R v Higgins (No 2)

[2021] ACTSC 202

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Higgins (No 2)
Citation:	[2021] ACTSC 202
Hearing Dates:	26 July; 16 August 2021
Decision Date:	26 August 2021
Before:	Burns J
Decision:	See [39]–[43]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manslaughter – jury trial – jury acquitted offender of murder – jury found offender guilty of statutory alternative of manslaughter –
whether jury entered verdict of manslaughter on basis of unlawful
or dangerous act, provocation or diminished responsibility –
whether proven beyond reasonable doubt that the offender had one of the required mental states for murder when committing
offence of manslaughter – whether offender killed victim while in state of drug-induced psychosis – where offender suffered from Post-Traumatic Stress Disorder – where offender was sleep deprived and significantly intoxicated at time of offending –
whether offender killed victim in circumstances where offender perceived the victim had sexually assaulted and threatened to kill
offender – consideration of risk to community – where offender offered to plead guilty to offence of manslaughter – consideration
of s 35A of the Crimes (Sentencing) Act 2005 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT) s 15(2)
Crimes (Sentencing) Act 2005 (ACT) s 35A
Parties:	The Queen (Crown) Joshua Higgins (Offender)
Representation:	Counsel
T Hickey (Crown) K Ginges (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Hugo Law Group (Offender)
File Number:	SCC 267 of 2019
BURNS J:

1. Joshua Higgins, on 1 April 2021, after a trial which extended over 21 days, a jury acquitted you of a charge of murder but found you guilty of the manslaughter of Jae-Ho Oh. It is now my responsibility to sentence you for that offence. The crime of manslaughter, contrary to s 15(2) of the Crimes Act 1900 (ACT), in the present

circumstances, carries a maximum penalty of 20 years’ imprisonment.

2.       As part of my responsibilities in sentencing you, I must determine the facts upon which you are to be sentenced. I am not required to sentence you on the factual basis most favourable to you, but any facts that I find must be consistent with the jury verdict. I must be satisfied of any fact which makes the offence more serious to the standard of beyond reasonable doubt. On the other hand, I need only be satisfied of the existence of a fact which makes the offence less serious on the balance of probabilities.

3.       An added complication in the present case is that there were three pathways available to the jury to return a verdict of guilty of manslaughter. I will return to that in a moment.

The facts

4.       You and the victim had been friends for several years before 11 March 2019, the date of the offence. On 9 March 2019, after you spent the day in the Southern Highlands with friends, you returned to Canberra and lost all your money gambling. Your mother told you not to return to her house where you had been residing at that time. You messaged the victim and arranged to stay at his house because you had nowhere to go. You and the victim were both heavy users of alcohol. When you arrived at his house the victim was passed out drunk and you woke him up. You had consumed methylamphetamine at about 2am on 9 March 2019 and you were unable to sleep.

5.       The next morning, Sunday, 10 March 2019, you stayed at the victim’s townhouse and

you both consumed alcohol to the extent that you were drunk. You consumed somewhere between 20 and 30 standard drinks. A toxicologist, Dr Robertson, later estimated that your blood alcohol level was about 0.190 at the time of the events leading to the death of the victim. You had also not slept for about 60 hours.

6.       As the Crown accepted, the exact nature and sequence of events in the incident which led to the death of the victim cannot be accurately determined. Your version of events was that after you had gone to bed on the night of 10 March 2019, you woke up with the victim on top of you and with your pants down around the area of your penis. You said that the victim admitted to touching you and that he then started yelling at you and

telling you to “fuck off”. You said that the victim ran to the kitchen and grabbed a knife

and came back at you and you started wrestling. You said that the victim cut his own leg before you got the knife away from him. You said that the victim then got up and went to the kitchen and got another knife, and you grabbed his hand, and he dropped the knife. During the incident you stabbed the victim to his upper back and neck multiple times with some of the stab wounds penetrating his chest wall and his lungs. Other

stab wounds fractured the laminae of the victim’s C2 and C3 vertebrae. The forensic

pathologist who examined the body of the victim identified 34 separate injuries to the victim including 8 sharp force injuries to his face and 14 stab wounds to his back, the back of his neck, buttocks and upper thigh and elbow. I have no doubt that the cause of the death of the victim was blood loss secondary to the stab wounds inflicted on him, and in particular those wounds which penetrated his lungs.

7.       At your trial the Crown challenged your version of events. The Crown submitted that you had been in a drug-induced psychosis at the time that you inflicted the wounds on the victim. The Crown challenged your version that the victim had provoked you by sexually assaulting you.

8.       In my opinion, in trying to work out what happened in this incident between yourself and the victim, it is important to consider what you did immediately after the incident, and to consider observations of you made by others after the incident.

9.      After the incident with the victim you were observed running towards Mary Gillespie Avenue, in Gungahlin, screaming for help. You were barefoot, wearing shorts and a bloodstained white shirt. You were holding a yellow-coloured bloodstained knife. At one point you ran up to a car calling for help. You ran to a unit complex in Elizabeth Jolly Crescent, also in Gungahlin, and pushed all the intercom buttons. You were yelling for help and saying that someone was trying to assault you and that someone had tried to kill you. You said that you were a bit drunk and that you were scared. You were afraid that they may come back and kill you. You asked that police be called. You were told to remain where you were and that someone would be called. You did so, and you also gave your name to the occupants of one of the units before police arrived.

10.     When police arrived, they observed you to appear to be relieved by their presence. You cooperated with police handcuffing you. Police asked you what happened and you said

“[m]y friend came at me with a knife and I took it off him”. You also talked about

someone being stabbed.

11.     You were later interviewed by police. The audio-visual recording of this interview shows you to be visibly shocked and distressed when you were told that the victim had died. You declined to talk about the incident itself, but you did say that the victim had been drinking and was moody and angry. You said that you went to sleep and woke up to the victim sexually assaulting you. You said that you felt violated and angry.

12.     I have no doubt that in the period between the altercation with the victim and you being arrested by police at Elizabeth Jolly Crescent you did not have the time to come up with the version of events which you gave to police. Your volatile emotional state and your state of intoxication at that time also made it very unlikely that you concocted a complaint of having been attacked by the victim at that time. You did not try to avoid the police, and in fact requested that they be called. You appeared to be genuinely afraid. You also gave evidence at your trial broadly consistent with what you told police at the scene.

13.     The issue of self-defence was raised at your trial, and was left to the jury. The jury were directed that they had to be satisfied beyond reasonable doubt that you were not acting in self-defence at the time that you committed the acts which caused the death of the victim before they could convict you of murder or manslaughter. The fact that they returned a verdict of guilty to manslaughter indicates that they were satisfied beyond reasonable doubt that you were not acting in self-defence. That does not mean, however, that they rejected the essential narrative given by you of being sexually assaulted by the victim and attacked by him with a knife.

14.     Self-defence has two limbs. To convict you of manslaughter, the jury only had to be

satisfied beyond reasonable doubt of one of the limbs. It is consistent with the jury’s

verdict that you believed at the time that you inflicted the fatal wounds on the victim that it was necessary for you to do what you did to defend yourself, but that what you did was not a reasonable response in the circumstances as you perceived them to be.

15.     Your counsel submitted that I should find the offence of manslaughter proved on the basis that that you had committed an unlawful and dangerous act which caused the death of the victim. The other avenues available to the jury permitting a verdict of guilty to the offence of manslaughter were provocation and diminished responsibility. In my opinion, the case regarding provocation was never strong. To find the offence of manslaughter proved on the basis of an unlawful and dangerous act would require a finding that you did not have one of the required mental states for the crime of murder at the time that you killed the victim. Despite the number of wounds sustained by the victim, there is some evidence which tends to support that proposition. As I have already observed, when seen immediately after the altercation with the victim, you were concerned that the person you said had tried to kill you may return and try again. In context, this could only have been a reference to the victim. This suggests that at that time you did not expect the victim to be either dead or seriously injured. Additionally, you were visibly shocked and distressed when police told you that the victim was dead, again suggesting that you had not anticipated that the wounds that you inflicted on the victim were fatal.

16.     In considering whether I am satisfied beyond reasonable doubt that you had one of the mental states required for the crime of murder at the time that you inflicted the fatal wounds on the victim, I must consider the severity of those wounds and the extent to which they are consistent or inconsistent with you possessing the mental state for the crime of murder. I must also, however, bear in mind the effect of your intoxication with alcohol at the time of this incident, and your mental condition. I must also bear in mind your highly emotional state of mind at the time when the incident occurred and that you were significantly sleep deprived.

17.     In his report dated 18 March 2021, Dr Allnutt, a forensic psychiatrist, stated that a person suffering from Post-Traumatic Stress Disorder (PTSD), as you do, is more prone to misperceive and thus misjudge the level of threat presented by another due to heightened sensitivity to threat. It is therefore possible that such a person could overreact to a perceived threat. In addition, it is necessary to consider the level of your alcohol intoxication which was quite considerable. Finally, I should also consider that the events as you described them took place upon you being awakened from sleep by the victim.

18.     I am satisfied that drug-induced psychosis can be ruled out. Dr Allnutt noted that there was no convincing evidence of psychosis in the period between your consumption of methylamphetamine and the altercation with the victim, and there was no clear evidence of psychosis after you were taken into custody. In addition, the quantity of drug found in your system after you were arrested made it highly unlikely that at the time of the incident giving rise to the death of the victim you were in a drug-induced psychosis.

19.     It is not possible to say with any certainty what happened between you and the victim in the period leading up to you inflicting the fatal wounds upon the victim. I am satisfied on the balance of probabilities, however, that you perceived that the victim had sexually assaulted you and had attempted to kill you with a knife. I am satisfied on the balance of probabilities that in this context there was a violent struggle with the victim in which he sustained fatal injuries, but in which you sustained relatively minor injuries. I am

satisfied on the balance of probabilities that when you fled the victim’s townhouse you

were concerned that he may follow you and try to harm you. I am further satisfied that

at that time you did not know that the victim’s wounds were fatal or contemplate that

they may be. For this reason, I cannot be satisfied beyond reasonable doubt that you held any of the mental states required to be convicted of the crime of murder. I will proceed on the basis that your conviction for the offence of manslaughter is based upon proof that you caused the death of the victim by a dangerous and unlawful act or acts.

20.     Before moving on from this point, I note that the Crown submitted that the evidence of

neighbours living around the victim’s townhouse that they heard noises on the evening

of 10 March 2019 and into the following morning should lead me to find that there was a sustained attack upon the victim over a significant period. In my opinion, I could not safely make that finding to the standard of beyond reasonable doubt. Much of that evidence was equivocal, and it is quite possible that none of it had anything to do with the present events. Certainly, I cannot be satisfied to the requisite standard that any of the noises heard by those witnesses related to the events in which the victim was fatally wounded. Similarly, the evidence of the forensic examination of the room in which the

victim’s body was found does not assist in definitively determining what occurred during

the altercation between you and the victim.

21.     I will observe at this point that the Crown could not suggest any motive for you killing

the victim. The Crown’s case therefore was that you were acting in a drug induced

psychosis consequent upon your voluntary use of methylamphetamine. As I have said, the medical evidence simply did not support that proposition. The fact that I can rule out drug induced psychosis, and that there is no demonstrable motive for you to have killed the victim, supports my conclusion that you inflicted the fatal wounds on the victim in circumstances where you perceived that he had sexually assaulted you and threatened to kill you. It is highly likely that this perception was influenced by your PTSD and your heavy intoxication.

22.     All offences of manslaughter involve the unlawful taking of a human life. As such, all offences of manslaughter are serious criminal offending. Within that general principle, however, there is still a very substantial range of offences of varying objective gravity.

In the present case, the offence occurred in the victim’s own home and involved

multiple inflictions of wounds using a knife and a sound bar. In assessing the objective gravity of the offence, I must take into account that you were subject to perceived provocation and physical attack by the victim, causing you initially to fear for your own life. Your attack upon the victim, however, went on for much longer than would have been reasonably necessary to defend yourself. I am satisfied that you struck the victim on one or more occasions with the sound bar when he was disarmed and slumped on the floor in the lounge room. The injuries which he sustained because of your attack upon him with the sound bar were not fatal injuries. I also take into account the number of wounds sustained by the victim. The incident was not the subject of any premeditation or planning. Considered entirely objectively, the present offence of manslaughter falls slightly above the mid-range.

23.     I must also, however, assess your moral culpability for this offence. I am satisfied that some reduction in your moral culpability is appropriate taking into account your PTSD. The importance of general deterrence in sentencing should also be moderated by reason of the effects of your PTSD. I treat your intoxication as a neutral matter. While you have a history of aggressive behaviour when intoxicated by alcohol, the circumstances of the present offence and the fact that you were reacting to aggressive conduct on the part of the victim leads me to conclude that your intoxication should not be considered an aggravating circumstance. I would assess your moral culpability as in the lower half of the mid-range.

Subjective features

24.     You are currently 32 years old, and you were 30 years old at the time of this offence. A Pre-Sentence Report prepared for the sentence hearing notes that you have been subject to supervision by ACT adult corrections in the past, and that your response to supervision was satisfactory.

25.     Your parents separated in 2019, but you maintain a supportive relationship with both of your parents and with your siblings. You completed your education to Year 12, and then completed a Bachelor of Arts degree at university. You have worked in the hospitality industry.

26.     You told the author of the Report that you engaged in problematic gambling from when you were 18 years old. You were the victim of a serious assault in 2010 which required reconstructive surgery to your skull and face. Due to this event, you developed PTSD, the symptoms of which included depression, anxiety and paranoia. Your use of alcohol increased in 2011 to assist in managing your pain. You also commenced use of cannabis at about this time. You have been involved in multiple incidents of violence while intoxicated since that time, but none as serious as the present.

27.     You have attempted alcohol rehabilitation and used anti-alcohol medication in the past with limited success. You have had a habit of consuming alcohol to the point of blackout. You started using methylamphetamine irregularly in 2013, and from 2017 onwards you were using that substance twice weekly. You were both smoking and injecting that drug. You attended Kadesh rehabilitation facility in New South Wales for 12 weeks in 2018, but you were only able to remain abstinent of illicit drugs for one month after leaving that institution.

28.     You experienced anxiety as a child. You were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and medicated. You stopped taking dexamphetamine for your ADHD after about six months.

29.     You acknowledged to the author of the Pre-Sentence Report that your mental health and alcohol consumption were significant factors in the present offence. You also expressed regret for your actions.

30.     You wrote a letter to the Court, which was tendered at the sentence hearing. In your letter you expressed remorse for your actions. You refer to problems that you have in seeing your six-year-old daughter at the Alexander Maconochie Centre (AMC) due to COVID-19 restrictions. Your marriage has broken down because of you being in custody. You refer to having been assaulted on several occasions in the AMC. You state that you want to undertake the Solaris program to address addiction problems in the AMC and then to proceed to another residential or day rehabilitation program upon release. You understand that it is critical that you address alcohol and drug abuse. You have undertaken multiple courses within the AMC directed towards your rehabilitation.

31.     I also received a letter from your mother which was tendered at the sentence hearing. She speaks of how you regret your actions which led to the death of the victim. She refers to the love which you have for your daughter, and the difficulties that you face in maintaining contact with your daughter in the AMC. She states that you have continuing family support and she is willing to provide you with accommodation upon your release.

32.     At the sentence hearing I also received a letter from David Bell dated 22 July 2021. He is a person who is involved in training inmates at the AMC to improve their prospects for employment upon release. He refers to your excellent attitude and achievement in vocational studies in the AMC.

Risks to the community

33.     It is difficult to determine the extent to which you may present a risk to others in the community in the future. The best evidence is that contained within the report of Dr Allnutt dated 20 July 2021 prepared for the sentence proceedings. He identifies several factors that may precipitate a recurrence of violent behaviour, factors that mitigate the risk of further violent behaviour and factors that are relatively ambiguous. Dr Allnutt regarded you as falling into a group of mentally ill offenders at low/moderate risk of aggression for the foreseeable future. He expressed the opinion that if you remain engaged in psychiatric/psychological treatment and remain abstinent from substances in the community, your risk is manageable. If you relapse into substance use your risk would increase because this would likely result in destabilisation of the protective risk factors associated with future aggression. Dr Allnutt suggested a treatment plan, which I would commend to those responsible for your supervision at the AMC, and to the Sentence Administration Board if it comes to consider release on parole at some future time.

34.     It is clear beyond any doubt that you need to stop consuming alcohol and illicit drugs such as methylamphetamine. You cannot afford to take the risk of using intoxicants against your background of underlying mental health conditions associated with your PTSD. You also need to seriously and rigorously address your PTSD by undertaking appropriate psychiatric and/or psychological treatment.

Other sentencing considerations

35.     You did not enter a plea of guilty to the charge of manslaughter and as such you are not entitled to a reduction in sentence based upon a plea of guilty. You did offer, through your lawyers, at the Criminal Case Conference to enter a plea of guilty to manslaughter based on diminished responsibility. In my opinion, that was an appropriate and reasonable offer. It was also reasonable in the circumstances where that offer was rejected by the Crown, to not offer a plea of guilty to the charge of manslaughter upon arraignment for the crime of murder. It was quite clear from the result of the offer made at the Criminal Case Conference that any such plea at the time of arraignment would not have been accepted by the Crown.

36. Your offer to plead guilty to the charge of manslaughter should be reflected in a discount on sentence pursuant to s 35A of the Crimes (Sentencing) Act 2005 (ACT). If accepted, your offer would have avoided the necessity for a trial and would have resulted in significant savings for the Territory.

37.     I am satisfied that you have shown remorse for your actions which led to the death of the victim.

Consideration

38.     A sentence of imprisonment is the only appropriate disposition for this offence taking into account all the circumstances to which I have referred. Both the Crown and your counsel urged the need for a lengthy parole period to ensure that you are closely supervised as you attempt to comply with your treatment plan in the community.

Sentence

39.     You will be convicted of the offence of manslaughter (CC 2019/3160) and sentenced

to eight years and six months’ imprisonment commencing on 11 March 2019 and

expiring on 10 September 2027. Were it not for your offer to plead guilty to the offence

of manslaughter, I would have imposed a sentence of 10 years’ imprisonment.

40.     This places you in breach of two Good Behaviour Orders made in the ACT Magistrates Court on 5 November 2018. The first such Order was for an offence of possession of a knife without a reasonable excuse (CC 2018/1895) for which a sentence of

four months’ imprisonment was imposed, wholly suspended, with a

Good Behaviour Order for 18 months.

41.     The second Order was for an offence of common assault (CC 2018/2594) for which

you were also sentenced to four months’ imprisonment, wholly suspended, with a

Good Behaviour Order for 18 months.

42.     Each of those Good Behaviour Orders are cancelled and on each charge, you are

re-sentenced to three months’ imprisonment, each such sentence to commence on

11 March 2019 and expire on 10 June 2019

43.    I set a non-parole period of five years and three months, commencing on 11 March 2019 and expiring 10 June 2024.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: