Regina v Johnson [2007] NSWSC 274 | Case summary

The circumstances of the offences 4 The offender was well known to both of the deceased. They lived in very pleasant surroundings on a rural property at South Maroota. During 2005, their lives had taken on a well-balanced and satisfactory aura. They were retired. They were reasonably well off. They were enjoying their retirement in every respect and no doubt expected that they would continue to enjoy it for many years to come. They had children who loved and respected them. They had family who loved and respected them. Their weekly routines were well settled. They read, enjoyed walking and other physical activities. Although they kept to themselves, they were well respected in their local community. Neither they nor their family could have had any expectation of the terrible tragedy that was to befall them. 5 The offender had for some years done part-time work as a handyman. In that capacity, he provided handyman services to Mr & Mrs Hughes. He mowed their lawns and did other odd jobs around the place. There is every reason to believe that they trusted him. On his invoices to them, there are wishes that they would have "a Happy Christmas". Mr & Mrs Hughes could have had no expectation that this well liked and trusted handyman would brutally and cruelly bring to an end their idyllic retirement and their lives. 6 The offender last provided handyman services to the Hughes in about March 2005. It seems that, after this time, his life, in many respects, spiralled out of control. First, there had been the break-up of his marriage to Gail Johnson. This had been a bitter dispute. The wrangling continued throughout 2005. Secondly, the offender was in grave financial difficulties. The offender decided that he would leave New South Wales and he contemplated purchasing a hotel business in South Australia. He commenced negotiations with Mr & Mrs Brian Rolfe in relation to the purchase of the Hoyleton Hotel in South Australia. On 27 June 2005, agreement was reached between the offender and the Rolfes that he would buy the lease for the hotel with the intention of buying the freehold over time. A written contract was executed in early July 2005, which required, in effect, a deposit of $10,000. The offender however, did not have the funds to make this initial payment. He had told the Rolfes that he was going to get money from the sale of a number of horses to finance the overall purchase. An application was made to the South Australian Licensing Board for a transfer of the hotel licence. Mr Geoff Stevens, a conveyancer, was acting for both parties at that stage. A number of requests were made through his office for the offender to provide details of the source of finance for the completion of the purchase of the lease. These details however, were not provided. The reason was the offender did not have the funds, or the means to obtain the funds, for the contemplated settlement. Originally, the settlement was planned for mid-August 2005. The offender did not complete the transaction on that day and, in effect, called the settlement date off. A new settlement date was arranged for 31 August 2005. This date came and went, and a third settlement date for 18 November 2005 was programmed. 7 Mrs Rolfe spoke to the offender many times by telephone during the period between July and September 2005. The offender told her that he was still to sell his horses but he was still keen to proceed with the transaction. The Rolfes were very disillusioned by now. On 19 September 2005, Mr Steven's office forwarded a Notice of Termination of the Contracts to the offender. The purpose of doing this was to make one final attempt to have him comply with his contractual obligations. The offender received these Notices of Termination at one or other of his Post Office addresses on either 20 or 21 September 2005. These were unequivocal notices informing the offender that the contracts were at an end because of his failure to complete. There were, however, telephone discussions between the offender and the Rolfes. It was agreed that if he were to pay $10,000 forthwith - the deposit monies - the contracts would be reinstated. The Rolfes asked him to send the money to their conveyancer Mr Stevens by cheque. The offender however, said he would bring it to them in cash. The final arrangement was that the offender had to arrive at Hoyleton in South Australia no later than Monday 26 September 2005 with the cash to pay the deposit monies. If he did not comply with this arrangement, the transactions would be terminated once and for all. 8 I am satisfied that as at 21 or 22 September 2005, the offender now found himself in an impossible and desperate situation. He had no money and he had no prospects of raising any money by legitimate means. He was intent on keeping the transaction with the Rolfes alive but he could not do so unless he could put his hands urgently on $10,000 cash. 9 I am satisfied beyond reasonable doubt that, shortly prior to 23 September 2005, the offender settled upon a plan to get the cash necessary to pay the deposit. He decided that he would steal and use Bankcards owned by his former employers Mr & Mrs Hughes. Now, it is fair to say that there is no direct evidence of the precise sequence of events that occurred on 23 September 2005. There is a good deal of circumstantial evidence, however, including the finding of DNA consistent with that of the offender on the ligatures that were used to strangle the deceased and on other items located at the crime scene. Despite the absence of direct evidence, I am satisfied that the likely events of 23 September 2005 occurred in the sequence I shall now describe. 10 The offender left Patricia Ingrey's home at Bligh Park fairly early in the morning of 23 September 2005. At some time between 10.57am on 23 September 2005 and 11.39am on that day, Ian Hughes left the South Maroota premises and went to the Pitt Town Post Office to retrieve his mail prior to returning home. This was, in fact, the last known sighting of Ian Hughes. The offender in the meantime had kept the South Maroota home under observation. He observed Ian Hughes' departure. The offender then spoke to Anna Hughes and persuaded her to let him into the house where she was alone. The offender quickly forced her into a cane wicker chair in the master bedroom. Three ligatures were used to bind her to the chair. These consisted of a lady's fashion scarf, a navy blue coloured men's tie and the cord from Ian Hughes dressing gown. She was bound to the chair at each wrist and ankle. Either then or later on that morning, the offender tied four further ligatures around the neck of Anna Hughes and strangled her to death. These ligatures were two ladies scarves and two tea towels. 11 When Ian Hughes returned from the post office, he entered the house. He was struck from behind with a blow to the rear of his head. The blow may have rendered him unconscious temporarily but it certainly immobilised him for the purposes of the offender. Mr Hughes was taken to a second bedroom in the house and he too was tied to a cane wicker chair. This bedroom was used as a study. The ligatures used to bind Ian Hughes to the chair consisted of two men's ties and the cord from Anna Hughes dressing gown. At some stage, he was gagged with a scarf and blindfolded with a tea towel. 12 It is likely that the offender, using threats and coercions, playing one off against the other, obtained from either or both of Mr & Mrs Hughes their Bankcard PIN numbers. The offender used the ligatures around the neck of Ian Hughes to strangle him to death, although it is impossible to know precisely the time at which this happened on 23 September 2005. 13 DNA profiling on six items at the crime scene were later found to have come from a major contributor with the same DNA profile as the offender. Especially significant was the DNA profiling emerging from samples taken from the red and white scarf which had been tied around the neck of Ian Hughes and which had been used to strangle him. An expert witness, Michelle Franco, had given evidence that the DNA located on this scarf, in the position near the knot that was tied, could be from two male contributors. On the assumption that one of the contributors was the deceased himself, the profile of the second major contributor was expected to occur in fewer than one in ten billion individuals in the general population. The offender had the same DNA profile in the "Profiler Plus" system as this second contributor. In relation to the five other articles listed in Exhibit "EE", there were sample DNA on each of these items, which could be from the offender. The statistical frequencies emerging from the statistical analysis varied in relation to these other five items. There is no need for me to list them all here. The DNA evidence, taken as a whole, was a powerful part of the Crown circumstantial case, although it did not of itself, identify the offender as the person who had killed each of the deceased. The offender did not seriously dispute that the DNA found at the crime scene was his, or that it was at least consistent with being his. Rather, the offender gave evidence before the jury that, at various times, he had been asked to clean out the drawers and cupboards in the house and to shake out clothing to remove powder and other debris, following domestic painting and sanding in the house. He also gave evidence that he had on occasions brought washing in from the line, or hung out washing on the line, including intimate clothing belonging to Mrs Hughes. I reject this evidence as a fabrication. I am satisfied beyond reasonable doubt that the DNA found on the crime scene items came there as a result of the offender handling those items on the day when he killed each of the deceased. 14 To return to the narrative of 23 September 2005, the offender had now achieved his object. He had the Bankcards, he had the PIN numbers. I am satisfied beyond reasonable doubt that he killed both Mr & Mrs Hughes so that his theft and use of their cards would not be discovered and sheeted home to him. He knew he would be leaving for South Australia within a couple of days. He decided that he would simply leave the bodies bound and tied in the two bedrooms in the hope that they would not be discovered for sometime. This proved to be the situation. Calls were made to the deceased's home over the next few days but there was no answer. Mr Paul White of Ponderosa Pest Control had made an arrangement to visit the property on 27 September 2005. He attended at the property, knocked on the door but there was no answer. He heard the phone ringing inside but no one answered the call. Mr White left his card in the door and went about his business. Family members unsuccessfully tried to contact them. But it seems that it was thought that they may have been holidaying at Kiama. As the days went by, however, one of their sons, David Hughes, became more and more concerned about them. It was he who, on 29 September 2005 went to the South Maroota residence and encountered the dreadful and ghastly sight of his dead murdered parents. 15 As I say, the offender simply left the bodies there to rot. He took the Bankcards and, at about 1.16pm on 23 September 2005, he made his first attempt to take money from their accounts. This first attempt was made at the Riverstone National Bank ATM. The offender endeavoured to access Mr Hughes ANZ Bank account at this ATM. He attempted to withdraw $1,000 but the attempt failed. Exhibit "HH" demonstrates that the offender attempted to access the cheque account of Mr Hughes banking facility with the ANZ bank. This was, however, an invalid account. He tried a second time endeavouring this time to access the savings account but this also failed. At approximately 1.42pm, the offender drove to, and endeavoured to use, an ATM machine located at the St George Bank Rooty Hill. By using this ATM machine, the offender sought to access $1,000 from Anna Hughes St George Account. He was successful in this endeavour. A few minutes later, at 1.44pm he obtained a further $1,000 from the St George joint account of Mr & Mrs Hughes. Once again, he used the ATM at Rooty Hill. Those were his only uses of the cards on that afternoon. Unfortunately, for the offender, expert evidence from Telstra was later able to place the offender in proximity to the Riverstone ATM and the Rooty Hill ATM at the relevant times on that afternoon. I say it was unfortunate because, in general terms, the alibi relied upon by the offender was that throughout the early afternoon he was at Patricia Ingrey's house at Bligh Park or, if he were elsewhere, it was at a nearby service station. The evidence from Mr Wilson of Telstra gave the lie to this and suggested that between about 1.15pm and 1.45pm the offender (or at least his mobile phone) was moving in a southerly direction from Riverstone towards Rooty Hill. 16 On the evening of 23 September, at about 10.25pm, the offender went to the ATM machine at the Windsor ANZ and withdrew $200 from Ian Hughes Credit account with the ANZ bank. This was the account he had unsuccessfully attempted to use earlier in the day. There was CCTV footage of the person who used the ATM on this occasion. There was also CCTV footage of the person who used the same ATM on 25 September 2005 at 5.12am. None of the witnesses was able to identify the offender in relation to the footage taken on these two occasions. Both the offender's ex-wife and a friend, Mr Mott, gave evidence that the offender had an unusual way of walking, and holding himself when walking. I am satisfied that the person shown on the footage is the offender. Although the footage is unclear and imprecise in certain areas, there is a strong resemblance between the person shown in the footage and the offender. In particular the person in the footage has the very characteristics referred to by the offender's ex-wife and Mr Mott. The offender denied that he was the person shown in the footage but I reject this evidence. I am satisfied beyond reasonable doubt that it was he who used the ATM machine on each of these occasions. 17 There is no need for me to detail each of the uses either made or attempted of the various accounts. They are set out conveniently in Exhibit "HH". I am satisfied beyond reasonable doubt that early in the morning on 24 September 2005 the ATM's at the Rooty Hill Commonwealth Bank and the St George Bank were used by the offender and funds were taken from the accounts shown in Exhibit "HH". Similarly early in the morning on 25 September the ATM at the Windsor St George Bank and the Windsor ANZ Bank were utilised to take further monies from the accounts shown in the exhibit. Finally, on 26 September 2005, the offender used the ATM, at the Windsor St George Bank to collect further monies from Mr Hughes' account, Mrs Hughes account and their joint account. These three ATM transactions on 26 September 2005 yielded the offender a further $3,400 in all. It was on this morning that the offender left to go to Hoyleton. He had taken in all $12,400 from the various bank accounts. He arrived in Hoyleton on the evening of 26 September 2005. Early on the next morning, the offender gave Mrs Rolfe $10,000 in cash to keep the contracts on-foot or, perhaps more accurately, to reinstate them. These payments came from the money the offender had dishonestly and improperly obtained from the various bank accounts I have mentioned. 18 During the trial, the offender gave evidence that he had access to $51,000 in cash at Hoyleton on the morning of 27 September 2005. He had said that he had sent this money in a trunk to Hoyleton back in July 2005. Further, he said that when the trunk was later given to the police and opened by the local police, the money was no longer there. It was the offender's case that, more likely than not, the police themselves took the $51,000 from the trunk when it was seized in November 2005. I reject this suggestion. This evidence was a fabrication. I do not accept that the offender ever had $51,000 in cash in his possession in Hoyleton. As I have said, the monies for the $10,000 payment to Mrs Rolfe came from the bank accounts of Mr & Mrs Hughes, unlawfully accessed by the offender. 19 There were no further withdrawals from the various bank accounts of the Hughes after 4.31am on 26 September 2005. This was a significant circumstance. I am satisfied beyond reasonable doubt that this was because the offender knew that he might well be traced if he attempted to use the cards either on his way to or when he was in South Australia. Moreover, by the time he left Windsor on 26 September, he had secured enough money to pay the deposit and reinstate the contract with Mr & Mrs Rolfe. 20 It is appropriate to observe that the offender displayed a completely callous and contemptuous disregard for the deceased arising out of the fact that he left their bodies, in effect, to rot in the house at South Maroota while he made his way to South Australia. 21 The offender remained in Hoyleton until the 18 November 2005 when he was arrested by the South Australian police on the Balaclava to Auburn Road near Hoyleton. His room at the hotel was searched under an extra territorial warrant and a number of items were seized for forensic examination. New South Wales police present in Adelaide sought to interview the offender however, he refused to answer any questions in relation to the matter. He appeared before the Adelaide Magistrate's Court on Monday 21 November 2005 and was remanded to appear in Sydney on 22 November 2005. 22 I should add that the offender at no time completed the purchase of the business of the Hoyleton Hotel. Although he maintained that this was because he had become dissatisfied with the trading of the hotel and its physical condition, the real reason was that he had no funds to make the final payments. Moreover, on 4 November 2005, the offender had written to the Office of the Liquor and Gaming Commission informing them of the supposed source of the funds for the proposed purchase of the business of the Hoyleton Hotel. The offender stated that these funds would be provided from the sale of thoroughbred horses. The letter enclosed faxed copies of letters of confirmation of the sale of three horses. The principal one of these was the sale of a horse, Admiral Quest, for $60,000. The purchaser was Mrs Ann P. Hoinville of Maroota South. Mrs Patricia Collins gave evidence at trial. She had once been in a relationship with the offender. She said that she was the person described as "Ann P. Hoinville" in the document sent to the South Australian Liquor Commission. She had agreed to sign the document at the request of the offender. Mrs Collins said that she did not know why the offender had asked her to do this but the fact was she had no money and she had no intention of buying any horse from the offender, nor did she have the means to do so. Hoinville was her maiden name, although she had never been known as "Ann Hoinville". 23 The offender himself conceded during his evidence this was a bogus transaction. He maintained that he had supplied the false document to the South Australian Liquor Commission because he had been advised by an Adelaide lawyer that it was necessary to show the source of funds for the purchase of a licensed outlet. I reject this evidence and find that the bogus transaction was placed before the South Australian Licensing Commission because the offender, in truth, had no funds, nor any source of funds, available to him for the completion of the hotel. He did it in order to keep the transaction alive in the hope that presumably, he would obtain funds from somewhere to complete the purchase.

Resolution of the issues 27 The crime of murder carries with it a maximum penalty of life imprisonment (s 19A Crimes Act). There are two propositions, which need to be stated before considering the application of s 61 of the Crimes Act. First, it is to be accepted that there is an inter-relationship between s 61(1) of the Act and the common law. The imposition of a maximum penalty for an offence at common law is a sentencing option reserved for cases which can properly be categorised as falling within the worst category of cases for which that penalty if prescribed (Ibbs v R (1987) 163 CLR 447 at 451-452). In R v Twala (NSWCCA unreported 4 November 1994) Badgery-Parker J, with whom Carruthers and Finlay JJ agreed said: - "…In order to categorise any cases being in the worst case category it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)". 28 Heinousness has been described as meaning "atrocious, detestable, hateful, odious, greatly reprehensible and extremely wicked" - R v Harris (2000) 50 NSWLR 409 at 423 (85) quoting from R v Arthurell (Supreme Court of New South Wales unreported, 3 October 1997 at 11). In Harris, which concerned the application of life sentences in respect of three murders committed over a period of a month, Wood CJ at CL (with whom Giles JA and James J agreed) accepted that two avenues for a life sentence continued to exist after the enactment of s 61, one arising at common law and the other arising under s 61. His Honour further observed: - "[87] It is not at all clear to me that the assessment whether a case falls within the "worst case category" at common law is any different from that postulated under s 61(1). The decision in Veen v The Queen [No 2] , permits reference at common law to background material for the purpose of assessing moral culpability, and dangerous propensity and there is long-standing precedent for regard to be had to each of the matters specified in s 61(1) when considering sentence. [88] Similarly to the view offered by Hunt CJ at CL in R v Kalajzich (1997) 94 A Crim R 41 in relation to the former s 431B(1) of the Crimes Act , I doubt that its successor (s 61(1) of the Crimes (Sentencing Procedure) Act ) adds anything to the common law. His Honour there observed (at 49): 'It [s 431B(1)] adds nothing at all to the common law relating to the imposition of maximum penalties, except the danger that it may eventually be interpreted as replacing the common law by an ill-defined code which eventually become narrower than the common law.' (New South Wales Law Reform Commission, par 9.13) [89] So far as the submission advanced by Mr Berman SC assumes that s 61(1) of the Crimes (Sentencing Procedure) Act is narrower than the common law, then I am not persuaded that there is authority, or good reason, for such an assumption. [90] That is not to say that the common law has been abrogated, or that those decisions which gave content to the meaning of the expression "worst case" are no longer of relevance. It may be that future development of the common law will embrace a situation calling for a life sentence that would not be justified under s 61(1) of the Crimes (Sentencing Procedure) Act , which in any event although expressed in mandatory terms, on one view arguably remains subject to a discretion to impose a lesser sentence than life by reason of s 61(3)." 29 The second proposition is that stated by the Court of Criminal Appeal in the recent decision of Crespin Adanguidi v R (2006) NSWCCA 404; BC 2006 10606. In that case, Hislop J with whom Spigelman CJ and Sully J agreed, said (in reference to an earlier decision of Aslett v R (2006) NSWCCA 360): - "In my opinion the difficulty identified by McClellan CJ at CL does not arise in a case such as the present where the three murders occurred at essentially the same time and place and are all part of the one episode of criminal conduct. These circumstances were capable of informing the objective criminality of each offence. In these circumstances the Court may have regard to the whole of the conduct in determining the level of culpability involved in the commission of each offence. The imposition of a life sentence for each murder may provide a just and appropriate measure of the total criminality involved. Such a case is not one of the punishment being increased by reason of previous offending." 30 In my view, each killing in the present matter may legitimately be said to have that heinous nature or character that is required before the offence must be seen to fall within the worst category. But, even if that were not so, as Adanguidi makes clear, the circumstances of the present two murders certainly entitle the Court to have regard to the whole of the conduct of the offender in determining the level of culpability involved in the commission of each offence. Whether one approaches the matter from the point of view of one murder at a time, or whether one looks at the overall circumstances of the two murders, committed as they were on the same day and as part of the one criminal enterprise, the position is the same. 31 The murders were cold, calculated killings. The death of each deceased was likely to have taken some time. The murders were committed in such a way that the victims would have been in great distress and fear throughout the terrifying ordeal. That this is so emerges from the elaborate way the victims were tied up and kept in separate rooms in the house. The strangulation was not just with one scarf but a number of scarves. Of course, it is impossible to know precisely what happened throughout these dreadful events. But it is clear that the ultimate aim of the offender was to get control of the Hughes' Bankcards and obtain information about the PIN numbers that would enable their various bank accounts to be accessed. I am satisfied that there would have been an element of mental torture in the way the offender was likely to have played off one spouse against the other in order to obtain the cards and the necessary information for his dishonest purpose. Although Mr Hughes was struck on the back of the head, I am satisfied that this was done to render him powerless so that he could be tied up and restrained in the position in which he was found. I am perfectly satisfied, and satisfied beyond reasonable doubt, that each of these unfortunate people died in great fear and distress, and at the hands of someone they had trusted over a number of years as their handyman. 32 The nature of the killings, as frightening, shocking and coldly brutal, can be seen from the crime scene photographs that were available in the trial. They are chilling in the extreme. 33 On the other hand, I cannot say that the evidence satisfies me beyond reasonable doubt that, were the offender to be released, he would be a danger to the community. The evidence does not enable me to go that far. But the absence of any such finding does not preclude the Court concluding that a life sentence is warranted (Hillsley (2006) NSWCCA 312 at (26); Knight (2006) NSWCCA 292 at (23)). In my view each of these crimes was so wicked, so cruel and so horrible that a sentence less than a life sentence could not adequately reflect the community interest in retribution and punishment, quite apart from any potential for rehabilitation or consideration of any need to protect the community. 34 I am satisfied beyond reasonable doubt that the offender went to the home of the Hughes on the morning of 23 September 2005 at all times planning to kill them once he had obtained the Bankcards and the information he needed to use those cards. The elaborate method of their bondage, and the way in which Mr & Mrs Hughes were placed in separate rooms, shows a degree of planning and an elaborate method of carrying that planning into execution. The evidence points completely away from any suggestion that the offender simply erupted in some kind of rage and struck out at each of the deceased in frustration and anger. Every aspect of the evidence points to the carrying out of a carefully thought out plan. The nature of the bindings, the absence of fingerprints, the leaving of the bodies after death, all demonstrate a premeditated course of conduct designed to save the offender from being caught out once he had taken the money he needed from the Hughes' bank accounts. As I have said earlier, the evidence satisfied me beyond reasonable doubt that Mrs Hughes was tied up in the main bedroom before Mr Hughes came back from the Post Office. The offender was waiting for him and, after he had struck him from behind, he was then bound, blindfolded and ultimately gagged in the study. This is an aspect that demonstrates the careful planning involved in the criminal enterprise. 35 There is absolutely nothing to mitigate the objective seriousness of each offence. Consequently, I am satisfied that the level of culpability in the commission of each offence is so wicked, heinous and extreme that the community interest in retribution punishment community protection and deterrence can only be met through the imposition of a life sentence in each case. The test in s 61 of the Act has plainly been met in the case of each murder. 36 I have, of course, given consideration to the subjective case of the offender. It is true that he appears to have led a blameless life and, apart from some traffic matters, has no criminal convictions of any kind whatsoever. He is 53 years of age, has been married, and is the father of at least two children. I can gain no insight into what would have driven the offender into a situation where he would act so wickedly, so cruelly and viciously, especially in circumstances where he had hitherto led a blameless life. Of course, he was driven by a desperate need for money. But that statement gives little insight into what would have led him to the level of cruelty involved in each of these murders. I must give him credit for his prior good character. But it is completely overshadowed in this matter by the objective level of seriousness and criminal culpability in relation to each of the murders. 37 The offender has shown no remorse or contrition whatsoever for his terrible actions. There is no doubt he was perfectly entitled to deny that he had killed Mr & Mrs Hughes and that is the stance he took throughout the trial and throughout the sentencing process. He is not to be punished for that. But it does mean that he can get no allowance whatsoever for remorse or contrition. 38 I propose to sentence the prisoner to life imprisonment in relation to each of the murders of which he has been found guilty. In relation to the minor offences, I impose the following sentences: - 39 Peter James Johnson, for the stealing charge, I sentence you to a fixed term of 12 months imprisonment. The sentence will commence today and expire on 28 March 2008.

Regina v Johnson

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Judgment (20 paragraphs)

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Cases Cited (5)