R v Johnson

1. [1]

   Dale Ryan Johnson is to be sentenced on his plea of guilty to the murder of Cheree Anne Lawson at Coomealla near Dareton on 12 March 2013.

2. [2]

   In sentencing him, I will take into account a further offence of assault occasioning actual bodily harm on the same victim. The fact that there is a further domestic violence offence to be taken into account increases the weight to be given to both personal deterrence and retribution: see Attorney General’s Application No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42]

Plea of guilty

1. [3]

   The offender pleaded guilty on 8 August 2014 in the arraignment list in the Supreme Court. He had offered to plead guilty to manslaughter while the matter was still before the Local Court but that offer was (properly) rejected by the Crown.

2. [4]

   I am told (and accept) that the matter was never listed for trial and the accused indicated by his early offer to plead guilty to manslaughter that there would be no contest that he was criminally responsible for the death of Ms Lawson. No witnesses were called at the committal hearing and an application for an adjournment in the Local Court was refused. The purpose of the adjournment application was to determine some outstanding issues that may have borne upon a consideration of a defence of substantial impairment which arose from the report of a psychiatrist (Dr Furst). I accept from senior counsel (who unsuccessfully sought the adjournment before the learned Magistrate) that, had that matter been properly considered at that stage, the plea may have been entered prior to committal.

3. [5]

   The Crown has indicated that the offender is entitled to a discount or reduction in his sentence of “between 15-18%”. In the exercise of discretion, I propose to reduce the sentence by just slightly less than 20% to reflect the utilitarian value of the plea. In reaching that discretionary judgment, I have taken into account:

Controversies between the parties

1. [6]

   While the facts are agreed, there remain a number of controversies between the offender and the prosecution.

2. [7]

   One of those concerns the intention of the offender – that is, did he act with an intention to kill or with an intention to inflict grievous bodily harm. The second is whether the offender should be sentenced on the basis of a loss of self-control or whether any such loss of control is a mitigating feature. The third is the relevance of evidence that the offender was exposed at an early age to alcohol-fuelled violence within his family. Finally, the parties disagree about the proper categorisation of the objective seriousness of this offence and whether, for the purpose of s 54A Crimes (Sentencing Procedure) Act 1999 (NSW), it falls within the middle-range of objective seriousness of all offences contemplated by the crime of murder.

3. [8]

   To understand my resolution of those disputes, it is necessary to recount the awful factual circumstances that led to the death of Cheree Lawson. As I have said, these facts are agreed.

4. [9]

   The offender and the deceased had been involved in a relationship for about six months. There had been violence within the relationship and a number of witnesses told police that the offender was jealous of the relationship between Cheree and her former partner (Cale Wallace). On 16 February 2013 the offender committed the offence on the Form 1. This involved hitting the deceased with a brick and seemed to arise as a result of him wanting money for drugs. I now recount the events of the night as agreed between the parties:

5. [10]

   The accused has been in custody solely in relation to this matter since 12 March 2013 and the sentence that I impose will commence on that date.

6. [11]

   In relation to the cause of death, the agreed statement of facts continues:

7. [12]

   The Crown also points to the following parts of the post mortem reports:

8. [13]

   There are also a series of photographs which depict the many physical injuries that Cheree was subjected to in the period before she died.

9. [14]

   The deceased had a significantly raised blood alcohol reading of 0.186g/100ml blood. The pathologist said that there is a “well recognized risk of sudden death with the association of a high blood alcohol and blows to the head where it is thought that alcohol significantly potentiates the concussive effect of post-traumatic apnoea”.

Intention to kill or inflict grievous bodily harm

1. [15]

   As terrible as these facts and injuries are, I am not persuaded beyond a reasonable doubt that the offender intended to cause the death of Cheree Lawson. While the assault, or series of assaults, was sustained and brutal, the physical acts themselves do not establish an intention to kill.

2. [16]

   Repeatedly punching, kicking and restraining a person may often result in serious injury but it is not inevitable, or indeed very common, that it results in death. The role that the blood alcohol concentration may have played in Cheree’s sudden death may be well recognized in medical circles but it is not a matter of general knowledge and would not have been known to the offender.

3. [17]

   In terms of the acts of an offender giving rise to an inference of an intention to kill, the matter can be contrasted with a case where the offender shoots the victim or strangles or chokes the victim or uses a knife to slit the victim’s throat.

4. [18]

   Further, nothing in what the offender said at the time of the assault or in its aftermath suggests that he intended to kill Cheree Lawson. His interactions with Raylene Carter, John Mitchell and Roger Carter shortly after the fateful events suggest that he did not intend to kill the victim. That evidence is far from conclusive but it does not bespeak an intention to kill.

5. [19]

   Further, as Mr Wilson SC submitted, the injuries and investigation of the scene shows that there was at least one knife available to the offender and he did not use it in such a way as to evidence an intention to kill Cheree.

6. [20]

   Finally, the offender’s action of “trying to revive” Cheree (Lawson) is not consistent with an intention to kill. Again, the fact that he tried to revive her does not, of itself, negative an inference of an intention to kill a short time earlier. However, the attempt to revive is not consistent with such an intention.

7. [21]

   There being no direct evidence of an intention to kill, it is necessary to employ circumstantial reasoning. The Crown says the actions of the offender give rise to an inference - and “are eloquent of” - an intention to kill. I note the caution that must be exercised in drawing an inference from such evidence particularly when the offender is drunk: see, for example, R v Bellchambers [2008] NSWCCA 235 at [36]-[37] per Allsop J.

8. [22]

   It is necessary for the prosecution to exclude the possibility that the intention of the offender was to inflict grievous bodily harm. My conclusion is that the evidence does not exclude that possibility. The injuries and actions of the accused are equally eloquent of an intention to inflict serious injury.

9. [23]

   Accordingly, the offender will be sentenced on the basis that he intended to inflict grievous bodily harm upon Cheree but not that he intended to cause her death.

10. [24]

    There is ample authority that murders involving an intention to kill are generally more serious than those involving an intention to inflict grievous bodily harm, although that proposition is not universally true. It all depends on the facts and circumstances of the case. See, for example, R v Hearne [2001] NSWCCA 37; 124 A Crim R 451

11. [25]

    at [34], Apps v The Queen [2006] NSWCCA 290 at [49] (Simpson J) and Versluys v R [2014] NSWCCA 98 at [21].

Loss of self-control

1. [26]

   Mr Wilson SC submitted that the accused lost self-control and that this offence was committed in the heat of the moment as a result of some disagreement between the victim and the offender. The agreed facts suggest that both parties were affected by alcohol and that the offender was motivated by jealousy and that he was suspicious of Ms Lawson’s relationship with her former partner, who was the father of her 3 children.

2. [27]

   While I accept that the offender was out of control and in a rage at the time he killed Ms Lawson, I do not accept that this was in any sense a momentary loss of control as is sometimes seen in other cases.

3. [28]

   I do not accept that the fact that the accused was in a violent rage, most likely brought on by a combination of alcohol and jealousy, mitigates the objective criminality of the offence. On the contrary. This was a sustained assault that occurred over a period of around, or at least, half an hour. In the course of the assault, the victim asked the offender to “stop hitting me” and the offender’s mother tried to intervene. She was told to shut up or she’d be next.

Assessment of objective seriousness

1. [29]

   As I have said, the parties disagree as to the proper categorisation of the objective seriousness of the offence. The Crown submits that the offence falls “slightly above the mid-range of objective seriousness”. Mr Wilson SC submits that the offence falls below the mid-range of objective seriousness.

2. [30]

   These submissions are made in the context of a statutory standard non-parole period of 20 years. That period of 20 years applies to a case where the offence falls within the putative mid-range of objective seriousness and after trial where there is no discount for a plea of guilty. Obviously that is not this case because the offender will receive a reduction for his plea of guilty.

3. [31]

   It remains important for a sentencing judge to make a reasoned assessment of the objective criminality involved in the case. Whether it is necessary or useful to do so in terms of labels such as “mid-range”, “low-range” and “high-range” is questionable but, in deference to the submissions of two experienced counsel, I propose to adopt such language.

4. [32]

   It is certainly not the case that the fact that a particular offence of murder does not involve an intention to kill means that it will necessarily fall below the middle range of objective seriousness: see, for example, Versluys v R [2008] NSWCCA 76 at [32].

5. [33]

   Factors bearing upon the assessment of the objective criminality here are the sustained and brutal nature of the attack and the fact that it was part of an ongoing abusive domestic relationship. The attack was on a defenceless victim who was well affected by alcohol. It was in the context of a domestic relationship marked by violence.

6. [34]

   Further, the victim was in the home of the offender’s mother, a place where she was entitled to feel safe. It is conceded by senior counsel that this is an aggravating feature pursuant to the provision in s 21A(2)(eb). In light of that concession it is unnecessary to dwell on the conflict (or nuanced controversy) in the authorities on that subject: contrast for example the approach in R v Comert [2004] NSWCCA 125 with Melbom v R [2013] NSWCCA 210 and Montero v R [2013] NSWCCA 214; and see the analysis by Bellew J in R v Kennedy [2013] NSWSC 1940 at [44]-[50].

7. [35]

   All of the matters to which I have made reference are matters demonstrating that this was an offence of real objective seriousness.

8. [36]

   On the other hand, it is properly conceded by the Crown that the offence was not premeditated. It was not part of a planned or organised criminal activity and did not involve the use of a weapon. Further, as I have found, the offence did not involve an intention to kill and there was an attempt by the offender to revive the victim.

9. [37]

   While the absence of planning and premeditation is a mitigating feature, its significance is somewhat reduced in circumstances where the offender had assaulted the deceased in the weeks leading up to the murder and had made threats towards her: see Versluys v R [2014] NSWCCA 98 at [20].

10. [38]

    There was some controversy over the question of whether the offender was, or was not, on conditional liberty at the time of the offence: see exhibit B. Initially, the Crown accepted that the offender was not on conditional liberty. After Mr Wilson had concluded his oral submissions, the Crown tendered exhibit B setting out the events that followed the incident that occurred on 18 November 2012. The offender was on bail until 6 February 2013 on which date neither he nor the deceased attended Court. As I understand it, the prosecution then obtained the Victorian equivalent of an apprehended violence order and the offender’s bail came to an end. At the date of the current offence (12 March 2013) the order had not been served on the offender. Accordingly, the Crown concedes that “technically” the offender was not on conditional liberty at the time. For this reason, the aggravating feature in s 21A(2)(j) does not apply but both counsel agree that the true relevance of this material is the fact that it establishes a history of domestic violence. This, along with the offence on the Form 1, results in greater weight being afforded to personal deterrence and to retribution.

11. [39]

    Contrary to the submission of Mr Wilson SC, in assessing the objective gravity of the offence, I have not taken into account a body of evidence concerning the offender’s early exposure to alcohol induced domestic violence and the extent to which that impacts upon his moral culpability. I accept that there is some conflict of authority as to this matter (as to which see, for example, Yang v R [2012] NSWCCA 49, Badans v R [2012] NSWCCA 97, Williams v R [2012] NSWCCA 172; Stewart v R [2012] NSWCCA 183.)

12. [40]

    However, in my view, the High Court made clear in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 that “meaningful content cannot be given to [the concept of objective seriousness] by taking into account characteristics of the offender.” The High Court concluded at [27]:

13. [41]

    I accept that there may be some exceptions to that proposition and that the dividing line between the objective features bearing upon the seriousness of an offence and the subjective features of an offender is not always a clear and bright one. However, in my view, the exposure of this offender to alcohol and violence at a young age cannot properly be categorized as a matter bearing upon a principled assessment of the objective seriousness of his offence. On the other hand, if that evidence is accepted, it may bear upon his moral culpability and a determination of the appropriate sentence to be imposed.

14. [42]

    As I said in argument, this point is unlikely to make any practical difference to the outcome. If the evidence is accepted, and if I determine that the offender’s moral culpability is reduced as a result, that finding will sound in the sentencing outcome however it is pigeon-holed in these remarks. That observation accords with what Price J said in Williams v R [2012] NSWCCA 172 at [43]. It also found favour with both of the experienced counsel who appear in these proceedings.

15. [43]

    Taking into account all relevant matters, in my assessment, the offence falls within the mid-range of objective seriousness.

16. [44]

    For the sake of transparency, I record that if I am wrong in my approach to the offender’s early exposure to alcohol and violence, I would have accepted Mr Wilson’s submission that the offence falls below the mid-range although not by very much.

The suffering of Cheree’s family and friends

1. [45]

   I have received moving statements from the victim’s mother (Raylene Lawson) and her sister (Janice Rose). These were read to the Court by Ms Quayle and Ms Taylor. Once again, I say thank you to the authors of those statements for sharing your pain and your grief and to the brave women who read them to the Court.

2. [46]

   Cheree was greatly loved in the community and this is shown by the large number of people who have travelled the 300 km from Dareton and Mildura to keep vigil at this sentencing hearing.

3. [47]

   Cheree was one of nine children and she was very close to her sisters. If her life was not cut short by the violent actions of the offender, she would now be just 26 years old.

4. [48]

   She was “charming, beautiful, intelligent and loving”. She was honest. She was a loving, and much loved, aunty.

5. [49]

   She also had three children of her own (T, J and J). These children are all still less than 10 years old. Her mother, Raylene, has now undertaken their care and she cannot express her relentless and constant grief because she does not want to upset the three little ones.

6. [50]

   Both Raylene and Janice feel hopeless and helpless in the face of their loss. Neither can see a day when they will not think of Cheree; miss her; mourn for her.

7. [51]

   Many other people in the court-room have no doubt felt this loss, this helplessness. The court room is full of a great sadness and anger.

8. [52]

   This is the impact of this senseless, brutal killing on the immediate family and friends of poor Cheree.

9. [53]

   To Raylene and to Janice and to all of you gathered here to seek justice for Cheree:

10. [54]

    The law now allows the suffering of a victim’s family and friends to be taken into account if it amounts to what the law describes as “an aspect of the harm done to the community”. I have discussed this new law in sentencing the man of Hines last year in this Court: see Hines (No. 3) [2014] NSWSC 1273 at [77]-[85]. There is no need further to discuss the subtleties of that law today. It would not do Cheree’s family any good.

11. [55]

    I accept that the impact on Cheree’s family is an aspect of harm done to the community. As Howie J said in Barbetta [2008] NSWSC 688 at [18], as I inferred last year in Hines (at [84]) and as McCallum J said in Halloun [2014] NSWSC 1705, this is probably true in all cases of homicide.

12. [56]

    On the prosecutor’s application and on the concession by the offender, I will take the statements of Janice Rose and Raylene Lawson into account “in connection with the determination of the punishment for the offence” under s 28(4) of the Crimes (Sentencing Procedure) Act (1999) NSW. In doing so, I adopt the sound and sensitive approach articulated by McCallum J in Halloun at [45]-[46] noting that this approach serves the purposes of sentencing in s 3A of the Act.

Deterrence and domestic violence

1. [57]

   Cases of domestic violence are too frequent in the community. It is a matter of some notoriety that domestic violence is prevalent within Aboriginal communities. I cannot speak more eloquently of this than did Cheree herself. Her mother told me this:

2. [58]

   The evidence shows that the killing of Cheree was the last of three serious assaults committed by this offender upon her.

3. [59]

   On 18 November 2012 the offender assaulted the victim in a most serious way. Her statement to the police on 18 November 2012 described that assault as follows:

4. [60]

   Then, on 16 February 2013, the offender committed the offence on the Form 1. The facts of that offence (set out in paragraph 6 and following of the statement of facts) included striking Cheree with a brick causing her to black out. This caused the injuries to her depicted in the photographs which are document 8 of exhibit A.

5. [61]

   The sentence that I impose must reflect the need to send a message to people within the Aboriginal and wider community that our society cannot, and will not, tolerate domestic violence. When death is the result, the courts must impose lengthy gaol sentences on offenders. As the Crown has submitted, it is not enough to pay lip service to the principle of general deterrence. That principle must be reflected in the sentence that is actually imposed.

6. [62]

   Further, this offender has a history of domestic violence both against Cheree and also against an earlier domestic partner. For this reason, the sentence must also send a clear message to him that his behaviour will not be tolerated by society in general and by the Aboriginal community of Dareton and Mildura. I accept the Crown’s submission that the matter on the Form 1 and the offender’s history of domestic violence mean that significant weight must be given to the principle of personal or specific deterrence.

The offender’s personal circumstances and other mitigating features

1. [63]

   The offender is an Aboriginal man. He was 25 years old when he committed the offence and is now 27.

2. [64]

   He has a criminal record which disentitles him to the leniency afforded to a first offender but which is not such as to aggravate the offence or to result in a sentence disproportionate to the circumstances of the offence itself: cf Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465; R v Hines (No 3) [2014] NSWSC 1273 at [86]-[97].

3. [65]

   His actions immediately after the offence suggest that he immediately accepted responsibility for his actions and acknowledged the harm that he had done. Those actions included:

4. [66]

   I will take this evidence of remorse into account under s 21A(3)(i) but note that, in the context of this case and in circumstances where his prospects of rehabilitation are speculative, it is not a matter of significant weight compared with other relevant factors and purposes of sentencing.

5. [67]

   I accept the submissions of both counsel that the offender’s prospects of rehabilitation are not known. The repeated offences of domestic violence make it impossible to conclude that he has good prospects of rehabilitation or that he is unlikely to offend again (cf s 21A(3)(g) and (h)).

6. [68]

   I have considered two reports, one by a psychologist (Dr Howard) and one by a psychiatrist (Dr Furst). Neither report provides evidence of a significant mental health issue or intellectual disability. Dr Furst says that the offender has a “low intellectual function”. Dr Howard administered various tests which disclosed that he was in the “low average” to “average range” for intelligence but that his verbal skills are very poor and that this impacted upon the results. Both reports make some reference to Mr Johnson’s exposure to domestic violence from an early age. He was exposed to alcohol and drugs at an early age and started using drugs and alcohol in his early adolescence. Neither report makes any attempt to relate those matters to the offences.

Exposure to alcohol and violence

1. [69]

   The most significant aspect of Mr Johnson’s personal history concerns his exposure to violence, alcohol and drugs in his family home when he was a child and as he reached adolescence. I have received affidavits of his mother and his sister and these were not subject to cross-examination or dispute.

2. [70]

   Raylene Carter said, amongst other things:

3. [71]

   Natalie Johnson’s affidavit included:

4. [72]

   As I have said, the reports of Dr Furst and Dr Howard also touch upon this although neither expert had the extensive and graphic history that is now presented. I accept that this is the result of the offender’s poor verbal and communication skills.

5. [73]

   It is well recognized that: "an offender's deprived background may militate the sentence that would otherwise be appropriate": see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 592 [37]. I have previously discussed and applied this case and the case of Munda v Western Australia [2013] HCA 38 249 CLR 600: see R v Booth [2014] NSWCCA 156 at [20]-[27]; R v Hines (No 3) at [61]-[64].

6. [74]

   In Bugmy v The Queen, the joint judgment said (at [43]-[44]):

7. [75]

   Further, in Munda v Western Australia the majority said (at [54]):

8. [76]

   However, the majority went on (at [54]-[55]):

9. [77]

   Applying those principles to the present case, I accept that the offender’s exposure to violence at the hands of his alcoholic father and his exposure to early drug and alcohol abuse in the family home reduces his moral culpability for the present offence. I think the inference is inescapable that his experiences as a child and adolescent have impacted greatly upon him and affected his ability to control himself and explain his resort to violence.

10. [78]

    However, this is of no comfort to the loved ones of Cheree who have travelled many miles to attend Court to ensure, as it was put by her sister, that Cheree gets justice today. Further, it remains an essential part of this sentencing process that members of the offender’s community, as well as society in general, realise that domestic violence cannot and will not be tolerated by the Courts. The sentence that I impose must attempt (insofar as it is possible) to vindicate Cheree Lawson’s human dignity and to denounce the brutal assault that led to her death.

Self-induced intoxication

1. [79]

   In accordance with s 21A(5AA), I make it clear that I have not taken into account as a mitigating feature the self-induced intoxication of the offender at the time of the offence. However, in conformity with the High Court’s judgments in Bugmy and Munda, I have taken into account the fact that the offender’s early exposure to both domestic violence and drug and alcohol abuse reduce his moral culpability and capacity to control his emotions.

The purposes of sentencing and relevant legislative guideposts

1. [80]

   I have taken into account the relevant purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as well as the principles of sentencing established by the common law. I must ensure that the offender is adequately punished and is held accountable for his crime and that the community is protected from the offender. I must denounce his conduct but promote his rehabilitation. I must recognise the harm done to the victim, her family and friends and to the community.

2. [81]

   Murder is the most serious offence known to the criminal law and carries a maximum penalty of life imprisonment. That penalty will be imposed in the most serious of cases and it is not suggested by the prosecution that this is such a case. Nevertheless, in determining the appropriate sentence, “careful attention” to the maximum penalty is required: see Markarian v the Queen [2005] HCA 25; 228 CLR 357 at [30]-[31].

3. [82]

   There is a standard non-parole period of 20 years that applies to cases after trial, that is where there is no plea of guilty. I approach the standard non-parole period in accordance with the High Court’s judgment in Muldrock v The Queen. Along with the maximum penalty, it is an important legislative guide-post. I do not intend to impose the standard non-parole period. In the course of these remarks I have set out the factors that I have taken into account in determining to impose a non-parole period less than 20 years (s 54B(3)). The two matters of most significance in this determination are the offender’s plea of guilty and the reduction of his moral culpability resulting from his early exposure to alcohol, drugs and extreme domestic violence.

4. [83]

   I must synthesise these various factors, some of which pull in different directions, and, instinctively, arrive at a just and proportionate sentence.

Cases and statistics

1. [84]

   Mr Wilson SC has provided me with statistics relating to some 148 cases decided between July 2007 and June 2014. They include only 8 cases where the offender pleaded guilty, was aged 21-25 years and had committed previous offences of the same kind. The statistics show a large variation in sentencing outcomes, a circumstance that accords with the fact that murders are committed in a most diverse range of circumstances. I note that of the 8 cases with those common features, 5 received a non-parole period of 15 years or less. However, the numerical database is so small that I am unable to derive any real guidance from the statistics.

2. [85]

   Mr Wilson SC has also provided me with summaries of a number of cases decided by the Court of Criminal Appeal and other judges of this Court (MFI 4). He has placed some reliance and has carefully and helpfully analysed the cases of R v Kennedy [2013] NSWSC 1940, R v Bolt [2013] NSWSC 895 and R v Edwards [2009] NSWSC 164. I note that in Versluys v R [2014] NSWCCA 98 I considered the sentencing outcome in around 20 cases where there was held to be no intention to kill and no premeditation.

3. [86]

   The correct approach to such material was articulated by the High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 and by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [304] - [305]. In Hili and Jones, it was said at [54]-[55]:

Sentence

1. [87]

   Synthesising all of this evidence and taking into account those principles of sentencing and purposes of punishment, I have come to the conclusion that an appropriate starting point is a total sentence of 26 years.

2. [88]

   Allowing a discount of a little less than 20% for the offender’s plea of guilty, the total sentence will be 21 years. I am not persuaded that there are special circumstances requiring an adjustment to the minimum term and an extended period of parole. Accordingly the non-parole period will be 75% the total sentence, that is a period of 15 years and 9 months.

3. [89]

   Mr Johnson, for the murder of Cheree Anne Lawson and taking into account the offence of assault occasioning actual bodily harm, you are convicted.

4. [90]

   I sentence you to a non-parole period of 15 years and 9 months commencing on 12 March 2013 and expiring on 11 December 2028.

5. [91]

   There will be a balance of term of 5 years and 3 months which will expire on 11 March 2034.

6. [92]

   You will be eligible for release to parole at the expiration of the non-parole period.

7. [93]

   Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I will leave it to Mr Wilson SC to explain to you the relevance and likely impact of that on your post-release life.