R v Johnston[2024] QSC 36

Sentencing Remarks 

R v Brian Earl Johnston

The Hon Justice Applegarth

13 March 2024

(draft remarks to be revised against official transcript)   

Brian Earl Johnston, you are to be sentenced for the murder of your wife, Kelly Wilkinson, who was the mother of your three children.  You also are to be sentenced for breach of a Temporary Protection Order. 

In the early hours of 20 April 2021, you went to your wife’s home in breach of that order.  You stabbed her in the neck three times.  She also suffered sharp-force stab wounds to her chest and other defensive wounds.  The stab wound to the left-hand side of her chest was potentially fatal and contributed to her death.  However, the immediate cause of death was the ignition of fuel that you had brought to the scene of your crime.  Kelly Wilkinson was burnt to death by you.  

This horrendous crime occurred when your three young children were in the vicinity.  An eight-year-old and a six-year-old had to recount to police what they saw of the violence that ended their mother’s life.  Your murder was a crime of extreme domestic violence and this is a circumstance of aggravation.

Kelly Wilkinson was estranged from you at the time.  You were living elsewhere.  The murder was not a verbal argument that escalated.  There was planning and premeditation:  turning up at her home with a 20-litre can of petrol, with items in a camouflage bag, dressed in black and with a black mask on your head.  Your eight-year-old son was unable to identify you as the man.  He collected his two sisters and ran to a neighbour’s house where he told them that “someone is hurting mummy”.  That someone was you.  One of your daughters, then aged six years old, saw her mother on fire.

You left the scene of your crime, leaving a trail of blood, a tomahawk axe in the garden bed of a nearby home, and burnt clothing.  Police located you shortly before 7.30 am, lying on your back in a trail of blood.  You had lacerations and burns.  You smelled of petrol and were wet.  This is consistent with your six-year-old daughter saying that you “got in the fire and then got in the pool”.

Police located a knife at the bottom of the backyard swimming pool and another knife, which matched knives in a kitchen knife block, that was located near the deceased.  The bag that you had taken to the scene contained duct tape, zip ties, other items and a white powder that included a sedative.

I turn to the background to these horrific events.

Background

You met Kelly online in December 2011.  She travelled to America to meet you and you married shortly afterwards.  Your two eldest children were born in America.  Kelly returned to Australia in 2017 with her two children.  She did not want you to follow her and did not want to be in a relationship with you.  However, you hoped to reconcile with her and persuaded her brother-in-law and her father to sponsor you to come to Australia.

You turned up in Queensland in July 2017 and for a time the relationship became reconciled.  You moved in together and had a third child.  

In 2021 Kelly’s mother passed away.  Kelly claimed that you were abusive and controlling towards her, something you dispute.  In any case, she told you that she needed “space”.  She told you that she did not want the relationship to continue.  She asked you to leave the family home and you did.  

In March 2021, Kelly made disclosures to her sisters about acts of abuse, which you deny.  The parties agree I am not required to determine whether those allegations of physical, emotional and sexual abuse are true.  

You spoke to police and charges were commenced in relation to her complaint against you on repeated occasions.  Again, I am not asked to determine those allegations.  Their relevance is that you were acutely aware and concerned that she had made those allegations against you.  

On 31 March 2021 a Temporary Protection Order was made in the Southport Magistrates Court.  You were present at the time the order was made without admission.  Ms Wilkinson felt unsafe.  On 18 April 2021 you told a friend, “If something happens to me, please will you be the one to tell everyone that I am a good person”.  That is consistent with a plan to kill yourself and also  consistent with a plan to kill your wife. It is unnecessary for me to find the latter because your deadly intent towards Kelly Wilkinson soon became evident from your actions. 

The offences

On the night before the murder, you were recorded by CCTV cameras making preparations, including holding a bag of white powder, a prybar and duct tape.

That evening you told your mother that your lawyer had told you that you would go to jail on 30 April until the case went to trial.

Just after 3.00 am on the morning of the murder, an associate and you went to a petrol station at Coomera.  He filled his car, and your 20-litre jerry can with petrol.

You went to the vicinity of the family home at Arundel where you directed your associate to park at the end of the cul-de-sac.  You got out of the car, taking your camouflage bag and jerry can with you.

At about 6.30 am neighbours heard dogs barking, the sounds of an argument, a female yelling “please stop”, and the sounds of distressed children’s voices.  You told the children to go to the neighbours.  One neighbour observed you tipping some of the petrol over yourself.  A short time later there was a loud explosion.  

It seems you and your clothing were burnt during that explosion, and you jumped in the pool.

I cannot be sure how precisely you intended to kill your wife, and then yourself.  The mask, the duct tape, the knives, and the petrol tell us that you had a premeditated plan to detain her and to kill her.  You obviously wanted to silence her from being a witness in pending proceedings.  You may have simply wanted to kill her because you had lost control of her and thought she should be your possession.

[ex tempore discussion on whether intent to kill the deceased existed at time the defendant entered the home.   This concludes with a finding that there was such an intent.]

Whatever your deluded and antediluvian beliefs, Kelly Wilkinson was not yours to control.  You ignored her dignity and her autonomy.  You violated her security in breach of a court order for her protection.  You brutally killed her in a sustained attack with knives and burnt her to death.  You did this with your children able to witness this extreme violence.  They will carry that trauma and that knowledge into their adult lives.  They are three of your many victims.

Victim impact statements

The impact on your many victims has been enormous, debilitating, and devastating.  Your victims range from your children to the elderly.  The victims who suffer the most are Ms Wilkinson’s family.  But there are many others who suffer from her loss and the brutal way in which you killed her.  

Publicity around her death and this case makes other victims of domestic violence feel insecure and afraid that the same thing might happen to them. 

Antecedents

Kelly Wilkinson was aged 27 at the time she was murdered.  She had decades of life ahead of her and will not be there for milestones in her children’s lives. You consented to a Temporary Protection Order that will last for 5 years and prevent you from having any contact with them.  That goes in your favour. 

You were born in the United States in 1986 and were age 34 at the time of this offence.  You are now aged 37.  You were raised in Ohio in a religious community.  Your parents separated when you were aged four.  You experienced physical abuse at the hands of your stepfather.  

You left school after completing the equivalent of Grade 12 and joined the US Marines at the age of 18.  You served two tours of duty in Iraq and witnessed suicides and killing.  You were diagnosed with ADHD and depression. 

You have a good employment history, including work as a hydraulics mechanic. You worked after you came to Australia in that field, and by 2021 co-owned a business. 

You suffered severe burns on 20 April 2021, requiring intensive care in hospital, and you will suffer long-term consequences from them.

You have written an expression of remorse which you were prepared to read today so your victims could hear it.  You respected their wishes that you not do so, and so it has been given to the Crown in case your victims wish to learn about its contents at some stage.   

Course of proceedings

You were treated in hospital for self-inflicted injuries and burns.  On 30 April 2021, you were formally charged and declined, as was your right, to participate in a formal interview.  

You were committed to stand trial. An indictment was presented in this Court on 8 April 2022.  There were many pre-trial reviews.  You gave certain instructions late last year.  One was that you did not wish your children to be cross-examined at any trial.  Your new legal representatives sought instructions and gave you advice. Discussions occurred between counsel late last year.  They culminated in confirmation in early February this year that you would plead guilty.  You pleaded guilty to murder on 14 February 2024.  I take account of your plea which has avoided the distress to victims and witnesses of a trial and facilitated the interests of justice.  I take it into account in deciding what your parole eligibility date should be.    

Sentence

There is only one sentence that can be passed:  imprisonment for life.  

On count 1, you are sentenced to life imprisonment.  

On count 2, you are sentenced to a concurrent term of three years, being the maximum penalty. The maximum penalty is warranted because this is the worst kind of breach of a Temporary Protection Order that is possible. 

I declare the period of 1057 days between 21 April 2021 and 12 March 2024 as time served under the sentence.

Convictions for domestic violence offences will be recorded.

Parole eligibility  

As for a parole eligibility date, the law requires you to serve at least 20 years before you can even apply for parole.  It will be for the parole authorities in decades to come to decide if you warrant parole at any stage.  

The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional freedom, “when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence”:  Bugmy v The Queen (1990) 169 CLR 526 at 536.  This and other principles are stated in R v Sica [2013] QCA 247; [2014] 2 Qd R 168 at [135]-[163] and R v Appleton [2017] QCA 290.

The issue in this case is whether 20 years is the minimum period that justice requires in all of the circumstances.

Despite your lack of a prior criminal history, this domestic violence murder is of a gravity that warrants a non-parole period that reflects its premeditation, and the extreme level of violence inflicted by sustained stabbing, followed by burning your wife to death.  An aggravating feature is that it is a domestic violence offence, committed in the presence of vulnerable, young children.

The sentence of life imprisonment serves the goal of deterrence and denunciation.  The period before you become eligible for parole need not be the minimum period. 

Had it not been for two matters pointed to by the Crown in mitigation, I would have extended the period beyond the 20-year minimum to reflect the enormity and brutality of your crime, and the consequences for your many victims of this heinous crime.

The first matter in mitigation is your instructions last year to not cross-examine Ms Wilkinson’s and your children.  The other is your guilty plea.  Those two matters should be considered in mitigation, along with matters in aggravation, in deciding whether the minimum time that justice requires you should serve before being eligible to apply for parole is 20 years.  The Crown does not seek an extension of the period. 

I conclude that the minimum time that justice requires you should serve before being eligible to apply for parole is 20 years.  

It will be for the Parole Board or some other authority sometime after 20 April 2041 to decide if you deserve the privilege of parole.  It will consider whether your rehabilitation (if any), any genuine remorse, and the interests of community protection at that time justify your being released on parole or not. 

I fix a parole eligibility date of 20 April 2041.