Supreme Court New South Wales Medium Neutral Citation: R v Johnson [2022] NSWSC 404 Hearing dates: 18 February 2022 Date of orders: 8 April 2022 Decision date: 08 April 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: The offender is sentenced to a term of imprisonment for 9 years and 6 months with a non-parole period of 6 years and 4 months. Catchwords: CRIMES — sentencing — manslaughter — self‑defence with excessive force — aggravating factors Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: GG v R [2018] NSWCCA 280 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Lai v R [2021] NSWCCA 217 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pitts v R [2014] NSWCCA 244 R v Black (No 2) [2021] NSWSC 77 R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Elfar [2003] NSWCCA 358 R v Fuller [2020] NSWSC 1580. R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 250 R v Johnson [2021] NSWSC 1405 R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 34; (2005) 156 A Crim R 372 R v Previtera (1997) 94 A Crim R 76 R v Smith [2021] NSWSC 928 R v Warren Scott (No 3) [2021] NSWSC 1646 Ryan v The Queen (2000) 206 CLR 267; [2001] HCA 21 Smith v R [2015] NSWCCA 193 Turnbull v R [2019] NSWCCA 97 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Regina (Crown) Shaun Garry Johnson (Offender) Representation: Counsel: N Adams SC (Crown) C Watson (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Ramsland Laidler Solicitors (Offender) File Number(s): 2019/405914 Publication restriction: Nil Judgment 1. On 26 December 2019, Shaun Garry Johnson (the offender) killed Steven Michael O'Brien (Mr O'Brien) whilst the offender was at Mr O'Brien's home. 2. He did so by lacerating Mr O'Brien in the neck with a sharp implement that he used as a weapon. 3. The offender was charged with the murder of Mr O'Brien contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). He stood trial during the period commencing 19 October 2021 before me, sitting as a Judge alone. 4. On 4 November 2021 I found that the offender was not guilty of murder but guilty of manslaughter. 5. As set out in my judgment dated 4 November 2021, [1] the offender admitted that he killed Mr O'Brien but maintained that he did so in self-defence, albeit, that he acted with excessive force in doing so. 6. The trial was conducted on the basis that he did kill Mr O'Brien and that, if self-defence was not available, then he would be guilty of murder. [2] 7. In circumstances in which an accused person raises self-defence, the onus is on the Crown to prove beyond a reasonable doubt that the accused did not believe that his conduct was necessary to defend himself. I had a reasonable doubt as to whether the offender did not act in self-defence. The question which I was required to ask myself was whether there was a reasonable possibility that the offender believed that his conduct was necessary in order to defend himself. I accepted that there remained such a reasonable possibility. [3] 8. In the circumstances, the Crown did not prove beyond a reasonable doubt that the offender did not act in self-defence. As such, the offender could not be guilty of murder and I convicted him of manslaughter because even the offender accepted that his conduct was not a reasonable response to the circumstances as he must have perceived them. He used unreasonable force. 9. The offender thus stands to be sentenced for manslaughter on the basis of self-defence with excessive force. 10. The maximum penalty for the offence of manslaughter is imprisonment for 25 years and there is no standard non-parole period. 11. The Crown material on sentence includes the offender's criminal history, both in New South Wales and the Northern Territory, and his custodial history. A number of victim impact statements were provided and delivered on the sentencing hearing. 12. The offender tendered: 1. A report of Dr Kim Dilati, a Consultant Clinical and Forensic Psychologist, dated 16 February 2022; 2. His own letter to the Court dated 16 February 2022; and 3. A number of testimonials or character references. 1. The offender did not give evidence on the sentencing hearing. 2. The psychologist was not required for cross-examination and no oral evidence was adduced from her. 3. The parties provided helpful written submissions and some cases which may or may not be comparable. Mr O'Brien's life 1. I do not know much about Mr O'Brien's life except that which emerged through the evidence at trial and through the victim impact statements. 2. He was 50 at the time of death. He remained in close contact with and in a close relationship with his mother, Beverley O'Brien (Mrs O'Brien), and stepfather, Gordon O'Brien. 3. He moved to Newcastle in about 2006 and purchased the house at Mayfield in about 2011. It is apparent from the evidence I have received that he was, in particular, a loving and caring father who offered considerable support to his children. He had three children from two prior relationships and two children with his then current partner, Ms Stewart. 4. The circumstances of his death are, of course, tragic. Nothing he did or said could be any sort of justification for his killing. Family Impact Statements 1. Statements were delivered in Court by: 1. Beverley O'Brien – Mr O'Brien's mother; 2. Ashley Bauss – Mr O'Brien's oldest child; 3. Tracey Stewart – Mr O'Brien's partner's mother; and 4. Casey Lee Turvey – Mr O'Brien's second biological daughter. 1. Further statements (being of David O'Brien and John Thornton) were admitted without objection. I read those statements. 2. It took a great deal of courage for each of those persons to deliver their statements in Court. 3. Mr O'Brien's death has left a lasting impact on his family. He was plainly a much loved son, father and family member. His mother's life is now filled with much sadness. She feels her life has changed forever. She misses him every day. 4. His children have been significantly impacted by his death, in particular, Ashley and Casey. Ashley is suffering from significant health issues which I acknowledge but will not detail in this judgment. It took all her strength to attend Court and speak. The impact on her has been overwhelming. 5. Further, it is clear that he was a good father to his children and Casey's statement emphasises all those things that he had done for her and other family members over the years, as well as the significant impact that it has had on her. 6. It is not the function of this sentencing judgment to recite everything that was said in these family impact statements. I listened to their delivery carefully and have read them. 7. I have regard to them in accordance with the law as an aspect of the harm done to the community but I am mindful of the limitations on the use of such statements in the sentencing exercise. [4] Circumstances of offending 1. I have already delivered a judgment which sets out my findings as to the circumstances of the offending. Yet, having regard to the terms of my judgment, there remains some matters on which the parties take different positions. This is no doubt because I remain uncertain as to precisely what occurred in the moments and minutes before the death of Mr O'Brien. 2. I was unable to make any positive finding as to precisely what occurred in part because Mr Gee (the other person who was present at the time that Mr O'Brien was struck) was not a credible or reliable witness and further that, at least in his interview with the Police, some of what the offender said could also not have been true. 3. Having said that, the background to the killing of Mr O'Brien is not really in dispute. 4. During Boxing Day, there were a number of people in or around Mr O'Brien's house in Mayfield. Whilst it is not clear how the offender came to be at his house, he had been there for a number of hours prior to Mr O'Brien's death. 5. Also present during the day were members of Mr O'Brien's family, including Mrs O'Brien and Gordon O'Brien, who had parked their motorhome on the grass verge directly outside the gate to Mr O'Brien's home. 6. Mr Gee was also present at the premises for a number of hours prior to Mr O'Brien's death. 7. The offender was in a relationship with Karmon Gilroy. Ms Gilroy had been in an earlier relationship with a person known as Glen (alternatively spelled as "Glenn") Cooper with whom she had two children. The offender and Ms Gilroy had a child only a month earlier. 8. During the course of the late afternoon and evening, Mr O'Brien, the offender and Mr Gee had been sitting in and around the back shed of the home consuming alcohol. By the time of the incident, at least Mr Gee and the offender must have consumed a considerable quantity of alcohol. 9. Around 10pm, Mrs O'Brien and Gordon O'Brien retired to their motorhome. At some stage thereafter, the offender left the premises and went to his car with the intention of leaving. His car would not start. He was heard to have said, "Oh, I'm not going anywhere, car's not going to start … Looks like I'm staying." 10. He then went back into the premises and specifically the shed, where only Mr O'Brien and Mr Gee were present. Mr O'Brien had come out onto the grass verge at the time when the offender was trying to start his car. They both went back inside. There is no evidence of any animosity or problem emerging between the offender and Mr O'Brien prior to that time. 11. The events which led to the death of Mr O'Brien occurred approximately 15 minutes later. There is no evidence of anything that occurred up to that time which might have caused the offender to do what he did. The evidence is to the effect that the persons sitting around in the shed were heard laughing and joking and generally having a good time. 12. There is no evidence of anything said by the offender when he went back inside after his car failed to start which might suggest that he was intending to engage in any sort of altercation with or hurt Mr O'Brien. I thus did not accept the Crown case that the offender had gone to the premises on that day to forment conflict with Mr O'Brien. Similarly, I do not accept that the offender went back inside after his car would not start with the intention of doing harm to Mr O'Brien. 13. It emerged during the evidence that Ms Gilroy's ex-partner had been in the same prison at the same time as Mr Gee and had asked Mr Gee to bash the offender. Mr Gee admitted that he had been so asked but gave evidence to the effect that he took no notice of that. 14. The Crown submits that there is no evidence that the offender even knew about Mr Cooper's request prior to Mr O'Brien's death. After the event, [5] Mr Gee was wandering around in an intoxicated state threatening the offender that either he would kill him or that someone else would do so in prison referring to a person called "Cooper". Mr Gee maintained that it was the offender who raised the topic of being bashed by Mr Cooper rather than Mr Gee threatening the offender. 15. I did not accept that Mr Gee was a reliable witness but that does not allow me to conclude for the purposes of sentencing that Mr Gee had in some way referred to the request by Mr Cooper that the offender be bashed by him prior to the incident. 16. At some point after the offender had gone back inside and during the 15 minute interval between the offender not being able to start his car and the events leading to death occurring, there was a conversation involving the three men about whether Ms Gilroy had been visiting Mr O'Brien the night before or something along those lines. 17. Again, as I said in my judgment, [6] Mr Gee gave evidence of that conversation and it was not suggested to him that it did not occur, improbable as it might have been. At some point following or during that conversation, [7] the offender took hold of an implement and lashed out in a back-hand motion coming into contact with Mr O'Brien's neck. This caused an incised wound involving an injury to the left internal jugular vein and an injury to the left thyroid cartilage. 18. Despite the extent of that injury, Mr O'Brien was able to chase after the offender who had fled onto the street but he ultimately collapsed and died on the grass verge near his mother's motorhome and adjacent to the fence of his property. He died in the presence of his mother and stepfather. As I observed in the judgment, [8] they did everything possible to try and save Mr O'Brien's life. 19. In terms of what occurred in the moments before Mr O'Brien was struck, I raised three possibilities in my judgment [9] as follows: "In my view there are really 3 possibilities as to the events which occurred in the shed that night. The Crown case is that the accused went to the premises with a knife in his back pocket intending to engage in a conflict with Mr O'Brien. He suggested to Mr O'Brien that he had been with his partner and reacted when Mr O'Brien said he had better standards, simply lashing out at Mr O'Brien with the knife when Mr O'Brien was doing nothing more than standing there, perhaps pouring a drink. I don't accept the Crown case. The second possibility is that the incident simply happened in the spur of the moment when the accused reacted to the heated argument with Mr O'Brien by pulling some sort of a weapon from his back pocket or even grabbing something from the table and again lashing out at Mr O'Brien in a backhand motion, striking him in the neck. This possibility does not involve any aspect of self-defence on the part of the accused. The third possibility is that the accused believed it was necessary to defend himself. He either grabbed his swiss army knife from his pocket or took a hold of something that may have been on the table. There was some sort of physical altercation with Mr O'Brien grabbing his shirt as he stood over him (which is what Mr Gee said happened in his statement of November 2020) and Mr Gee, using his words, "diving" at the accused. The accused lashed out recklessly such that his conduct was not a reasonable response to the circumstances as he perceived them but even so, he did perceive that he needed to defend himself." 1. For the purposes of sentencing, the offender urges me to make a finding consistent with the third possibility. 2. In my view, the offender having been convicted of manslaughter and not murder, it is the only possible finding that can be made for the purposes of sentencing. 3. I rejected the Crown case that the offender had gone to the premises with a knife in his back pocket, intending to engage in a conflict with Mr O'Brien. 4. The second possibility, being that the offender reacted to a heated argument with Mr O'Brien by pulling a weapon from his back does not involve any aspect of self-defence on the part of the offender and I am not sentencing on that basis. 5. I am sentencing on the basis that the offender believed it was necessary to defend himself. He either grabbed some type of knife from his pocket or took a hold of something that may have been on the table. There was a physical altercation with Mr O'Brien grabbing his shirt as he stood over him with Mr Gee in some way diving at the offender. The offender lashed out striking Mr O'Brien in the neck. 6. I am unable to determine the nature of the weapon or implement that was used to injure Mr O'Brien. For reasons set out in the judgment, I do not accept that the Crown established beyond a reasonable doubt that the knife found down at the creek was the weapon and that the offender had brought that knife into Mr O'Brien's home. As I must not make any findings adverse to the offender unless I am satisfied beyond a reasonable doubt, I make no finding that the offender brought a weapon to the home that day for the purposes of inflicting harm on Mr O'Brien. I am unable to determine whether the weapon was a knife or some other implement which might have been on the table in the shed at the time. 7. For the purposes of this sentence, I accept that the offender believed that it was necessary to defend himself. Whilst I am unable to make any positive finding as to precisely what occurred, the offender was being confronted by two men, at least acting in an aggressive manner towards him, with Mr O'Brien taking hold of his shirt and Mr Gee diving on him (although I am uncertain as to the precise level of any physical contact). 8. The offender grabbed a sharp implement and lashed out at Mr O'Brien. He caused an extensive laceration to his neck which led to Mr O'Brien's death. At the time, neither Mr O'Brien nor Mr Gee were armed. Further, there is no evidence of any direct and specific oral threat by either Mr Gee or Mr O'Brien to the effect that they were going to cause physical harm to the offender. 9. By grabbing and using the sharp implement in the way in which he did, the offender turned what might have been a scuffle or an altercation into an event which led to the death of Mr O'Brien. 10. Whatever level of threat the offender perceived, his response in using the sharp implement as a weapon was excessive. 11. The Crown submits that the facts disclose a seriously excessive response to any threat capable of being perceived by the offender. The Crown submits that the conduct of the offender discloses a grossly disproportionate response which places this offending above the middle range of seriousness. 12. The offender submits that there was some type of assault upon him sufficient for him to react in the way he did, although he reacted illegally. He submits that I should have regard to what may have been Mr Gee's intentions concerning his agreement with Mr Cooper in respect of bashing the offender. This is said to give some support to the idea that Mr Gee may have been intending to assault the offender at the time. 13. I do not consider that the evidence can be taken that far. The evidence does not establish that the offender had in his mind that Mr Gee was going to be bashing him or might have intended to bash him that evening. 14. In the end, for the purposes of sentencing, the following findings are particularly relevant to the assessment of objective seriousness: 1. The offender killed Mr O'Brien when he deliberately lashed out at him with a sharp weapon or implement, slashing his neck in a back-hand motion. 2. The blow to the neck was not inflicted by any form of forward stabbing motion. Further, having regard to the evidence of the forensic pathologist, Dr Hannah Elstub, the evidence does not support there being more than one contact or motion by the offender. 3. The action of the offender was a reaction to his perception that he needed to defend himself, rather than a reflection of any planned or pre-meditated attack on Mr O'Brien. 4. At least until the minutes prior to the incident the offender, Mr O'Brien and Mr Gee had been seemingly enjoying each other's company in the back shed of Mr O'Brien's home. 5. The response of the offender to his perception was excessive. His response, that is, lashing out at Mr O'Brien with a sharp implement was excessive and significantly so. 6. I am not satisfied that the offender intended to kill Mr O'Brien. He lashed out intending to inflict grievous bodily harm upon him and this resulted in his death. 7. He used a weapon in response to a perceived threat from unarmed men. 8. The incident occurred in Mr O'Brien's home at a time and place when and where the offender was being afforded Mr O'Brien's hospitality. 1. As identified by the Crown there are a number of aggravating features, including: 1. The use of a weapon (Sentencing Procedure Act, s 21A(2)(c)); 2. The offence was committed in Mr O'Brien's home (Sentencing Procedure Act, s 21A(2)(eb)); and 3. The offence was committed whilst the offender was on conditional liberty (Sentencing Procedure Act, s 21A(2)(j)). 1. The offender was convicted of resisting a Police Officer in the execution of duty and placed on a Community Corrections order for 12 months commencing 30 January 2019. That order was conditional upon the offender being supervised by Community Corrections which included the offender undergoing treatment for drug and alcohol issues and for anger management. The fact that the offending occurred whilst the offender was on conditional liberty is a factor relevant to the offender's personal circumstances rather than objective seriousness. [10] Seriousness of the offending 1. The crime of manslaughter involves the felonious taking of human life, which is regarded by the law as a most serious crime. [11] 2. However, it has also been emphasised that the circumstances giving rise to a conviction for manslaughter and degrees of culpability are so varied that no established sentencing tariff can be applied. 3. The seriousness of the offending is determined with reference to the facts of the killing and not the class of manslaughter. [12] 4. The assessment of the objective seriousness of the offending is part of the discretionary process of determining where the sentence for this offender might fit within the range of sentences that might be imposed. The assessment of objective seriousness is not a reflection of the impact that the death of Mr O'Brien might have had on others or intended to in any way minimise the feelings of grief or loss experienced by members of his family. 5. Each case depends on its own facts and circumstances. Objective seriousness must be assessed without reference to matters personal to the offender or the particular class of offender and only with reference to the nature of the offending. [13] As identified in R v Hoerler, [14] when sentencing for the offence of manslaughter the Court must have regard to the full context in which the death occurred. That necessarily includes a consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender and what the intention of the offender was. 6. As the offender is being sentenced on the basis that he believed that his conduct was necessary to defend himself but that his conduct was not a reasonable response in the circumstances as he perceived them, it is necessary to make findings as to the circumstances as the offender perceived them at the relevant time and then determine the degree to which his conduct departed from what would have been a reasonable response to those perceived circumstances. [15] I have done that. 7. I reject the offender's submission that the offending is in the low range of objective seriousness for this type of offence. 8. In my view, the objective seriousness of the offending is higher than low range and in the middle but not above the middle range. 9. I observe also that although the offender relies on a psychologist report for the purposes of sentencing, the offender does not suggest that he was suffering from any psychological condition or cognitive deficit which in any way caused him to act in the way that he did. There is no suggestion that his moral culpability should be reduced based on some psychological condition which was relevant to the offending. Subjective circumstances The offender's background 1. The offender is currently 38 years of age. He did not give evidence on the sentencing hearing and any information about his background comes primarily from the history provided to Dr Dilati. 2. Immediately prior to the offending the offender was in a relationship with Karmon Gilroy with whom he had a child only one month earlier. Prior to that he had been in a 10 year relationship with another woman and had four children. At least according to the history provided to Dr Dilati, he had assumed primary responsibility for the care of those children. 3. The offender was himself an only child. His father died young and his mother commenced a new relationship. After a period, he then continued to reside with his stepfather. 4. He may have suffered from dyslexia and had learning difficulties at school. He left school early and obtained some employment. His employment history has been spasmodic. He appears to have worked in various industries. He has an interest in servicing heavy trucks. 5. He was exposed to some domestic violence in his childhood in the sense that he informed Dr Dilati that his stepfather became violent and damaged property. However, there is no history of any violence being directed towards him or his mother. 6. He believes that his stepfather may have suffered from some mental health problems. He appears to have moved around from city to city and state to state with his family. His childhood was thus unsettled. 7. There is limited evidence of the offender suffering from any mental health issues himself. He may have been prescribed treatment for depression in custody. He believes that one of his sisters was diagnosed with autism spectrum disorder and another with bipolar effective disorder but it is not suggested that he suffered from any regular or significant mental health problems. 8. He did have physical problems arising from a fall from a horse when he was 23. He broke his neck. Further, he had suffered numerous accidents as a result of skateboarding and riding a motorbike, all of which have led to chronic pain. 9. It is not submitted on behalf of the offender that he suffered from any psychological condition which may have contributed to the offending. 10. Further, it is not suggested that he suffered from any childhood abuse or trauma which impacted upon him in such a way that he would be entitled to any particular leniency in sentencing. Criminal History 1. The offender has a criminal history in New South Wales. His criminal history is limited and is spread over many years going back to 2003. There is no evidence of offending of the type of violence which occurred in this matter. 2. In 2006 he was convicted of offences of carrying a weapon and possessing a prohibited weapon as well as behaving in an offensive manner. 3. In 2019 he was sentenced to a Community Corrections order for 12 months for the offence of resist officer in execution of duty. 4. He also had driving offences including a middle range PCA. 5. He was convicted of a number of offences in the Northern Territory during the period 2015 to 2020 including resisting Police, disorderly behaviour, possessing a dangerous drug, unlawfully damage property and driving with a prohibited drug. 6. The Crown did not submit that his criminal history was such that it should be considered an aggravating feature, although it was submitted that the fact that he was on conditional liberty at the time was an aggravating factor. I have regard to that as part of my assessment of the offender's personal circumstances. The report of the psychologist 1. The offender relies on the report of Dr Kim Dilati dated 16 February 2022. Dr Dilati obtained an extensive history from the offender, including the history to which I have already referred. 2. In terms of drug and alcohol use, the offender has no history of chronic drug use but admitted that he had been drinking alcohol since the age of 15 or 16. He told Dr Dilati that he ceased alcohol use when he commenced a relationship with Jasmine (who must be his first partner). He denied any recent use of illicit substances prior to custody. 3. Whether or not he ceased alcohol abuse some time earlier, he was plainly intoxicated at the time of this offending, which provides no excuse but that fact raises a doubt as to the history provided to Dr Dilati. 4. The offender does not suggest that he was suffering from any psychological illness at the time of the offending which in any way contributed to the offending. 5. Further, it is difficult to discern from Dr Dilati's report the extent of any psychological problems for which he may have suffered throughout his life. 6. The offender only reported a mild history of depression and stress in relation to the wellbeing of his children. He had never taken any medication for mental health difficulties in the past and denied any in-patient admissions. He denied any history of severe mental health difficulties including suicidal ideation or urges, anxiety, psychosis or delusional behaviour. Dr Dilati's examination and testing did not suggest that he met the criteria for psychopathy. 7. I accept that he has suffered from some stress and periods of depression throughout his life but not to a level of any great significance. In my view, Dr Dilati's report is of limited use in the sentencing process in this regard. 8. In her report, Dr Dilati set out the circumstances leading to the alleged offending conduct. On the sentencing hearing, the offender said he was not relying on those paragraphs but the Crown relied on one paragraph in which Dr Dilati recorded that the offender believed there was an ulterior motive by Mr O'Brien who invited the offender to his home with men who knew Karmon Gilroy's ex-partner (being Mr Cooper). 9. The Crown submits that the offender's statement to this effect to Dr Dilati is an example of him continuing to blame other persons rather than demonstrating remorse for his own conduct. 10. Further, Dr Dilati referred to limitations in her psychological assessment, including the lack of collateral information which may have provided a more comprehensive assessment of the offender's functioning. 11. She recommended a comprehensive neuropsychological assessment to determine if he suffers from pre-existing cognitive difficulties and memory impairment which she says may have negatively affected his misinterpretation of a threat and subsequent aggressive reactivity at the time of the alleged offending behaviour. 12. She also referred to him being convinced that he was drugged by Mr O'Brien and his associates. This was not referred to on the sentencing hearing. I am uncertain of the basis of such a suggestion. 13. More significantly, Dr Dilati noted that treatment had not been sought for the issues which she says have come to light but he said he would be willing to engage in long term therapy. She described the risk of recidivism as moderate to high based on historical risk factors. 14. In the end, it does not seem to me that the report of Dr Dilati is of much assistance in the exercise of the sentencing discretion. I am not in saying this rejecting the comments, observations and opinions in the report but it is plain that the import of the report relates more to issues of remorse, rehabilitation and the need for treatment rather than providing an explanation for what occurred as being related to adversity in his life or mental health issues. 15. In particular the offender relied on paragraph 75 of the report suggesting that his comments, that is, that he didn't know how he could forgive himself demonstrated a degree of remorse. Character references 1. The offender also relied on a number of character references as evidence of good character in accordance with s 21A(3)(f) of the Sentencing Procedure Act. They tend to suggest that the offender is a person who has been devoted to his children and has been a caring person. The referees consider him to generally be an honest and decent person. He used to do voluntary work. They referred to him being destroyed by what has happened. 2. His mother, Wendy Johnson, says that he has shown great remorse for his friend's death. She described his conduct as out of character. She referred to the difficult medical condition from which his very young daughter is suffering and the fact that his other daughter had been in a car accident and suffered severe injuries. 3. Character references suggesting an otherwise good character are relevant to the sentencing process [16] but, in my view, the weight which they can be given in this matter is limited. I am not mandated to give a discount in the sentencing because other persons speak highly of the offender. Questions of prior good character must be assessed along with evidence of a criminal history. A criminal history such as the offender's might not be an aggravating factor in the context of an offence of violence such as this but perceptions of friends and relatives as to an offender's good character must be viewed in the context of that criminal history. I do not give the character references much weight in the context of this matter, although I have regard to them. 4. The fact that he has strong family connections may go to his prospects of rehabilitation. Prospects of rehabilitation 1. It is difficult to determine the offender's prospects of rehabilitation. Again, this is a subject matter referred to by Dr Dilati but more in the context of the treatment he could have but has not had. 2. Dr Dilati says that the offender is amenable to treatment and will require long term therapy including psychotropic medication, parenting skills and cognitive function and assessment. He will require weekly assessments with a forensic psychologist to increase his insight into his mental health and treat his offending behaviours. He would also require alcohol support. 3. I accept that he does have some prospects of rehabilitation, although I would describe them as guarded rather than good. This must necessarily depend on any treatment he might receive. 4. The offender submits that he should be entitled to an extended period on parole so that he may obtain treatment and assistance whilst moving back into the community. 5. Having regard to the information contained in the report of Dr Dilati, I accept that he needs a greater than normal period on parole. I also accept that his time in custody has been affected by Covid-19 factors and I have regard to that in assessing his lack of treatment to date. 6. I thus accept that there are special circumstances justifying an extended period on parole, although I am not satisfied that this is a matter in which there should be a significantly greater period on parole than the normal statutory ratio. Remorse 1. There are a number of sources from which the offender submits I could find that he has shown remorse being: 1. Firstly, the offender submits that I would have regard to the fact that immediately following his conduct, he returned to the scene saying he was sorry whilst Mr O'Brien lay on the ground being attended to by his mother and stepfather. 2. Dr Dilati reports that the offender expressed remorse in that he stated that his actions were horrific and that he didn't know how he could forgive himself. 3. In her character reference, the offender's mother refers to the offender being remorseful. 4. Finally, the offender provided a handwritten letter to the Court. He plainly expressed remorse in that handwritten letter, referring to the hurt that he had caused so many people. He referred to his proudest stage as being a Dad and his relationship with his children. He did not want to be a bad influence on anyone. He described himself as usually a community person. He has had time to reflect on the significant impact that his conduct has had on others. He said he will be forever sorry. 1. The Crown submits that that I could not make a positive finding on remorse for the following reasons: 1. The offender's direct expression of remorse needs to be considered in the light of the fact that he had the presence of mind to wash himself, dispose of a weapon and then continue to blame someone else, being a reference to the offender's suggestion in a Police interview that he had not killed Mr O'Brien. 2. The offender's subsequent conduct has not been consistent with him having any genuine remorse despite what he said on the night. 1. Further, the difficulty for the offender is that he did not give evidence on the sentencing hearing. His expression of regret on the night was direct but other than that the evidence of remorse is indirect. 2. In Lai v R, [17] Bellew J observed: Finally, as I have noted, both the applicant and Wu chose to tender, in their respective cases on sentence, a statement to the sentencing judge. Each did so in the absence of giving sworn evidence. In circumstances where such a practice appears to be increasingly adopted in sentence proceedings in the District Court, it is timely to reiterate the observations of Whealy J (as his Honour then was) in R v Elfar: The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports – R v Palu. In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so. Those observations have since been consistently reiterated by this Court. There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged." (citations omitted). 1. In my view, little weight can be given to the offender's expression of remorse in a letter to the Court in circumstances in which he did not give evidence on the sentence hearing and there has been no opportunity to test this. Further, as observed by Whealy J in R v Elfar, [18] statements made to a psychologist are of similar effect. It must follow that the belief of the offender's mother that he was remorseful could also be given little weight. 2. Perhaps there may be circumstances in which a letter from an offender may be given some weight but I would not make a finding of remorse based on statements made by the offender to third persons or even in a letter when he chooses not to give evidence on the sentencing hearing. 3. Whilst I accept that the offender said he was sorry as Mr O'Brien lay dying on the ground, I also accept the Crown's submission that little weight should be given to that expression having regard to his subsequent conduct. In the circumstances, I am unable to be satisfied that the offender has demonstrated genuine remorse. Deterrence 1. In my view, both general and specific deterrence have some role to play. The offender's use of a weapon resulted in the death of Mr O'Brien. The community needs to know that the use of a weapon, particularly in these circumstances, will be viewed dimly by the Court and any custodial sentence should reflect the element of general deterrence. 2. Further, the sentence must reflect a level of specific deterrence. The offender suffers from anger management issues which yet remain untreated. His response to the circumstances as he perceived them was plainly excessive. There must be some element of specific deterrence in the sentence. Discount for guilty plea 1. The parties agree that the offender is entitled to a 5% discount having regard to his offer to plead guilty to manslaughter, having regard to ss 25E(2)(c) and 25D(2)(c) of the Sentencing Procedure Act. Cooperation and running of the case 1. The offender submits that he has cooperated in the running of the case, particularly having regard to the Covid-19 issues. I take this to be a submission that he has facilitated the administration of justice within the meaning of s 22A of the Sentencing Procedure Act. 2. The trial was conducted immediately after the end of lockdown in 2021. However, there still remained Covid-19 issues to deal with. Due to the absence of a sufficient and appropriate testing regime within the prison, the offender agreed to observe the trial by AVL from a room below the Court. He agreed to abide by all Covid-19 restrictions and the consequent limitations in providing instructions to his lawyers. 3. He also refers to the limiting of the issues by way of his offer to plead guilty to manslaughter. The offender submits that he has cooperated with the authorities in the smooth running of the trial, narrowing the issues as far as possible. 4. It is important that there be no double counting. No extra discount or leniency arises because the offender pleaded guilty. 5. Further, although the offender refers to the decision of R v Warren Scott (No 3) [19] and it must be in the interests of the community that trials proceed expeditiously and efficiently, it does not seem to me that cooperating with the efficient running of a trial during Covid-19 times is something that necessarily gives rise to additional leniency on sentence. 6. I have had regard to the difficulties experienced in custody as a result of Covid‑19 but allowing for further leniency based on cooperation in the running of the trial (which must be distinguished from cooperating with authorities generally) is not something to which I consider any particular weight should be given in the sentencing process in this matter. Because the offender could not be tested when being brought to Court each day, he could not sit in Court but viewed the proceedings by AVL from a room elsewhere in the Court. His legal representatives could visit him and speak to him whenever required. It might be said that the trial could not have been completed unless he agreed to that condition but it does not seem to me that that of itself gives rise to some additional leniency in the sentencing process. Other cases 1. I was referred to a number of other cases in which offenders have been sentenced for manslaughter based on self-defence with excessive force. As is well-known, each case is different and other cases are of limited use. [20] 2. In particular, reference was made to R v Smith, [21] Pitts v R [22] and two cases in which I was the sentencing judge being R v Black (No 2) [23] and R v Fuller. [24] 3. These cases do not establish some sort of sentencing tariff. They fall within a broad range but the breadth of that range is necessarily dependent upon the differing facts and circumstances in each case, particularly relating to each offender's subjective circumstances. 4. I have regard to those cases in the limited way permissible. Sentence 1. The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be attempted to offend, retribution and reform. 2. As observed in Veen v The Queen (No 2), [25] those purposes overlap and none can be considered in isolation when determining what an appropriate sentence may be in the process of intuitive synthesis which is the sentencing process. I have regard to the objective seriousness of the offending as well as the offender's subjective circumstances. I consider that a slightly longer period on parole is appropriate, having regard to my finding of special circumstances. I apply a 5% discount to the sentence which I otherwise would have imposed, having regard to ss 25E(2)(c) and 25D(2)(c) of the Sentencing Procedure Act. 3. The sentence I would have imposed but for the discount is 10 years. With a 5% discount that amounts to 9 years and 6 months. 4. Shaun Garry Johnson, for the offence of manslaughter, I impose a sentence of imprisonment consisting of a non-parole period of 6 years and 4 months with a balance of term of 3 years and 2 months. The sentence will date from 26 December 2019. The offender will become eligible for parole when the non‑parole period expires on 25 April 2026. The total sentence expires on 25 June 2029. 5. As the offender is convicted of a "serious offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [26] I ask the offender's solicitor to undertake that task on the Court's behalf. ********** Endnotes 1. R v Johnson [2021] NSWSC 1405 ("Johnson"). 2. Johnson at [10]. 3. Johnson at [175]. 4. Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 30E(3) ("Sentencing Procedure Act"); R v Previtera (1997) 94 A Crim R 76. 5. Johnson at [173]. 6. Johnson at [50]. 7. Johnson at [51]. 8. Johnson at [65]. 9. Johnson at [170]-[172]. 10. Turnbull v R [2019] NSWCCA 97 at [17] (Simpson AJA). 11. R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) at 4 (Gleeson CJ); R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342 at [61]; (2005) 156 A Crim R 372. 12. R v Borkowski [2009] NSWCCA 102 at [49] (Howie J); (2009) 195 A Crim R 1. 13. Muldrock v The Queen (2011) 244 CLR 120 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 39; GG v R [2018] NSWCCA 280 at [60] (Schmidt J). 14. [2004] NSWCCA 184 at [44] (Spigelman CJ, with Hume and Adams JJ agreeing); (2004) 147 A Crim R 250. 15. Smith v R [2015] NSWCCA 193 at [36], [45] (Simpson JA, with Leeming JA and Hamill J agreeing). 16. Ryan v The Queen (2000) 206 CLR 267; [2001] HCA 21 17. [2021] NSWCCA 217 at [79]-[80]. 18. [2003] NSWCCA 358 at [25] (Ipp JA and Davidson AJ agreeing). 19. [2021] NSWSC 1646. 20. see Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [67] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) [2010] HCA 45; Wong v The Queen (2001) 207 CLR 584 at [58] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64. 21. [2021] NSWSC 928. 22. [2014] NSWCCA 244. 23. [2021] NSWSC 77. 24. [2020] NSWSC 1580. 25. (1988) 164 CLR 465 at 476 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14. 26. Crimes (High Risk Offenders) Act, s 25C. 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 April 2022