R v White

Supreme Court of NSW|2023-06-06|Before: Beech-Jones CJ

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Maria Walz Legal (Offender) File Number(s): 2020/141305

Procedural Background

The procedural history of this case is a story in its own right. Although its intricate details are best told on another day, it is necessary to outline the chronology of events that has led to the offender being before this Court for sentence for manslaughter.
On or about 12 May 2020, the offender was arrested for the murder of Dr Johnson and refused bail. He has not been released from custody since. On 28 January 2021, the offender was committed to the Supreme Court for trial. Although he was not formally arraigned, sometime thereafter the Court was advised that the offender would plead not guilty. His trial was fixed to commence on 2 May 2022 with various pre-trial arguments listed during the Court vacation on 10 January 2022. Prior to pre-trial argument commencing, the offender was arraigned. He pleaded guilty to murder. Apparently, this came as a surprise to his legal representatives. There was an application to withdraw the plea. This was refused on 13 January 2022 (R v White [2022] NSWSC 11).
On 3 May 2022, Wilson J sentenced the offender for the murder of Dr Johnson. The offender was sentenced to a term of imprisonment for 12 years and 7 months commencing on 12 May 2020 with a non-parole period of 8 years and 3 months (R v White [2022] NSWSC 525; "White (No 2)").
The offender appealed his conviction for murder on the basis that the decision to refuse him leave to withdraw his plea was erroneous. On 18 November 2022, the Court of Criminal Appeal allowed his appeal, set aside his conviction and remitted to me his application to withdraw his plea of guilty to murder (White v R [2022] NSWCCA 241). The application was listed before me in December 2022 when it was adjourned until 23 February 2023. On that day, and without opposition from the Crown, the offender was granted leave to withdraw his plea of guilty to murder. The Crown then presented an indictment again charging the offender with the murder of Dr Johnson but which also expressly included the statutory alternative of manslaughter. The offender was then arraigned. He pleaded not guilty to murder but guilty to manslaughter. [2] The Crown accepted that plea in full satisfaction of the indictment. The Court convicted him. At the time the offender specifically confirmed to the Court that he accepted legal responsibility for the death of Dr Johnson but not for murdering him. [3] In the meantime, the Crown discontinued an application for special leave to appeal the Court of Criminal Appeal's decision to the High Court.

Agreed Facts

An agreed statement of facts surrounding the killing of Dr Johnson was tendered. It is evident that the statement is the product of considered discussion between the experienced legal practitioners acting for both parties. The following is derived from that statement.
From the time of Dr Johnson's arrival in Australia in 1986, he lived with his partner, Mr Michael Noone, in the Australia Capital Territory. By late 1988, Dr Johnson's PhD was almost complete. In December 1988, he travelled to Sydney and stayed with Mr Noone's parents in Lane Cove. Mr Noone's sister also lived there. She last saw Dr Johnson when he was lying in his bed at 6.00am on Thursday 8 December 1988. She had spoken to him on the afternoon of 6 December 1988 and recalled him being in good spirits. [4]
Dr Johnson's body was discovered by a spear fisherman on Saturday, 10 December 1988 on rocks at the base of Blue Fish Point at North Head, Manly. His clothing and some personal belongings were located about 10m away from the clifftop where he had fallen.
An examination of Dr Johnson's body revealed he had suffered massive head, abdominal and chest injuries. His body showed no sign of defensive wounds or obvious signs of violence. A forensic pathologist concluded that Dr Johnson died as a result of multiple injuries which were consistent with him being pushed, tripped or intentionally jumping from the top of the cliff. Testing of a blood sample taken from Dr Johnson revealed a blood alcohol content of .005g per 100mml of blood. This could have been the result of post-mortem changes or from drinking a small amount of alcohol.
The next entry in the agreed facts recounts that the offender agreed to be interviewed by the police on 21 May 2019. The facts do not recount the occurrence of any events between 1988 and that time.
As at December 1988, the offender was just over 18 years old. He weighed approximately 86kg and was 1.73m tall. Dr Johnson was approximately 68kg and 1.75m tall; that is, Dr Johnson was smaller in physical stature than the offender. By the time the offender was interviewed in 2019, he was almost 49 years old. During the interview, the offender told the police that, from when he was 14 or 15 years old, he lived as a "street kid" in Manly. He said he was involved in a number of assaults. The offender said he fought because "he was drunk and… stupid" and agreed he had an anger problem. The offender denied that he chose gay victims to bash and told the police, "I'm gay m[y]self". The offender said he was concerned, both then and now, about people knowing he was gay. The offender denied having any involvement in the death of Dr Johnson. He denied witnessing the bashing of any gay people but said he "thought his brother had". [5]
The agreed facts record that on 17 March 2020, two witnesses had a conversation with the offender at his home about the death of Dr Johnson. On 19 March 2020, the witnesses again saw the offender. Their conversation was recorded. The offender told them that being gay was his biggest secret because his brother and family "hate gays".
The offender agreed to accompany the witnesses on a drive from his home to the Manly area. During the drive, the offender said the following: "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."
One of the witnesses asked the offender, "[w]as the gay the kid that died". The offender replied, "[y]eah". I infer from this conversation that the offender was referring to Dr Johnson. The agreed facts then record the following conversation: "Witness 2: See back in them days gay wasn't like it is now. Offender: Like we used to go poofter bashing. Witness 2: Yeah. Offender: Yeah, my brother did. Witness 2: Yeah, [t]hat's why you'd be frightened to tell him, I suppose. Offender: Yeah. Witness 2: Ah well you need never tell him, mate, unless you want to. Offender: No, I don't want to."
When they arrived at Manly, the offender directed the witnesses to an area of around three square kilometres of scrub and bush at North Head, Sydney Harbour National Park. The offender tried to show the witnesses the location where Dr Johnson had left the clifftop. The offender and the witnesses walked along a track near the eastern face of North Head in the direction of Shelly Beach. While they were walking, the offender made various comments, including that he had met Dr Johnson at the Brighton Hotel in Manly, that he remembered "comin up' here with him… talking" and that Dr Johnson took his clothes off. The agreed facts note, that at that point, the offender became "emotional".
The offender and the witnesses walked until they reached the upper Shelley Headland lookout. The offender nominated that area as the spot where Dr Johnson fell, although he said he was unsure. The offender was recorded telling the witnesses that he was there for hours and that he could not recall whether he was intimate with Dr Johnson. The offender said, "I think we had a fight. That's all I can remember… he fell. I took off. Went home, back down to Manly." [6] The offender demonstrated where he and Dr Johnson were standing at the lookout. The offender said, "I hit him. He hit me. He stumbled back. I went to grab him and he… just stumbled back". The offender said he could not recall what the fight was about. The offender then said, "[l]ike I said, I hit him. He stumbled back, I went to grab and that was it. But I don't know if this was the area or not".
The group then left the lookout and continued walking around North Head. The offender said that he did not know where Dr Johnson's clothes had ended up. The offender recalled him speaking with "a bit of an American accent". He again said, "I've tried to grab him" and "he went straight down on rocks". [7]
Later in the conversation, one of the witnesses asked the offender to "go over the whole thing". The offender repeated his account of meeting Dr Johnson at the Brighton Hotel, having a "few drinks" and Dr Johnson suggesting they go to North Head. He denied having sex with Dr Johnson and said he did not know how Dr Johnson "[got] naked". The offender said, "I punched him … He went backwards and I tried to grab him… And he fell". [8] The offender said this occurred near a ledge in an unfenced area. [9] At one point, the offender was asked how he found out that the area was a "gay spot". He said he had found out "years ago". During the drive back to his home, the offender described himself as "very emotional" and commented that he would "[n]ever cope with it".
On 12 May 2020, [10] the offender was arrested and charged with the murder of Dr Johnson. The agreed facts record that, during a telephone call with a relative on 4 October 2022, the offender admitted to hitting Dr Johnson at the cliff in terms consistent with what has already been recounted,
The agreed facts record that the offender "confirms the truth of the admissions" that I have described. [11] This does not mean that the Court is bound to accept any part of his statements to the witnesses that might be considered as mitigating his involvement in Dr Johnson's death.
The following part of the agreed facts is critical to assessing the offender's culpability for the death of Dr Johnson: [12] "The Offender is guilty of manslaughter by reason of an unlawful and dangerous act which caused the death of Dr Johnson. The Offender did an act that caused the death of Dr Johnson, namely, punching him causing him to stumble back and fall off the cliff. The act was unlawful because it was an assault. The punch by the Offender was not in response to any threat of violence, or actual violence, from Dr Johnson. The act was dangerous because a reasonable person in the position of the Offender would have appreciated it was an act that exposed another person to a risk of serious injury. This was because the Offender assaulted Dr Johnson while Dr Johnson was standing in the vicinity of the cliff top which was unfenced."

Disputed Facts and Objective Seriousness

It has long been accepted that, of all crimes, manslaughter is said to "throw up the greatest variety of circumstances affecting culpability" (R v Blacklidge, Court of Criminal Appeal (NSW), 12 December 1995, unrep per Gleeson CJ). There are various forms of manslaughter, including gross negligence and a killing that is otherwise murder but occasioned by gross provocation. No category of manslaughter is inherently more serious than another.
The form of manslaughter to which the offender pleaded guilty is manslaughter by unlawful and dangerous act. As the agreed facts state, the unlawful act was punching Dr Johnson. For an act to be "dangerous", a reasonable person in the position of the offender must have appreciated that the act exposed another person to a risk of serious injury. In this case, the act was "dangerous", at least in part, because of its proximity to the clifftop. The relevant state of mind required to be guilty of this form of manslaughter is an intention to commit the relevant act. It is not necessary for the offender to be subjectively aware that the relevant act was dangerous.
Even with manslaughters by unlawful and dangerous act, there are a variety of circumstances that can render one crime more serious than others. To that end, one of the fundamental aspects of sentencing is to assess the objective seriousness of the specific crime committed (see DS v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; "DS"). However, it is not necessary to determine where the individual offence falls on some hypothetical range of offending. In the case of manslaughter, it is preferable to avoid such an assessment (Paterson v R [2021] NSWCCA 273 at [33]).
Based on the agreed facts, the Crown Prosecutor and Senior Counsel for the offender, Mr Game SC, made submissions about various facts and factors bearing on the objective seriousness of the offender's crime. To the extent I make findings of fact adverse to the offender, then I am satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, then I am satisfied of the relevant fact on the balance of probabilities (see R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ; "Olbrich").
The Crown Prosecutor submitted that the offender's crime was "a serious example of manslaughter entailing a significant degree of criminality". It was submitted that the assault was unprovoked and that Dr Johnson was especially vulnerable being alone with the offender in an isolated geographical area, entirely naked and physically weaker than the offender. The Crown Prosecutor noted that the offender "fled the scene and did not make any attempt to get assistance" or alert authorities to the location of Dr Johnson's body. I accept those contentions. [13]
In his submissions, Mr Game referred to various findings made by Wilson J in White (No 2) and submitted that I should make the same findings other than in one respect. The findings made by Wilson J in White (No 2) are not evidence before me (Evidence Act 1995 (NSW), s 91). I must consider the facts afresh. Nevertheless Mr Game submitted that, like Wilson J, I could not be satisfied beyond reasonable doubt that the offender went with Dr Johnson to North Head with a malign purpose, or that any planning was involved in the commission of the offence [14] or that the killing of Dr Johnson was a "gay hate crime". [15] The Crown Prosecutor did not urge the Court to make findings to that effect.
I will come to the psychiatric evidence concerning the offender shortly, but at this point I note that it confirms that by March 2020 he was very much cognitively impaired. The offender's admissions to meeting Dr Johnson, going with him to a location at North Head adjacent to where his body was found and punching him when he was naked, which caused Dr Johnson to fall over the cliff, can be accepted as reliable given their consistency with known facts. Beyond that, the reliability of the balance of his admissions and statements is affected by a degree of uncertainty given the lapse of time since the offence, the offender's cognitive impairment and his emotional state at various times when speaking to the witnesses. Allowing for that uncertainty, the admissions made by the offender do not support a contention that he planned to hurt Dr Johnson as he went to North Head. While a scenario whereby the offender enticed Dr Johnson to North Head with a plan to attack him is not inconsistent with the objective facts, it is also not demonstrated beyond reasonable doubt either. The same reasoning applies with respect to any suggestion that the punching of Dr Johnson was a "gay hate crime", that is, motivated by hatred of gay men. While the offender said, "we often used to go poofter bashing", that was immediately qualified by a statement that his brother did so and it was never said to refer to his encounter with Dr Johnson. Accordingly, I accept Mr Game's submission.
Mr Game also sought a finding that the offending occurred "quickly and spontaneously". [16] To the extent that this is a reference to punching Dr Johnson and him falling over the cliff, then I accept that is likely. However, it is not known whether the punch was preceded by other forms of aggression or threats and for how long Dr Johnson realised he was in danger.
Mr Game submitted that there was no evidence that the assault was particularly forceful. He also submitted that there was no evidence that the punch was inherently dangerous, as opposed to being dangerous because it took place near a cliff. [17] Both matters can be accepted, but they do not take the matter very far as the punch was near a cliff. I am satisfied beyond reasonable that the offender knew they were near a cliff when he punched Dr Johnson. The offender was familiar with the area and had walked there that evening. I am also satisfied beyond reasonable doubt that the offender was aware of a risk of serious harm to Dr Johnson from falling after being punched, although I do not sentence him on the basis that he foresaw that punching Dr Johnson would probably cause his death or serious harm and continued regardless (i.e. recklessness). [18]
Lastly, Mr Game submitted that the Court should accept the offender's assertion to the witnesses that he tried to "grab" Dr Johnson before he fell. It was submitted that, if that was accepted, then it undermined any suggestion that the offender had any animosity towards Dr Johnson and would mean that the offender attempted to save Dr Johnson's life. The Crown submitted that the offender's references to "grabbing" Dr Johnson do not contain any express statement that he tried to grab him to stop him from falling.
Mr Game submitted that the offender's assertion that he tried to "grab" Dr Johnson was very much bound up with his admission that he punched Dr Johnson so that, in effect, one could not accept the admission of punching without adopting the assertion of grabbing. I do not accept that submission. It is difficult to reconcile with Olbrich and the admission of physical contact causing a fall is at least supported by the self-evident fact that Dr Johnson did fall in circumstances where no reason for the fall other than physical contact with a third person is apparent. Overall, given the misgivings I have in acting on what the offender told the witnesses beyond the basal facts, I am not satisfied on the balance of probabilities that the offender tried to "grab" Dr Johnson before he fell. The offender may now believe that he did so, but that is a different matter. For similar reasons, I am not satisfied that Dr Johnson ever punched the offender.
Even if I had found that the offender tried to grab Dr Johnson before he fell, it would not have much significance given that the admitted act of punching Dr Johnson very much suggests animosity. Moreover, an important matter affecting the assessment of objective seriousness is the offender's total failure to take any steps to seek assistance or notify the authorities of Dr Johnson's fall. I will address the offender's personal circumstances, both as at December 1988 and presently, in some detail shortly. It suffices to state that I accept that, as at December 1988, the offender was 18 years old, disadvantaged, somewhat cognitively impaired and presumably in a state of panic after he saw Dr Johnson fall. However, I do not accept that it was beyond the offender to even make an anonymous call to the police after he scrambled off North Head. The offender left Dr Johnson to die. Such (in)action can increase the objective seriousness of a homicide and they do so in this case (Dulihanty v R [2013] NSWCCA 275 at [68]).
One aggravating factor concerning the offence is that the offender was on bail at the time it occurred, however, that only concerned a charge of offensive language (Crimes (Sentencing Procedure Act) 1999 (NSW), s 21A(2)(j); "the Sentencing Act"). This adds very little to the assessment of objective seriousness.
The end result is that not much is known about the killing of Dr Johnson beyond a punch near a cliff, a vulnerable victim, a fall over the cliff, a death, an absence of taking even the simplest step to render help after the fall and decades of pain and grief that followed. It is not known for how long Dr Johnson suffered, but it is certain that for at least some time he would have been terrified. Within those constraints, I regard the offender's crime as a serious instance of the crime of manslaughter. For the sake of completeness, I note that while I accept the offender's cognitive impairment was operative at the time he punched Dr Johnson, I do not accept that it affects an assessment of the objective seriousness of his crime (cf DS at [96]).

Victim Impact

The Court received five victim impact statements (Sentencing Act, s 30B). Two of the authors, being the victim's brother and sister-in-law, read their statements in open Court. The Crown Prosecutor applied for the statements to be taken into account as an aspect of the harm done to the community by the offender's crime (Sentencing Act, s 30E(3)). It is appropriate for that to occur.
The victim impact statements in this case were especially powerful. Dr Johnson's older brother, Dr Steven Johnson, addressed the Court. He commenced his statement by noting that Scott was "probably giddy with joy" on the day he died as he had just received news from his supervising professor that his proof of a never before solved mathematics problem central to his PhD dissertation had been accepted. Mathematicians are a special breed and peer acceptance of a proof are among the high points in their careers. Dr Steven Johnson contrasted that moment with the terror his brother must have felt as he fell, with thoughts of "what he still hoped to do [with his life], his loved ones, his family, his newborn niece, and his friends" flashing through his mind. Dr Steven Johnson said that the offender's actions, including his failure to check on Scott or notify anyone of his fall, sent him and his family into a "desperate grief" and "allowed us no closure, no peace".
Dr Steven Johnson described in detail the "bewildering nightmare" he and his family were subjected to as they encountered decades of official resistance to their attempts to seek justice for Scott, a matter I will return to. At this point, I note that, while there may have been many contributors to their anguish, it started with the actions of the offender. Dr Steven Johnson recounted his feelings as he witnessed the offender's prevarications and applications concerning his plea. In this Court, the offender has been afforded due process, as is his right, but that does not make the suffering of Dr Johnson's family in witnessing that process unfold any easier. Lastly, Dr Steven Johnson noted that his mother died at the age of 72 "still grieving over her loss and the sickening question of what happened to her youngest child". That is a cruel fate for any parent.
Dr Johnson's sister-in-law, Rosemarie Johnson, also addressed the Court. Rosemarie Johnson is married to Dr Steven Johnson. Their family attended the hearing from the USA. Rosemarie Johnson recounted meeting her husband's quiet young brother in the late 1970s and the three of them becoming close. Although Scott had "genius and promise", her strongest recollection of him was his "kind and gentle" disposition and the time they had spent together. Understandably, like her husband, the pain from the circumstances of his death was compounded by the long years of unanswered questions and unhelpful official responses. Both Rosemarie Johnson and her husband emphasised the decades in which the offender was able to live while Scott's life was over. She said that her heart still breaks when she thinks of "how frightened Scott must have been while falling to his death".
Dr Johnson's older sister, Terry Johnson, and younger sister, Rebecca Johnson, also provided victim impact statements. Terry Johnson stated that losing her "baby brother" was like losing part of herself. Her childhood memories of Scott were strong and she said the pain of his loss is "indescribable". Like the other members of her family, she has been filled with unanswered questions and horror as to what "Scott must have felt as he was falling to his death". Rebecca Johnson was 11 years old when her bother Scott died. In her statement, she recounted her all too short memories of him and the traumatic evening when her parents learned of his death. Like the rest of her family, she described the decades of questions that followed.
Dr Johnson's partner, Michael Noone, provided a victim impact statement. He described the "indelible image" of seeing Dr Johnson's body after he died. He recalled how deeply affected his parents were at Dr Johnson's death and how his mother kept a picture of Dr Johnson until she died in 2016 when she was 90 years old. Mr Noone described the life he and Dr Johnson had built together and how it was shattered by Dr Johnson's death. Mr Noone is a gifted musicologist and sought solace in his love of music. He described Dr Johnson as someone who taught others to listen and never rushed to judgment. He repeatedly referred to the "aching void" from the loss of Dr Johnson and how a day does not go by when he does not hear his voice.
As noted, the present significance of the victim impact statements is that the Court can consider their description of the harmful impact of the victim's death as an aspect of the harm done to the community by the offender's crime (Sentencing Act, s 30E(3)). In making that assessment, it is necessary to focus on what the offender is, and is not, criminally responsible for. I have already noted that the evidence does not support a finding beyond reasonable doubt that the killing of Dr Johnson was a "gay hate crime". In terms of the ongoing grief to Dr Johnson's family from the lack of closure in ascertaining the circumstances of his death, I have also made findings about the failure of the offender to take any steps to seek help for Dr Johnson or even notify the authorities of his presence at the bottom of the cliff. That said, the harm occasioned by any inadequacies in the police investigation into the death of Dr Johnson, including what followed from what appears to be an absurd suggestion that Dr Johnson killed himself and from similar failings in other inquiries about the deaths of gay men are not to be attributed to this offender. The sentencing of this offender is not a means of satiating any understandable community concerns or anger about such failings. Those matters are for another inquiry and another day.
It is more than 34 years since Dr Johnson was killed by the offender. The pain and anguish for his family and partner is still raw. Their sense of loss for a wonderful life that was not lived is very real. These are the forms of harm that follow from the unlawful taking of a human life, especially in circumstances that do not offer closure. They are but part, albeit a very significant part, of the harm occasioned by the offender's crime. The Court extends its condolences to Dr Johnson's family and his partner.

The Offender - Background and Psychiatric History

As noted, as at the date of Dr Johnson's killing, the offender was just over 18 years old. He is now 52 years old. In the absence of many reliable records, the starting point in analysing his circumstances, both then and now, is his criminal record. The record tendered in this Court commences with an assault committed by the offender as a juvenile when he was 16 years old in 1986. From then until 1996, he accumulated a series of convictions for assaults, stealing, malicious damage, offensive language, and similar offences.
In 1987, the offender was committed by the Children's Court to an institution for a period of at least 12 months. It appears that he was only released shortly prior to killing Dr Johnson. In 1990, the offender was imprisoned for three months for assault and again for six months for assault later that year. In 1992, he was imprisoned for three months for assault and he was again imprisoned for 6 months for assault in 1996. The only conviction between that time and the present is for an assault committed in 2008 for which he received a bond.
The offender's criminal history is consistent with the offender's description of himself at around the time he killed Dr Johnson that he gave to the witnesses, namely, that he was effectively homeless, dysfunctional and often resorted to violence.
A deeper understanding of the offender's circumstances is disclosed by various psychiatric and psychological reports that were before the Court. On behalf of the offender, a forensic psychiatric report prepared by Dr Richard Furst dated 31 May 2021, and two psychological reports, one authored by a clinical neuropsychologist, Dr Molly Schafer, dated 26 May 2021, and the other authored by a clinical and forensic psychologist, Dr Katie Seidler, dated 12 October 2021, were tendered. The Crown tendered a report of a forensic psychiatrist Dr Adam Martin dated 24 June 2021.
As noted, these reports were prepared in 2021 and are mainly directed to issues concerning the reliability of the offender's admissions and his fitness to stand trial. The reports contain descriptions of the offender's personal background which are derived from a variety of sources including interviews with the offender, medical records and interviews with family members. Although there are some inconsistencies between those descriptions, those differences are mostly immaterial.
The offender's parents had five children. After his parents separated when the offender was very young, he lived with his mother and siblings in Manly. He had no contact with his father. The offender had learning difficulties in primary and high school and was placed in "special classes" because of problems with literacy and restlessness. It is not clear when he left school, but Dr Furst's report describes him performing various manual jobs for a short period in his early teens. Dr Furst records that, by around age 13 to 14, the offender was drinking alcohol and was homeless, although Dr Shafer states that he left home when he was around 15 years old. Dr Shafer records the offender stating that by that age he was consuming a "cask of wine daily" and experiencing frequent "blackouts" from alcohol intoxication. [19] Dr Furst reports that the offender "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 [the offender] taking an overdose whilst in the Mount Penang boys' home". The medical reports suggest that the offender was the victim of bashings when he was young as well as the perpetrator. The reports are contradictory as to whether he suffered physical abuse at the hands of other members of his family.
Dr Schafer's report indicates that the offender married his ex-wife in 1993. [20] They had six children. The couple separated in 2008 and from 2009 the offender lost contact with his children. The offender blamed his wife for the loss of his family. Although the offender's criminal record during the period of his marriage has relatively few convictions, the marriage was not without incident. He was admitted to the psychiatric wing of a hospital in 2003. His conviction for an assault committed in 2008 appears to relate to the breakdown of his marriage.
Dr Furst described the offender as having "a history of chronic low mood and chronic suicidal ideation, especially after his marital breakdown and the loss of access to his children". Prior to his arrest, the offender was living alone and independently, after spending many years living with his mother as her carer. Dr Schafer's report records the offender stating that he worked in the construction industry until he was 28 years old and received a Disability Support pension thereafter. [21]
Dr Furst examined the offender. Dr Furst described the offender as co-operative and said he presented in a simple manner but was logical throughout the assessment. Dr Furst said the offender reported having poor memory and feeling frustrated but added there were no objective signs of thought disorder, delusions, severely depressed mood or mania. Dr Furst reviewed the offender's medical records, including hospital notes as well as the assessments of other practitioners, and concluded that the offender met the criteria for an Alcohol Dependence Disorder, an Alcohol-Induced Persistent Neurocognitive Disorder and a Borderline Personality Disorder, or at least traits of such a disorder. [22]
In one part of his report, Dr Furst opined on the effect of medical records obtained from Manly Hospital as follows: [23] "Mr White presented to Manly Hospital on over 20 occasions between 1982 and 1993, mostly for minor injuries/ailments. There were reported minor head injuries in the context of fighting, with no reported loss of consciousness, no skull fractures and no evidence of intracerebral haemorrhage, suggesting that any current cognitive impairment is a consequence of his low premorbid level of intellectual function[ing] as a child coupled with the damaging effects of alcohol from decades of heavy drinking."
Dr Schafer performed her own cognitive testing on the offender and had access to previous testing performed by others. Dr Schafer concluded that the offender was "functioning in the range of someone with an intellectual disability of mild severity". Dr Schafer noted that a diagnosis of intellectual disability requires evidence of deficits in both intellectual and adaptive functioning in the "conceptual, social and practical domains" with an onset before the age of 18. Dr Schafer required more evidence of the offender's intellectual and adaptive functioning before the offender was 18 to confirm the diagnosis. [24] Dr Schafer noted that his alcohol dependence was likely to have had a cumulative effect on the offender's cognitive functioning over the years. Dr Schafer opined that his likely low functioning as a child made him more vulnerable to the deleterious effects of alcohol, although she could not pinpoint an exact time when his cognition declined to its current state. [25]
As for the present, Dr Schafer concluded that the offender's current cognitive deficits, impaired adaptive functioning and lack of independence in his daily living activities, such as managing his finances, meant that he met the criteria for a major neurocognitive disorder, formerly known as alcohol-induced dementia. [26] Dr Schafer described the offender's condition as relatively stable given his abstinence from alcohol while in gaol. [27] Dr Schafer concluded that the offender would benefit from an alcohol and drug rehabilitation programme, a memory rehabilitation programme, treatment for anxiety and depression, and vocational training in custody.
Dr Seidler interviewed the offender via audio-visual link on 25 August 2021. Leaving aside the question of whether the offender was physically abused as a child, in broad terms her description of the offender's dysfunctional upbringing and alcohol abuse is consistent with that obtained by Dr Furst and Dr Schafer. Dr Seidler considered that the offender presented as a person "whose neurocognitive functioning ha[d] been adversely affected by years of chronic alcohol abuse". Dr Seidler described the offender as having experienced panic, anxiety, paranoia and stress while in custody, including nightmares of "past abusive experiences". [28]
Dr Seidler's primary diagnosis of the offender was Alcohol Dependence, Generalised Anxiety Disorder, Post Traumatic Stress Disorder, an intellectual disability of mild severity, Major Neurocognitive Disorder and a likely Personality Disorder. Dr Seidler concluded that these conditions were long term and "have a serious impact on [the offender's functioning]" with his neurocognitive functioning likely to continue to decline over time. [29]
The history given to Dr Martin and his conclusions were largely similar to those of Dr Furst. Dr Martin excluded any suggestion that the offender had a major mental illness such as schizophrenia or bipolar disorder. Dr Martin considered that the offender presented with mood instability in association with a "chaotic development history, poor parental modelling, instability in his home environment and relationships", which was complicated by his alcohol and drug use and limited intelligence. Dr Martin agreed that the offender had cognitive deficits as a result of alcohol dependence but considered the formal diagnosis of Neurocognitive Disorder or Alcohol-Induced Dementia to be "tenuous". [30] Dr Martin referred to the offender as having "cognitive deficits as a result of heavy alcohol use on a background of low educational achievement and chaotic development history". [31]
Given the passage of time between the offence and sentencing, it is important to distinguish between what this material reveals about the offender at the time he killed Dr Johnson and the offender now. It was accepted by the parties that it is not necessary to determine whether the offender has alcohol induced dementia, as suggested by Dr Schafer but strongly doubted by Dr Martin, or otherwise resolve such differences of opinion as there are between the diagnoses of the psychiatrists and the psychologists. Instead, the critical matter is the overall uniformity of the medical practitioners' opinions about the offender's circumstances, mental instability and cognitive functioning over time.
As at December 1988, the offender was still relatively young. His family life and schooling was utterly dysfunctional and he had commenced on a lifetime of alcohol abuse. He was homeless and had been so for a number of years. He was physically powerful, prone to violence and prone to being the subject of violence. He had learning difficulties. The reports reveal a degree of uncertainty about the extent of the offender's cognitive impairment at the time he killed Dr Johnson as his cognitive functioning has dramatically worsened in the decades since as a result of continued alcohol abuse. Nevertheless, I am satisfied to the requisite degree that, as at December 1988, he was cognitively impaired to some extent. The offender was clearly a damaged, albeit physically powerful, young man. However, he was not broken as he is now.
By the time of sentencing, the offender's cognitive impairment had deteriorated significantly since his youth. He needs assistance with many aspects of daily living. As these reports, and the material I am about to summarise confirms, the offender is otherwise generally anxious, panicked, confused and, to an extent, paranoid.

The Offender in Custody

An affidavit was read from the offender's solicitor, Jie Hu, who has observed the offender in custody on a regular basis since January 2022. She stated that the offender is anxious and stressed. Ms Hu is also concerned that the offender may harm himself in custody. Ms Hu has communicated with Justice Health about the offender's needs. Arrangements have been made for him to regularly see a psychologist. Ms Hu has also made arrangements for a disability support group to assist the offender in engaging with the National Disability Insurance Scheme.
The offender's cognitive impairment has had, and will continue to have, consequences for how he copes in custody. The offender's written submissions referred to parts of Dr Seidler's report that suggested that his impairment will continue to decline and may not be adequately addressed in custody. [32] I accept these matters, save that any deterioration will be partly offset by the absence of alcohol while in gaol. The submissions noted aspects of Dr Seidler's report that recorded the offender stating that he experienced stress, disturbed sleep, anxiety and panic. [33] This is borne out by various extracts from his prison medical files tendered on behalf of the offender for the period from 1 October 2020 to October 2022. [34]
The offender's submissions also noted that, as the offender has been in custody since May 2020, it can safely be concluded that he has experienced pandemic related restrictions, including restrictions on family visits. [35] I accept this is the case.
On behalf of the offender, it was contended that the Court should be satisfied that the offender's experience in custody to date has weighed more heavily on him than others and it is likely that it will continue to do so given his cognitive impairments and general vulnerabilities. [36] I accept that submission.

Other Factors - Plea, Remorse, Delay and Prospects of Rehabilitation

It is common ground that the offender is entitled to a discount of 10% on account of his plea of guilty to manslaughter entered well prior to any date fixed for trial (Sentencing Act, s 25D(2)(b) and (3)(b)).
On behalf of the offender, it was submitted that the Court should be satisfied on the balance of probabilities that he is remorseful (Sentencing Act, s 21A(3)(i)). The submissions referred to the entries in the agreed facts which describe the offender as "emotional" when speaking of the killing. They also note that Dr Martin recorded the offender feeling sorry for Dr Steven Johnson and inferring "that a guilty finding might put the family to rest". [37] The Crown conceded that references in the agreed facts to the offender becoming emotional were indicative of remorse. [38]
It was also submitted on behalf of the offender that his remorse and willingness to facilitate the course of justice was demonstrated by the circumstances in which he entered a plea of guilty to manslaughter. [39] While at first this appears inconsistent with the offender's attempts to reverse his plea to murder, it was submitted that his entering into discussions with the Crown over a plea to manslaughter in the period immediately after the Court of Criminal Appeal overturned his conviction for murder brought about a degree of "closure". It was contended that the offender ultimately entered a plea which was an "explicit acceptance of responsibility" for Dr Johnson's death. [40] It was submitted that, had the plea not been entered, then it was likely to be many years before the proceedings were concluded.
The evidence that has been adduced about the offender's cognitive impairment and general functioning makes any consideration of whether he is remorseful and, if so, what weight should be attached to any such remorse in the sentencing process, problematic. Even so, I accept that the offender has genuinely expressed remorse at times, although I attribute that little weight in the sentencing exercise. The effect of his cognitive impairment and general dysfunction, both in 1988 and now, on the sentencing process complicates and ultimately subsumes most of the consideration that can be given to such remorse as he has demonstrated. The same applies to his actions and those acting on his behalf in the period after the Court of Criminal Appeal's decision. This Court now has a clear acceptance of responsibility by the offender to a crime whose component elements are clearly identified. That is worth something, but given the other factors bearing on the sentencing exercise, it is not worth a lot.
The offender's criminal record has already been outlined. Although it has particular significance in completing the picture of a dysfunctional young offender with a chaotic lifestyle, it also disentitles him to be sentenced on the basis that he is a person of good character (Sentencing Act, s 21A(2)(d) and (3)(f)). However, the offender's criminal record since 1996, his age and deteriorating level of functioning satisfies me that he is unlikely to reoffend upon his release, at least in any significant manner (Sentencing Act, s 21A(3)(g)). In that sense, he has good prospects of rehabilitation (Sentencing Act, s 21A(3)(h)). To this extent, the delay since the offence has operated in his favour. This is unavoidable, as a proper application of those provisions of the Sentencing Act which oblige the Court to consider such factors, require that it do so based on what is known about the offender at the time of sentencing.

Approach to Sentencing

There are two significant constraints affecting the sentencing process in this case.
First, there is a variation of the so-called "ceiling principle". The "ceiling principle" holds that, if an accused is convicted at a retrial that took place after the quashing of a previous related conviction, the accused should ordinarily not receive a longer sentence or non-parole period than what was imposed following the first trial (R v Gilmore (1979) 1 A Crim R 416 at 419-420). The variation to this principle operates so that, in circumstances where an offender pleads or is found guilty of manslaughter in respect of a killing for which the offender was previously sentenced for murder, then, ordinarily, the sentence imposed for manslaughter should not exceed the sentence that was imposed for murder (R v Armstrong [2015] NSWCCA 273). There is no reason to depart from that principle in this case. It follows that the sentence in this case should not exceed that imposed in White (No 2).
The second constraining principle arises from the passage of time between the offence and sentencing. Sitting at first instance, I am obliged to apply a principle to the effect that, in sentencing an offender for a historical offence, the sentence imposed should be determined in accordance with the sentencing practices applicable as at the date of the commission of the offence where sentencing practices have developed adversely to an offender since that time (R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [31] per Spigelman CJ, [71] per Grove J and [105] per Sully J). This principle has now been abolished by statute, but that abolition does not apply to criminal proceedings that commenced prior to 18 October 2022 (Sentencing Act, s 21B; sch 2; cl 95). [41]
At the very least, a burden of persuasion rests upon the party who asserts that there has been an adverse change in sentencing practices since the time of the commission of an historical offence. This is a difficult task with any manslaughter committed before 12 January 1990, because on that day, the maximum penalty for manslaughter was reduced with retrospective effect from life imprisonment to 25 years as part of the "truth in sentencing reforms". [42] Even so, Mr Game noted that in White (No 2) (at [138]), Wilson J expressed confidence that in the late 1980s sentences for murder were on average lower than they are presently and the parole regime was more favourable to offenders. He submitted that the same would apply for sentences for manslaughter. Her Honour's finding on that topic was reflected in the sentence imposed for murder which, as I have explained, operates as a constraint on the sentence I can impose and it has otherwise ameliorated it.
In relation to the non-parole period, I accept Mr Game's submission that the Court should make a finding of "special circumstances" under s 44(2) of the Sentencing Act to reflect a historical practice whereby the non-parole period was approximately two-thirds of the total sentence (see White (No 2) at [144]; AJB v The Queen (2007) 169 A Crim R 32; [2007] NSWCCA 51 at [37]). [43] This will assist the offender in reintegrating into the community.
The effect of Mr Game's submissions is that the offender has a strong subjective case. At various times, the Crown Prosecutor accepted that was so, although it was contended that the objective seriousness of the offending was the dominant factor in sentencing. I broadly accept that proposition. That said, the significance of the findings concerning the offender's subjective circumstances to the various purposes of sentencings must be stated.
The effect of the findings that I have made about the offender's circumstances at the time of the offence means that he was then a youthful violent offender with learning difficulties and a degree of cognitive impairment, all of which were affected and exacerbated by a disadvantaged background that was, or bordered on being, abusive. Sentencing courts are obliged to consider the effects on an offence and on an offender of each of an offender's youth, [44] mental illness or impairment, [45] and background of social disadvantage, especially one which involves an exposure to violence. [46] When all three matters are present, it is artificial to disaggregate them. [47] The end result is that on the evidence and findings I have made, all of those matters contributed to the offending and reduced the offender's moral culpability. [48]
The effect of the findings I have made about the offender's current circumstances, specifically his cognitive impairment, the degree to which he experiences hardship in custody and the unlikelihood of his re-offending, means that the necessity for the sentence imposed to reflect general deterrence is reduced (Sentencing Act, s 3A(b)) as is the need to protect the community from him and deter him from offending further (Sentencing Act, s 3A(b)−(d)). There remains the necessity to ensure the offender is punished (Sentencing Act, s 3A(a)), that the offender is held accountable and denounced for his actions (Sentencing Act, s 3A(e) and (f)), and that the harm caused to the victims and community is recognised (Sentencing Act, s 3A(g)).

Conclusion

The family and partner of Dr Scott Johnson remember him as brilliant, gentle, considered and considerate. Their love and grief has endured for decades. I doubt that the imposition of sentence on the offender for the second and hopefully last time will bring closure in respect of the terrible events surrounding his death and their aftermath. However, it is be hoped that it at least represents progress towards that end.
As the product of dysfunction, the young man who killed Dr Johnson was cognitively impaired, damaged and violent. That same man, now much older, appears to no longer be violent but his impairment and dysfunction are more pronounced. Those considerations, along with the severity of his crime and the profound loss occasioned by the killing of Dr Johnson, all fall to be represented in a single set of numbers, being the offender's sentence.
Prior to any discount for the offender's plea of guilty, that sentence is 10 years imprisonment. After allowance for the plea of guilty the total length of the sentence will be 9 years. Reflecting the finding of special circumstances, the non-parole period will be 6 years. As the offender was taken into custody on 12 May 2020, his sentence will commence from that date.
Scott White, the offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW)). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed.
Scott White, for the manslaughter of Scott Johnson, I note that you have already been convicted. You are now sentenced to imprisonment for 9 years. Pursuant to s 44(1) and (2) of the Crimes (Sentencing Procedure) Act 1999, I set a non-parole period of 6 years commencing on 12 May 2020, and an additional term of 3 years commencing 12 May 2026 and ending on 11 May 2029.
The sentence will be taken to have commenced on 12 May 2020. The offender will be first eligible for release on parole on 11 May 2026. The sentence will expire on 11 May 2029.

Endnotes

Former s 24 of the Crimes Act 1900 (NSW); now s 18(1)(b).
Tr 23/02/2023 p 4.
id.
Agreed Statement of Facts ("SOF") at [6] to [8]
SOF at [15].
SOF at [22].
SOF at [24].
SOF at [25] to [26].
SOF at [27].
CB at 1.
SOF at [31].
SOF at [32].
SOF at [8].
See White (No 2) at [75] and [77].
See White (No 2) at [76].
citing White (No 2) at [77].
Offender's submissions at [12].
cf White (No 2) at [73].
Defence Bundle, Exhibit 1, "DB 20 at [2.8].
DB at p 19.3.
DB at p 19.8.
DB at 11.
DB at 5.
DB 26 at [6.4].
DB 29 at [7.23].
DB 27 at [7.3].
DB 26.
DB 43 to 44.
DB 56 at [85].
CB at 50.
CB 52.
Offender's submissions at [36]
Offender's submissions at [35]
Offender's submissions at [38]; DB at 70 to 119
Offender's submissions at [39]
Offender's submissions at [40]
CB p 43 at [16].
Crown submissionss at [19]
Offender submissions at [29]
Tr 06/06/2023 p 7.
Crimes (Sentencing Procedure) Amendment Act 2022 (NSW), s 2).
See Crimes Act, s 431A(5); Crimes (Life Sentences) Amendment Act 1989 (NSW); New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 November 1989 (Second Reading, Crimes (Life Sentences) Amendment Bill 1989 (NSW), Prisons (Serious Offenders Review Board) Amendment Bill 1989 (NSW) and Sentencing (Life Sentences) Amendment Bill 1989 (NSW)).
Tr 06/06/2023 at p 10.37.
KT v R [2008] NSWCCA 51 at [22] to [26].
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; "Bugmy".
DS at [156].
Bugmy at [44]. 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: 08 June 2023

Crimes (Life Sentences) Amendment Act 1989(NSW)

(Crimes Act 1900(NSW)

(Evidence Act 1995(NSW)

Crimes (Sentencing Procedure) Amendment Act 2022(NSW)

At a glance

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