the activity of "poofter bashing" that the offender told the North Head witnesses he used to engage in at about the relevant time, he intended to do at least grievous bodily harm, but that is not an inference the Court can draw from a single punch. The limited evidence allows me only to conclude that the act of the offender that caused Dr Johnson to leave the clifftop was one done with reckless indifference to human life. In engaging in some hostile act towards Dr Johnson and striking a blow to him near the unguarded edge of a high coastal cliff the offender necessarily foresaw that his act would probably cause the death of Dr Johnson but continued regardless of that consequence.
I do not accept that the time of night undermines that conclusion. The offender knew the North Head area in a general sense, and he had walked out along the cliff to reach the final location. He would have been well aware that he and Dr Johnson were close by a cliff edge. The probable result of striking a man who is standing near a cliff edge would have been clear to the offender. That he was recklessly indifferent to Dr Johnson's fate is also supported to a degree by the evidence of the offender's hatred of gay men.
Although the Crown submitted that the Court could conclude that the offender went with Dr Johnson to North Head with a malign purpose in mind because of that hatred, pointing to some aspects of the evidence beyond Ms White's testimony, I cannot reach that conclusion to the criminal standard. The Court is urged to conclude that this was a crime motivated by the offender's hatred of gay men. It may have been; one could even say it very likely was, but that is distinct from proof beyond reasonable doubt.
The Court can impose sentence only on the basis of the evidence before it, and that evidence is limited. Ms White's testimony establishes that the offender had expressed hatred for gay men - "the only good poofter is a dead poofter" - and knowledge of and involvement in Dr Johnson and his death at North Head. However, in his conversations with the North Head witnesses the offender described meeting Dr Johnson at an hotel, going with him to North Head and, after Dr Johnson undressed, striking him when he was in the immediate vicinity of the cliff top, causing him to go backwards off the cliff. The offender made no admission of doing those things because of hatred towards a particular group in society. There is no logical or rational reason to accept what the offender said about striking Dr Johnson, but reject what he said about going with him to North Head, without any apparent rancour, possibly for a sexual encounter to take place. Something prompted the offender to attack Dr Johnson after arriving there; possibly the assault was driven by the offender's own self-loathing and loathing of what Dr Johnson represented; I have concluded it fed his indifference to his victim's fate. That it was a gay hate crime is not a conclusion that the Court can reach to the criminal standard however.
Nor can it be concluded beyond reasonable doubt, on the available evidence, that there was any planning involved. The crime occurred quickly, and spontaneously.
Once Dr Johnson had left the clifftop the offender's only thought was for himself. Instead of trying to get aid for his victim, he left Dr Johnson to his fate, in an unpopulated area where help was unlikely to come by chance. The offender fled, telling no-one about what had occurred.
These are the facts and circumstances that establish the gravity of this serious crime.

Circumstances of the Plea

The offender's plea was a late plea, entered after committal for trial, and after a number of appearances in this jurisdiction, with the matter listed for one week of pre-trial hearings commencing on 10 January 2022, and for trial on 2 May 2022. Given the timing of the plea s 25D(2)(b) of the Crimes (Sentencing Procedure) Act applies and the offender is entitled, subject to what follows, to a reduction in the sentence of 10% on that which would otherwise have been imposed.
The offender did not acknowledge any fact for the purposes of sentencing beyond those which were readily able to be established, such as the nature of the injuries sustained by Dr Johnson; or which were admissions lawfully electronically recorded. He disputed his wife's account of his admissions, and it was necessary for the Court to take evidence and determine those aspects of the facts which were in contention. Section 25F(4) provides a discretion for the Court to decline to award, or to reduce, the discount that would ordinarily apply pursuant to s 25D(2)(b) because of the lesser utilitarian value of the plea consequent upon the dispute.
I have not taken that course because, although court time and related resources have been expended in determining the dispute, resolved adversely to the offender, it has been dealt with expeditiously, and there remains a significant saving to the community by virtue of the plea of guilty. Accordingly, a discount on sentence of 10% will be afforded the offender in accordance with s 25D(2)(b).

Remorse

The plea of guilty goes beyond a feature leading only to a discount on sentence as determined by statute: it has something to say about remorse.
When the offender spoke to the two witnesses on 19 March 2020, guiding them to North Head and acknowledging his responsibility for Dr Johnson's death, he demonstrated feelings of remorse for what he had done. He showed some level of emotion in discussing the events and told one of the officers that he would "never cope with it". This suggests a level of distress concerning what he had done.
Despite his plea of not guilty in the Local Court and the twenty months that elapsed between charge and the entry of the plea of guilty before this Court, there is some limited evidence concerning the circumstances in which the plea was entered that suggests the offender had long been troubled by his conscience and, since being criminally charged, had given some thought to pleading guilty to the charge, ultimately choosing to do so against the advice of his lawyers and having made a decision not to forewarn them of his intended plea.
The offender told his lawyers on 10 January 2022 that there had been four occasions when he had tried to speak to them about pleading guilty, something Ms Sutherland's evidence of 11 January 2022 confirmed to a degree. The offender said that his decision to enter the plea on 10 January 2022 was not one taken in a "split [second]": R v White [2022] NSWSC 11 at [56].
Some evidence in the Crown case tends to confirm that the offender has felt his guilt for Dr Johnson's death over time. On speaking with Dr Adam Martin, Forensic Psychiatrist, on 9 June 2021, the offender said that he felt sorry for Steve Johnson, and "inferred that a guilty finding might 'put the [Johnson] family to rest'". That it has been a relief to the Johnson family was confirmed by Mr Johnson in his Victim Impact Statement when he referred to his gratitude at being spared the distress of trial proceedings.
I accept on the balance of probabilities - a lower standard of proof than that which applies to proof of facts adverse to the offender - that the offender has felt his guilt over time for what he did to Dr Johnson and, in entering his plea, he demonstrated a wish to accept responsibility for his crime, heal a long open wound, and give some peace to Dr Johnson's loved ones. That instinct, even short lived as it was, and not surviving beyond a conference with his lawyers, is deserving of recognition on sentence. It is evidence of remorse and contrition.

Criminal History

The murder of Dr Johnson was not the offender's first encounter with the criminal law.
He came before the criminal courts for offences of violence as a child, in the years before he committed the present offence. In August 1986 he was fined in the Children's Court for assault. In March 1987 he was committed to an institution by the Children's Court for a period for an offence of assault and rob. There were also dishonesty and other crimes in this period.
As an 18 year old, and less than two months before murdering Dr Johnson, the offender was again fined in the Local Court for an offence of assault. He was on bail for an offensive language charge when the offence was committed.
The entries the offender accrued in his criminal history until that point deprive him of the full measure of leniency that might otherwise have been allowed to him. That he was on bail is an aggravating feature although, in the context of an 18 year old man bailed for a very minor charge, only marginally so. It is important to bear in mind when considering the offender's criminal history his age at the time and his circumstances. It seems the offender was homeless, and without parental guidance or support. In those circumstances, it is almost inevitable that there would have been conflict with others resulting in police intervention.
Other convictions followed the commission of Dr Johnson's murder and are of some relevance to the question of rehabilitation.
In January 1989 the offender was convicted of malicious damage to property and offensive behaviour, the behaviour complained of being fighting in the street. The offender was back before the Local Court about ten months later for common assault and two counts of assaulting police; he was placed on a 2 year recognisance and fined. In June 1990 the offender was again before the courts for assault and other crimes, in breach of his recognisance. He was fined. About three weeks after the imposition of those fines the offender was again before the Local Court for assault, with a 3 month term of imprisonment imposed upon him, in July 1990. His appeal against that sentence was dismissed, a bench warrant having to be issued for his apprehension.
In September 1990 the offender was convicted of 2 counts of assaulting police, and one of malicious damage to property. Recognisances for 2 years were imposed. Having committed two further offences of assaulting police in August 1990 the offender was convicted in his absence in November 1990 and later gaoled for 6 months for the crime. An appeal against sentence was dismissed.
Property offences and further offences of violence followed, with the offender appearing before the courts for multiple offences of assaulting police, resisting police, and assault. The offender was variously fined, placed on recognisances and bonds to be of good behaviour, ordered to perform community service, and gaoled for short periods on a few occasions.
In April 1996 the offender was gaoled for 6 months for further offences of assault and assaulting police. An appeal against sentence was dismissed.
The offender's criminal history to this time points to a young man unable to live within the bounds of the law, who dealt with disagreements with his fists.
Thereafter the offender managed to remain out of the criminal justice system until he was charged in September 2008 with two counts of common assault, these being the events that led to the breakdown of his marriage. His convictions for those offences in April 2009 were his last until a conviction was recorded for this offence.
Overall, the offender's record supports his statement to police when interviewed in 2019 that he had lived on the streets when younger, assaulted people, and got into fights. A lengthy period of abiding by the law, particularly for an individual with the offender's background, which I will shortly describe, speaks positively of his capacity for rehabilitation.
Since entering custody on arrest for this offence the offender has incurred some institutional offences, but only one is of any relevance, being an entry from March this year for possession of an offensive weapon or instrument. He was punished by spending 3 days in the cells. Although the offender's possession of makeshift weapons is a concern, in light of other evidence, I intend to treat it as a neutral feature.

The Personal Circumstances of the Offender

The offender did not give evidence before the Court and all that is known of his own views about his crime is what he said to his wife, and what was said to the witnesses at North Head in March 2020.
All that is known of his personal circumstances, beyond what can be drawn from his criminal history, comes from his untested accounts to others. Although such untested statements must always be treated with caution, setting aside occasional inconsistencies in his accounts, there is no strong reason in this instance not to accept in a general way what the offender has said of his childhood circumstances.
Dr Richard Furst, Forensic Psychiatrist, assessed the offender on 2 March 2021 and provided a report on 31 May 2021. A redacted copy of the report forms part of the evidence. Dr Furst obtained a history from the offender, from which the following information is drawn.
The offender was born in August 1970, one of five children to his parents. He spent his early years in Western Sydney but, after his parents separated, he moved with his mother and siblings to Manly. The offender had no contact with his father after his parents separated.
At school, the offender was placed in special classes because of problems with literacy and restlessness. Although there is no evidence of any contemporary formal diagnosis, Dr Furst thought it possible that the offender had Attention Deficit Hyperactivity Disorder.
The offender told Dr Furst that by age 13 or 14 he was drinking alcohol regularly, and from 14 years he lived on the streets. He said he was the victim of frequent assaults. Although the offender had some work from his early teens, it seems each job was held for a short period only. Dr Furst said: "Mr White had a history of apparent emotional and behavioural problems, which led him to attempting to hang himself on a few occasions when he was around 15 years of age and also led to Mr White taking an overdose whilst in the Mount Penang boys' home."
The offender attempted suicide in 1990 and was taken to hospital by police.
By the nineteen nineties the offender had married and he and his wife have six children. The couple separated in 2008, with the offender blaming his wife for the loss of his family. The final entry on the offender's criminal history relates to the end of his marriage. He told Dr Furst that he was served with an apprehended violence order at this time. Following the marriage breakdown, the offender: "[…] described a history of chronic low mood and chronic suicidal ideation, especially after his marriage breakdown and the loss of access to his children. However, there were no indications he suffers from a major mental illness such as schizophrenia or bipolar disorder."
The offender feels distressed by his current circumstances and is treated in custody for depression.
The offender reported a very significant problem with alcohol, to the extent that he has been a heavy drinker since his mid-teens, with Dr Furst reporting his alcohol dependence as chronic and severe. He frequently presented to hospital in the nineteen eighties and nineteen nineties, "mostly for minor injuries or ailments", often in the context of having been involved in fights. He attended an in-patient rehabilitation programme in 2009 in an attempt to address his alcoholism but discharged himself because of anxiety over the written component of the programme.
The offender has been in receipt of the disability support pension since 1998. He has been prescribed anti-psychotic medication from time to time, but Dr Furst thought the prescriptions were likely "off-label", and intended to address anxiety, rather than to treat psychosis.
On assessment Dr Furst described the offender as a 50 [now 51] year old man: "[…] who was co-operative with the assessment. He had a simple manner, but was logical throughout the assessment. He reported having a poor memory and feeling frustrated about this. There were no objective signs of thought disorder, delusions, severely depressed mood or mania."
Prior to arrest the offender was living alone and independently, after spending many years living with his mother (also an alcoholic) as her carer.
Dr Furst recorded that: "A psychiatric review conducted on 01/10/20 by Dr Jackie Canessa indicated an impression of generalised anxiety disorder/post-traumatic stress disorder with alcohol dependence on the background of neglect and trauma and a degree of cognitive impairment related to childhood [premorbid low level of cognitive function], head injuries and alcohol. He was thought not to have schizophrenia, with his Olanzapine being weaned accordingly and replaced with the anti-depressant medication Sertraline."
An assessment on 12 May 2021 indicated that the offender's main problems are insomnia, anxiety, memory issues, and stress related to being in prison. He was not delusional and did not appear to be depressed. Likely diagnoses were post-traumatic stress disorder ("PTSD"), anxiety, and a substance use disorder.
Having regard to the results of neurocognitive testing administered by other health professionals, and his own observations, Dr Furst concluded that the offender meets the criteria for an alcohol dependence disorder, an alcohol induced persistent neurocognitive disorder, and a borderline personality disorder or traits of it, as well as having an intellectual disability of mild severity.
Dr Molly Schafer is a Clinical Neuropsychologist who saw the offender in April and May 2021. Her redacted report of 26 May 2021 is before the Court. It was also available to Dr Furst.
Dr Schafer obtained a history from the offender that was different in some respects to that given to Dr Furst, including as to his parentage. He reported being neglected as a child but not abused, although he said that he and his brothers were encouraged to fight for the "entertainment" of the adults. He said he started living on the streets at age 15, being homeless until he met his wife at age 21 when he moved into subsidised accommodation with her. He gave an account of long-term alcohol abuse.
Dr Schafer both administered neuropsychological tests herself to the offender and had regard to results from earlier tests. She concluded that the offender functions in the range of someone with an intellectual disability of mild severity. Her findings: "[…] revealed impaired to borderline functioning in processing speed, verbal learning and memory, academic skills (word reading, spelling and sentence comprehension), semantic fluency and poor self-monitoring against a background of intellectual functioning in the extremely low range. His attention, word-finding, visuospatial processing, visual memory, visual fluency, letter fluency and cognitive flexibility were within the low average to average range."
She was unable to formally conclude the offender has an intellectual disability because of the lack of information concerning his functioning earlier in life. Although dependent to a degree on information derived from a sister of the offender, (of unknown reliability), Dr Schafer thought the offender suffered from an alcohol induced major neurocognitive disorder. She thought that he would benefit from an alcohol and drug rehabilitation programme, and a memory rehabilitation programme in custody, together with treatment for anxiety and depression, and vocational training.
Dr Katie Seidler, Psychologist, saw the offender via an audio-visual link on 25 August 2021 and her redacted report is in evidence. She obtained a history consistent in some regards with that given to Dr Schafer, although to Dr Seidler the offender described his mother as having abused him as a child and claimed that his older brother and grandmother also abused him. He would not provide details of the abuse. He reported poor performance in school. The offender impressed as "unsophisticated […] intellectually and socially" and was a poor historian unable to answer many questions and unwilling to discuss "difficult personal experiences". Dr Seidler thought the offender presented as a person "whose neurocognitive functioning has been adversely affected by years of chronic alcohol abuse". His thought processes however were generally coherent.
The offender gave a history of heavy and constant alcohol use, broken only by periods of abstinence in prison, and a few short periods of abstinence when undergoing treatment for alcoholism. He said that his criminal history was all alcohol related. The offender acknowledged that as soon as he can, he will relapse into alcohol abuse.
Since admission to prison the offender has felt stressed, although medication prescribed to him was helpful. He reported having poor sleep and ruminating on his worries, having "signed on" as a protection prisoner due to his concerns as to his vulnerability because of his cognitive issues. At the time of the assessment he was employed in the prison laundry. He has visits from siblings from time to time. The offender reported both that he was "making a home for himself" in prison because he does not believe he will ever be released, and that he will kill himself if sentenced to imprisonment.
Dr Seidler concluded that the offender likely suffered from congenital intellectual limitations, although his "neurocognitive functioning has been seriously and adversely impacted by his chronic alcoholism". He functions at a very low level intellectually, his memory is poor, and his executive functioning is compromised.
The offender's solicitor, Jie Hu, has been in fairly regular contact with the offender since January 2022. She has been concerned over time with the offender's mood, and worried that he may harm himself in custody. Ms Hu has liaised with Justice Health to ensure that the service is aware of the offender's needs. A psychologist is involved in supporting and treating the offender, and sees him fairly regularly.
An advocacy service, People with Disabilities Australia, is also involved with the offender, consulting him fortnightly via audio-visual link and assisting him with securing the provision of services through the National Disability Insurance Scheme. The offender is presently supported by Ms Saville and Francis O'Neill.
Some extracts from Justice Health documents concerning the offender establish that he is frequently anxious and "teary" in custody, and has panic attacks, mostly with respect to the court proceedings, but also based in ordinary life issues. An entry from 24 March 2022 records the offender presenting in an agitated mood with a "small area of broken skin inner L[eft] wrist - superficial". The narrative is to the effect that, on a search of his cell, sharpened wooden knives were found and confiscated, with the offender "locked in" as a result. He self-harmed a short time later, causing the superficial laceration to his wrist.
In the days following the offender denied thoughts of self-harm.
Presumably, this self-harming incident followed the disciplinary outcome which is recorded in the Custodial History as an institutional offence of possessing an offensive weapon, resulting in 3 days in the cells.
The expert evidence relied upon by the offender is broadly confirmed by an assessment undertaken by Dr Martin at the request of the Crown.
The Crown tendered Dr Martin's report. The doctor recorded that, when speaking with the offender in June last year the offender was upset and frustrated at times, although he became calmer as the assessment progressed. Dr Martin found the offender's communication to be basic but coherent. There was no evidence of delusions or hallucinations and nothing in the documentary material suggested a major mood disturbance or any psychosis.
Dr Martin's conclusions were similar to those of Dr Furst. He thought that the offender had an alcohol use disorder, in remission in custody. Collateral documents suggested that the offender had a prejudicial childhood and disrupted education. The offender gave a history of self-harm, which Dr Martin noted was suggestive of poor coping mechanisms. Like Dr Furst, Dr Martin was not persuaded by earlier references in the medical records to the offender having schizophrenia or other psychiatric disorders, concluding instead that he experienced: "[…] mood instability in association with a chaotic developmental history, poor parental modelling, instability in his home environment and relationship, complicated by alcohol dependence and previous drug use, and with long standing limited intelligence."
The offender is, in Dr Martin's view, of borderline intelligence with some probable cognitive deficits, the extent of which could not be determined with precision. The doctor was cautious about accepting that the offender had alcohol related cognitive decline.
Collectively, the evidence establishes that the offender was very likely to have been intellectually impaired at some level when he murdered Dr Johnson, and that impairment has only worsened in the decades since, due to the offender's chronic abuse of alcohol.

Delay

The delay between offence and sentence in this matter is very lengthy indeed. It has a bearing on sentence in more than one way.
By law, the Court is required to sentence the offender in accordance with patterns of sentencing that applied at about the time of the offence, insofar as any pattern can be determined.
Although a "pattern" is difficult to determine with any precision, it can be said with confidence that effective sentences for murder handed down in the late nineteen eighties and early nineteen nineties were on average lower than they are presently: R v Afu; R v Caleo (No 17) [2018] NSWSC 1127 at [100]; R v Adams (No 7) [2017] NSWSC 179. The sentencing regime was different to the present regime, and calculations concerning parole operated in a different way, and more favourably to prisoners than is presently the case.
The Court has been referred to the Public Defenders Table of Murder Offences Committed Prior to 1999. Whilst helpful, it contains only a handful of cases where the offence was committed at about the same time as the present case, with sentence imposed in each case decades later. The cases represent offences committed from 1983 (Adams (No 7)) to 1999 (R v Valiukas [2009] NSWSC 808). The range of sentences imposed in the decisions is between 10 years with a non-parole period ("NPP") of 6 years (R v TNT [2002] NSWSC 537), and life imprisonment (R v Warwick (No 94) [2020] NSWSC 1168).
None of the decisions in the Table are factually comparable to the present case, and none appear to have relied upon reckless indifference to human life for the mental element of the crime.
Further case summaries are contained in the Public Defenders Table of Murder Offences Committed by 18 - 20 year old Offenders, ranging in date of imposition of sentence from 1990 to 2021. In the period 1990 to 1995 the longest head sentence imposed was one of 24 years, imposed in two cases. In R v McDonald, unreported decision of the NSW Supreme Court, 12 March 1993, per Levine J, the offender received an 18 year minimum term and a 6 year additional term for deliberately shooting a taxi driver whose taxi was stolen. In R v Hungerford, unreported decision of the NSW Supreme Court, 17 August 1993 per Newman J, a minimum term of 18 years and an additional term of 6 years was imposed upon a 20 year old offender who abducted a 49 year old woman and sexually assaulted her, thereafter murdering her by striking her head with a lump of concrete. In both cases the act causing death was done with an intent to kill. The shortest sentence imposed in the same period was a term of 9 years and 7 months, made up of a minimum term of 5 years and 7 months and an additional term of 4 years, imposed in R v Campbell, unreported decision of the NSW Supreme Court, 3 September 1993, per Abadee J. The offender was one of a group who set upon their victim, with multiple blows struck, including with a brick, before the body was weighted down and thrown into a river.
None of these cases relied upon reckless indifference to human life.
For what may have been a case based upon that head of liability, memory points to the decision of R v Royall (Court of Criminal Appeal (NSW), Gleeson CJ, Wood J, Newman J, 12 July 1989, unrep), which has some factual similarities with the offender's crime, in that it involved a deceased who left the window of a sixth story apartment in Kings Cross in 1986 and plummeted to her death. The Crown cast its case on all three possible bases of murder (intent to kill, intent to inflict grievous bodily harm, and reckless indifference) and left the decision to the jury as to which was proved. Upon conviction a sentence of life with no non-parole period was imposed. The NSW Court of Criminal Appeal dismissed a conviction and sentence appeal; the High Court dismissed a conviction appeal and refused special leave to appeal against sentence in Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27. The evidence in that case however, established that the deceased had been subjected to significant violence before she jumped, fell, or was pushed to her death.
The decisions set out in the Tables provide some guidance and go some distance to suggesting a range of sentence for murder offences at the relevant time. The decisions establish that sentences for murder then were much lower than now, and the minimum terms were fixed with a greater variation of ratio of time in prison and time on parole than is now the case. The offender must be sentenced in accordance with sentencing patterns from around the late nineteen eighties and not with those of the present. A finding of special circumstances, which is in any event indicated by the offender's need for assistance with reintegration upon release to the community, will permit the ratio of sentence to be appropriately adjusted.
The other significant impact of the delay is that the offender has had a lengthy period of time in which to rehabilitate himself, and he must be sentenced as a man now in his fifties, who has not breached the criminal law since 2008, and who seems to have lived a blameless life since then, caring for his elderly and alcoholic mother for many years, and thereafter living quietly by himself. Specific deterrence has no real role to play in the sentencing exercise, and nor does the protection of the community figure to any extent.

The Relevance of Cognitive Impairment

Cognitive impairment and intellectual disability can have relevance to the sentence to be imposed upon an offender, in the ways discussed in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Although the aetiology of the offender's cognitive impairment is not entirely clear - the possible causes being any one or more of a congenital intellectual disability, head injury leading to brain damage, and alcohol induced cognitive impairment - he clearly has a significant level of dysfunction. It is not possible to gauge the level of disability that existed in 1988 because whatever degree of impairment the offender then had has been exacerbated and overwhelmed by damage occasioned by chronic excessive alcohol consumption over time. It is reasonable to conclude, however, that the offender functioned at a lower level than did most people, given his history of special classes at school and his functional illiteracy.
On balance, it is also reasonable to conclude that the offender's impairment and childhood disadvantage had a causative role to play in the commission of the offence. It seems the offender was encouraged as a child to fight for the amusement of others and, once living on the streets, ready resort to violence was likely a means of managing the dangers of such a life. The offender was, judging by his criminal history and the reports of frequent fighting he has given to others, someone with few coping skills and whose dispute resolution skills involved violence.
His prejudicial childhood leading to life on the streets in the mid to late nineteen eighties took a toll. As Rebecca Johnson very generously recognised in her Victim Impact Statement, the community failed the offender as a child and a young man. The path that he was set upon by childhood trauma including homophobic parents who drank and encouraged him to fight for their amusement was the path that took him to North Head. His moral culpability, and availability as a vehicle for general deterrence, are both reduced as a consequence of that background, the deprivation of his early life, and his cognitive impairment.
I accept that the offender's impairment also means he will experience prison life as a harsher and more dangerous environment than would an unimpaired prisoner, and he will be more vulnerable to exploitation and abuse. That too must have an impact upon the sentence to be imposed.

Other Sentencing Principles

Ensuring the offender is adequately punished, denouncing his crime, and making him accountable for his actions, within the framework I have outlined, remain important sentencing considerations.

The Sentence

It should be understood that the Court is not sentencing a violent and aggressive young man for a targeted attack upon a gay man. Because of the lapse of time the offender is no longer the same angry young man who raised his fists to another on the edge of a cliff. Neither is the Court imposing sentence for a crime motivated by hatred for a particular sector of society; the evidence does not support that approach.
Sentence is to be imposed for the murder of Dr Johnson on the basis of the offender's reckless indifference to human life, broadly in accordance with the lower penalties and more generous parole that applied in the nineteen eighties, upon a seriously impaired man in his fifties, who has lived a law-abiding life for 14 years, for a crime committed when he was 18 years old.
Those features operate to lessen the sentence as against one which would be imposed for the same crime committed today. Such a sentence would be much higher.
I understand that this is unlikely to be an approach that the Johnson and Noone families will feel gives adequate recognition to a crime that caused such a luminous life to be taken at such a young age, a loss which has left them with a continuing burden of unbearable pain.
The Court can and does extend every sympathy to Mr Johnson and his family, and to Mr Noone and his family. No-one hearing of the circumstances surrounding Dr Johnson's life and death, of the long years of hard struggle by his family for justice, and of the light extinguished from the world too soon, could feel anything other than grief for those who have most suffered. It is tragic that Mr Johnson and all of Dr Johnson's loved ones have had to endure this bitter pain. The sentence to be imposed upon the offender is unlikely to end that grief; perhaps it may bring some peace.

Sentence

Having been convicted of the murder of Scott Johnson in December 1988 at Manly, the offender is sentenced to a term of imprisonment of 12 years and 7 months commencing on 12 May 2020 and ending on 11 December 2032. The non-parole period is a term of 8 years and 3 months, expiring on 11 August 2028, that being the date upon which the offender will become eligible for parole.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2022

At a glance

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Judgment (16 paragraphs)

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