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Higgins v The Queen

Higgins v The Queen

Case [2022] ACTCA 26 31 May 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Higgins v The Queen
Citation:	[2022] ACTCA 26
Hearing Date:	20 May 2022
DecisionDate:	31 May 2022
Before:	Mossop, Loukas-Karlsson and Lee JJ
Decision:	1. The appeal be dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – Sentence – Where appellant convicted of manslaughter – Offer to plead guilty to manslaughter – Discount for assistance in the administration of justice pursuant to s 35A of the Crimes (Sentencing) Act 2005 (ACT) – Conduct at trial – Application of Verdins principles – whether specific error – whether sentence was manifestly excessive – Appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT) ss 15, 25 Crimes (Sentencing) Act 2005 (ACT) ss 35A, 36, 27
Cases Cited:	Aslan v R [2014] NSWCCA 114 Blake v R [2021] NSWCCA 258 Blundell v The Queen [2019] ACTCA 34 Firth v The Queen [2018] NSWCCA 144 House v The King (1936) 55 CLR 499 Ngata v The Queen [2020] ACTCA 18 R v Daniel (No 2) [2021] ACTSC 117 R v Higgins (No 2) [2021] ACTSC 202 R v Langi (No 2) [2021] ACTSC 239 R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 505 R v Verdins [2007] VSCA 102; (2007) 16 VR 240 R v Williams-Savage [2021] ACTSC 271 Taylor v R [2020] NSWCCA 46 Urlich v The Queen [2019] ACTCA 30; (2019) 14 ACTLR 267
Parties:	Joshua Higgins ( Appellant) The Queen ( Respondent)
Representation:	Counsel K Ginges ( Appellant) K McCann (Respondent)
Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 44 of 2021
Decision under appeal:	Court: Supreme Court of the Australian Capital Territory Before: Burns J Date of Decision: 26 August 2021 Case Title: R v Higgins (No 2) Citation: [2021] ACTSC 202

THE COURT

Introduction

The appellant, Mr Joshua Higgins, has appealed against the sentence imposed by a judge of this Court for the offence of manslaughter in relation to the killing of Mr Jae-Ho Oh (victim): R v Higgins (No 2) [2021] ACTSC 202 (R).

The offence is contrary to s 15 of the Crimes Act 1900 (ACT) (Crimes Act) and the prescribed maximum penalty is imprisonment for 20 years. The appellant was sentenced to eight years and six months’ imprisonment, with a non-parole period of five years and three months.

The grounds of appeal include two specific errors and a generalised allegation of manifest excess.

Before the sentencing judge

The relevant background facts were set out by the sentencing judge (at R [4]–[23]). It is unnecessary to repeat them in any detail.

It suffices to note that, at the time of the offence, the appellant was 30 years old. He had been friends with the victim for several years. Both were heavy users of alcohol.

On 9 March 2019, the appellant arranged to stay at his house in Canberra. The next morning, the appellant stayed at the victim’s townhouse, and they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Higgins v The Queen

Details

AGLC: Higgins v The Queen [2022] ACTCA 26
Case: [2022] ACTCA 26
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal by Joshua Higgins against the sentence imposed by a judge of that Court for the offence of manslaughter. The appellant had been convicted of manslaughter, contrary to s 15 of the Crimes Act 1900 (ACT), and sentenced to eight years and six months imprisonment, with a non-parole period of five years and three months. The grounds of appeal alleged specific errors in the sentencing process, including a failure to provide an adequate discount for assistance in the administration of justice under s 35A of the Crimes (Sentencing) Act 2005 (ACT), and a failure to properly apply the principles established in *R v Verdins*. The appellant also contended that the sentence was manifestly excessive.

The legal issues before the Court were whether the sentencing judge erred in failing to grant a greater discount under s 35A of the Crimes (Sentencing) Act 2005 for the appellant's offer to plead guilty to manslaughter and for the conduct of the trial, and whether the sentence imposed was manifestly excessive. Specifically, the Court considered whether the 15% discount applied for the offer to plead guilty was inadequate, and whether the sentencing judge failed to give sufficient weight to the manner in which the trial was conducted by the defence in facilitating the administration of justice. The Court was also required to determine if the principles from *R v Verdins*, concerning the impact of mental conditions and custody on sentencing, were adequately applied.

The Court dismissed the appeal. Regarding the s 35A discount, it was held that the 15% reduction for the offer to plead guilty to manslaughter was appropriate, reflecting the unrealised utilitarian value of avoiding a trial. The Court found no error in the sentencing judge's assessment of the conduct of the trial, noting that the defence had not clearly articulated how the trial was conducted efficiently or pragmatically, and that the concessions made by the defence were of limited significance given the overwhelming evidence, particularly concerning causation. The Court also found that the sentencing judge was not obliged to explicitly mention every submission, and the absence of a specific reference to the Crown's concession regarding the conduct of the trial did not demonstrate error. The Court concluded that the sentence was not manifestly excessive and that the *Verdins* principles were adequately considered.

Orders