R v Johnstone
[2011] VSC 300
•30 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1556 of 2007
| THE QUEEN |
| v |
| AARON JAMES JOHNSTONE |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8-10, 14-16, 20-23, 28 June 2011 | |
DATE OF SENTENCE: | 30 June 2011 | |
CASE MAY BE CITED AS: | R v Johnstone | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 300 | |
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CRIMINAL LAW – Sentence for murder – Extended and escalating violence – Alcohol – Alleged provocation – Factors affecting burden of imprisonment – Some prospects of rehabilitation – Retrial – Change of plea – 18 years' imprisonment non-parole period of 14 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC with Ms S Flynn | Craig Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr J Desmond | Marich Legal |
HIS HONOUR:
Aaron James Johnstone you have been found guilty by a jury of 12 of the murder of Phillip William Higgins on 22 September 2006.
Mr Higgins was your housemate and had been your friend for a number of years. He had taken you into his home to live.
On the night of his death you had both been drinking over many hours. Higgins was very substantially affected by alcohol and I accept that you were also substantially affected.
During the course of the evening you first visited, and then in turn were visited by, various friends. I accept their evidence that you both appeared amicable, although affected by alcohol.
Ultimately Higgins went to bed while you sat up and continued to watch a movie.
At about 11:00 pm Higgins came back into the living room area and spoke to you. You say he was naked, however because a pair of his underpants were subsequently found in a torn condition next to his body, I am not satisfied this is true.
You also say that Higgins, who was homosexual, propositioned you. I accept that he may have done so. He had a blood alcohol content of 0.32 at the time and was described by other witnesses as having a propensity for making sexually suggestive statements when drunk.
Whatever he in fact said, it is apparent that you became enraged. Both in your record of interview and in the oral evidence you gave before the jury, you describe initially punching him to shock and stop him. You then, in your words, "laid into him" and punched him to the head and chest.
You then kicked his head like a football, fairly hard, as you say. And I am satisfied that you did so twice, as you first said to the police. Higgins' head was by this stage bleeding profusely and he was spitting blood. You then admit picking up a ceramic statue of a platypus weighing in excess of 8 kilograms and dropping it from chest height directly onto Higgins' head. This evidently rendered him unconscious.
I am satisfied, however, that your account of what occurred materially understates your assault on Mr Higgins. It does not adequately explain how six of his ribs were broken, nor does it refer to the use of a 5.5 kilogram chair which, it is apparent from the circumstantial evidence, was used to strike Mr Higgins at least twice. Nor, in my view, does it adequately explain the extent of the blood spatter found in the vicinity of Mr Higgins' body.
It follows that your account of what occurred must be regarded as no more than part of the story.
The injuries you inflicted to the head and chest of Mr Higgins were horrific. Dr Burke identified some 30 injuries in all, including 20 to the head and neck. The injuries included underlying fractures to the mid-third of the face, both jaws, the hyoid bone in the neck, and six ribs.
In addition, Mr Higgins' face was battered and savagely lacerated. One tooth was broken and another was found in one of his lungs.
His left lung was punctured as a result of the fracturing of his ribs and he suffered a tension pneumothorax which, it seems likely, accelerated his death.
I am satisfied beyond reasonable doubt that you deliberately battered Mr Higgins into an insensate state by the sequential use of escalating force involving your fists, your foot, the chair and the platypus.
There are a number of aggravating factors associated with your offending.
(a) Mr Higgins was a much smaller and older man than you. He was, as you told police, "tiny" by comparison to you.
(b) He had a blood alcohol content of 0.32 and I am satisfied that he was obviously incapable of defending himself to any real degree.
(c) You were in the house rented by him. You had chosen to move in and remain living with him. He was your friend of some years. Your attack was a savage betrayal of his trust and generosity.
(d) The manner in which you bashed Mr Higgins was deliberately sustained. You were not content with punching and kicking him. You located and took up heavy objects to use as weapons. You focused your attack on his head and upper body.
(e) I am satisfied that the assault with the platypus occurred when Mr Higgins was already in a seriously wounded and bloody state, lying prone on the floor at your mercy.
(f) The dropping of an 8 kilogram object onto the head of a totally defenceless man lying on the ground in a wounded state was an act of absolute brutality.
(g) You have demonstrated limited remorse for your actions and have not shown that you accept responsibility for your criminal conduct.
As against this I accept your counsel's submissions:
(a) that there is no evidence that the killing was premeditated;
(b) that your actions were somehow triggered by rage generated in the context of your relationship with Mr Higgins;
(c) that you were affected by alcohol, and I cannot be satisfied beyond reasonable doubt that you intended to kill as distinct from cause really serious injury;
(d) you exhibited and felt some remorse on the morning after the killing; and
(e) that you were relatively cooperative with police (although having regard to inconsistencies and gaps in your interview, I am not satisfied on the balance of probabilities that you were completely frank with them, even taking into account the probability that your memory was to a degree fractured by the alcohol you had consumed).
Your counsel further submitted that if provocation remained a partial defence to murder it would have been left to the jury in your case and should be taken into account in assessing your culpability.
I accept that, under the law as it was until relatively recently, once evidence of subjective provocation of the type you allege were placed before the Court, the issue of provocation would have been left to the jury.
I do not accept, however, on the balance of probabilities that provocation occurred which might have caused the ordinary person to have lost control and do what you did. First, I do not accept as truthful your account in oral evidence of what Mr Higgins said prior to your assault upon him. Nor do I believe the jury accepted it. It was embellished with a series of crude statements which were not recounted to police on the day after the killing during their extensive interview with you. Further, they were not mentioned by you to Dr Sullivan or Mr Cummins when you saw them in 2008. They involve attribution of crude and forceful remarks[1] to the deceased which are not consistent with the evidence as to his general character, and I am satisfied that they were recent inventions.
[1] See Transcript, p 408:
‘I want to suck your cock. Can you suck my cock?’
‘Would you like being fucked in the arse?’
‘Playing hard to get?’
‘Oh, playing hard to get, are we?’
‘I was sexually abused too as a child but I learnt to like it.’
Secondly, I do not accept that even if Mr Higgins had made homosexual advances to you in the terms you now assert, the ordinary person might be so provoked as to totally lose control and do what you did. The statement on which your counsel placed most reliance, namely, "I was sexually abused too as a child but I learnt to like it", coming from a man who had befriended you and was obviously drunk, is not something which would provoke the ordinary person to engage in the extended, savage and escalating attack in which you engaged. I should add that I do not accept your counsel's submission that the five minute estimate you gave police of the time involved in attacking Mr Higgins should be materially revised. You were drunk and you engaged in a series of attacks. Further, your account of events in the witness box failed to explain a series of circumstances, including the torn underpants and tea towel found next to the deceased's body, blood spatter outside the main door, and the apparent use of the chair to strike the deceased at least twice.
Conversely, the circumstantial evidence as a whole, and most particularly the evidence as to the injuries suffered by Mr Higgins, coupled with the blood spatter evidence, bespeaks an extended and vicious assault in terms of the manner in which injury was inflicted and the consequences of such injury. It is one thing to say that until the reform of the law relating to defences to homicide, provocation would have been left to a jury. It is quite another to say that it would have had some realistic prospects of success in your case. I am satisfied that it would have had none.
The consequences of your actions have been the death of a man universally described by the witnesses as having a kindly and generous nature.
I have received victim impact statements from a number of members of Mr Higgins' extended family:
Wayne Higgins (brother)
Marilyn Higgins (sister-in-law)
Susan Kelly (sister)
Dawn Higgins (mother)
Rodney Higgins (brother)
Karen Bekker (sister)
Julie Schroeder (sister)
The victim impact statements of Mrs Higgins and Susan Kelly were read by Ms Kelly to the Court. The victim impact statements are eloquent and pain-filled documents. They reflect the emotional trauma suffered by Mr Higgins' family as a result of the bloody and violent death of a son and brother. Phillip Higgins' family has lost a dearly loved member in circumstances which will leave them with a permanent sense of overwhelming hurt and loss. No sentence which I impose will restore to them what they have lost or diminish their grief. You have permanently scarred their lives.
Turning to your personal background, I have two reports from Dr D Sullivan, psychiatrist, dated 5 May 2008 and 26 August 2008. I also have a report from Mr J Cummins, psychologist, dated 19 November 2008. I will adopt Coghlan J's summary of their relevant contents from the sentence in your first trial as follows:
16Your own background is somewhat unfortunate. Your life has been destroyed by the excessive use of alcohol and other drugs. You were born in Melbourne and recovered from early cardiac problems. Your parents separated when you were a baby and you were raised by your mother. Your father remarried and you had little to do with him. You did spend a few months with him and your stepmother on occasions when you were about five years of age and then later at about ten years of age. Your stepmother was physically abusive to you. You returned to your mother. You grew up without a male role model.
17You were also sexually abused by some male cousins who were about five years older than you, between the ages of seven and ten, and later by a male friend of your mother’s. It may well be that you blame those matters for your life after that and that background contributed in part to your offending…
18You became a State Ward at about the age of 12. Your schooling and accommodation was variable and you appear to have left school at about age 14.
19Your work history is not clear, but you appear to have been involved in both carpentry and plumbing apprenticeships. The first for 18 months, the second for six months. The second was terminated when you lost your licence. You did work for blind manufacturers for about two and a half years, but Mr Cummins, your psychologist, observed: ‘He left that job because of dependency on alcohol and drugs’. You were then 21. At about that time you had been in a relationship with a young woman for around two years, but that relationship was marked by drug abuse, mostly amphetamines.
20You have maintained contact with your mother, although that contact has been intermittent. You appear to have her support. She does not respond well in stressful situations and did not attend the trial but I received a letter from her on the plea.
That is, Coghlan J received the letter, and I have also read that letter.
21After losing your job in about 2003, you went to the Northern Territory. You went to the Northern Territory to do something about your drug and alcohol addictions. You seem to have done some manual work there, but you do not seem to have been able to get away from drugs and alcohol. Your drinking was out of control; drinking a slab of beer (24 cans or stubbies) and a bottle of scotch every day. You were twice convicted of drink driving and associated offences. You were subject to a five year licence disqualification at the time of this offence.
22More importantly, you were admitted to hospital under the care of the Top End Mental Health Service. You had been diagnosed with major depression and alcohol abuse. You remained in residential psychiatric care for 16 days. You had been admitted to the Maroondah Hospital psychiatric ward for two days in 2000 in similar circumstances to your Northern Territory admission and had some contact with a CAT team at that time…
23In the Northern Territory you were prescribed ‘mood stabilising medication including an antipsychotic’ (page 3 of Cummins’ report). When you returned to Melbourne in about March 2006, you were referred to Bayside Community Health Centre. At that Centre, you were prescribed the antipsychotic medication Seroquel (100mg per day). You attended the Centre on about 12 occasions in about six months for drug and alcohol counselling. That is apparently the first counselling you have had particularly relating to sexual abuse.
24On the evidence before me, you were also placed on some medication to help reduce your alcohol intake, but you did not persist with it. You continued to use alcohol in excess and smoke cannabis.
25You were employed for some time while living with the deceased. Your alcohol consumption was somewhat moderated when you were working, but otherwise your daily intake was about a slab and a bottle of vodka. You had not taken your Seroquel in the days leading up to the offence, but nothing seems to turn on that.
Like Coghlan J, I accept that the alcohol you had consumed on 22 September 2006 contributed to your anger at the time of the fatal attack on Mr Higgins.
I also accept that the level of your alcohol use on that night reflected a longstanding problem with alcohol abuse, which in all probability has its origins in your troubled childhood and early teen years, and the failure of the support services offered by the State to help you.
Nevertheless, I take the view that the nature of your attack upon Mr Higgins demonstrated a real degree of focus and control, both with respect to the nature of the injuries inflicted and with respect to the use of weapons.
Coghlan J went on to say:
28You are not a stranger to the law. You have 28 prior convictions from 11 Court appearances. The offences are fairly typical of over-indulgence in alcohol, but tend to show an inclination to strike out at property and persons. You have eight findings of guilt for damage to property. You have prior convictions for causing serious injury recklessly, reckless conduct endangering serious injury and unlawful assault. You have never been sentenced to an actual term of imprisonment. It appears that you have been given opportunities in the past to have access to supervision and help. In particular, in February 2001 when you were convicted of reckless conduct endangering serious injury at the Dandenong Magistrates’ Court, you were released on a Community-Based Order with the condition that you
submit for testing for alcohol/drug use as directed by the Regional Manager and to undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed by the Regional Manager.
You breached that Community-Based Order. You were then 19 years of age. You did not avail yourself of that opportunity.
29It is certain that at the time of the murder you were an alcoholic and you had abused a wide range of other drugs in your relatively short life. You do not appear to have any intellectual disability, but you function in the below normal range. You are regarded as being at risk of developing a personality disorder. You say that you are ‘feeling better’ now that you are drug and alcohol free. You are still taking mood stabilising medication, but you are moderately depressed, particularly relating to the question of what sentence [the Court] will impose on you.
30You have done quite well since being in gaol. The question of your psychological and psychiatric condition must be examined in detail. It is true that at times in your life you have been treated for major depressive illness, which at least to some degree has been reactive to your problems with alcohol and drugs.
31 Dr Sullivan found:
Mr Johnstone would satisfy a diagnosis of polysubstance dependence. He was at the time of the alleged offence dependent on alcohol and abused cannabis. He gave a history of withdrawal delirium symptoms, commonly described as delirium tremens. He had a past history of abuse of solvents and benzodiazaepines, and likely dependence on amphetamines. His offending history reflects the disinhibiting effects of alcohol intoxication, which may reduce behavioural self-control. Intoxication would seem to have been a significant element in the offence as alleged.
He has a past history of recurrent depressive episodes, which have in the past required psychiatric admission, most recently in 2006 in Darwin. At this episode he reported hearing occasional indistinct voices and was ‘a little paranoid’ but these features were not persistent. His depression dates back to early teens. There is no indication that these episodes have in the past been accompanied by significant psychotic symptoms, although at times he has self-harmed or been suicidal. He was currently mildly dysphoric, reflecting adjustment to incarceration.
Mr Johnstone describes longstanding impulsivity, emotional lability, angry outbursts, erratic engagement in employment, self-harm and substance use. This history is consistent with features of borderline personality disorder, although corroboration of this diagnosis would require longitudinal assessment. Certainly his background includes features which may be associated with the development of this personality disorder.
The witness statements, Forensic Medical Officer assessment and occurrent police interview give no indication of psychotic symptoms. Mr Johnstone described his attack on Mr Higgins as precipitated by him losing his temper when a homosexual advance was made upon him. He has a long history of poor anger control. He described having missed some doses of Seroquel, although this was prescribed in a low dose, apparently for anxiety, and there is no indication that it had been prescribed due to the presence of psychotic features. I do not believe that missing a few days of this medication would have had significant effects on Mr Johnstone.
32 Mr Jeffrey Cummins said:
In my opinion he did not present as having any obvious personality disorder although his history would suggest he is at risk of developing a personality disorder. He spontaneously stated he was feeling ‘better’ now that he was both drug-free and alcohol-free – although he is still taking mood stabilising medication.
His stream of thought was normal although evidenced a depressive theme. I assessed him as being moderately depressed. He also stated he was feeling anxious about the outcome of his plea – in terms of the duration of the sentence imposed on him.
…
He may have some alcohol/drug induced brain damage but only at a low level. He was able to carry on quite a coherent conversation in the interview.
He has a documented psychiatric history for which he was prescribed mood stabilising medication. In my opinion he is still at an early stage in terms of adjusting to and accepting the jury verdict. In my opinion his mental state should be monitored when he is sentenced. He is clearly hoping he receives a sentence more akin to the duration of sentence typically imposed in relation to manslaughter as opposed to murder. To date he has not received any regular counselling from a psychiatric nurse or any other mental health care provider – whilst on remand.
Given his documented mental health history, and the fact he is now on mood stabilising medication, it is my opinion the principles enunciated in Verdins et al are relevant, from a clinical perspective, in terms of sentencing. In my opinion it is imperative that whilst incarcerated he complete an anger management program and he indicated he would willingly participate in such a program. Indeed, he presented as being motivated to participate in whatever programs were made available to him. In a general sense, he presented as having a dependent personality style and it was therefore not surprising he stated when he had his liberty and was sober and drug-free he was a very capable and loyal employee. He said he was enjoying his work in the laundry at the MRC.
I accept you have a long history of anger control problems and that these are directly associated with alcohol abuse and extensive poly-substance abuse. As I have said, Dr Sullivan's view is that at the time of killing Mr Higgins you were dependant on alcohol. You also had a history of recurrent depressive episodes and demonstrated features of borderline personality disorder. The psychiatric evidence does not, however, demonstrate that you were suffering from a separately diagnosable psychiatric illness at the time of killing of Mr Higgins. Mr Desmond did not submit otherwise and expressly disclaimed the need for further psychiatric evidence to be obtained to supplement that previously provided.
I further note, Dr Sullivan said in his report of 26 August 2008:
Mr Johnstone describes a history of sexual abuse as a child. This was not on his account a significant factor in his parlous life circumstances. I would not regard this as related to the alleged offence. Given the significant role of intoxication, I would not have regarded Mr Johnstone as preoccupied with these events and think it is unlikely that they were germane to the alleged events. The material suggests that Mr Higgins had on occasion made sexualised comments to Mr Johnstone and there is no indication that he had invested these in any way with his reported history of sexual abuse.
Dr Sullivan did not have the benefit of your oral evidence in which you specifically attributed your loss of control at the time of the fatal assault in part to a statement in which Mr Higgins referred to having been sexually abused as a child himself and having grown to like it. As I have said however, I am not persuaded that this part of your evidence is, on the balance of probabilities, true. Even if it is true, the evidence as a whole supports the view that Dr Sullivan's conclusions are correct. This was a killing done in drunken rage within the context of a pre-existing relationship. It was not the product of psychiatric illness.
It follows from the psychiatric and psychological evidence, however, that you do have prospects of rehabilitation if your alcohol abuse problems can somehow be addressed. You are still relatively young, only 29, and the prospects of such rehabilitation must be maximised, both in your own interests and the interests of the community. In my view, this is the most significant factor favouring a lower rather than a heavier sentence in your case. Conversely, however, I believe that if your problems with alcohol are not addressed you are highly likely to relapse into violent offending. Indeed, you will have real difficulties in complying with the conditions of any parole which you may be granted. You will have to take steps to confront the damage the grog has already done to you and caused you to do to others. Unless you learn to control your drinking, and, in turn, manage your anger, your future is a very bleak one.
You have now been in custody for nearly five years. During that time it appears that you have applied yourself and made good progress. I accept that initially, as Dr Sullivan and Mr Cummins stated in 2008, you were more vulnerable than the ordinary person to stress upon your imprisonment.
I also accept that you have ongoing pain and difficulty as the result of a lumbar prolapse. And I note that both Dr Sullivan's report and the report from the Northern Territory Hospital, which was tendered to me, record you as having hepatitis C (although it appears with no evidence of damaged liver function). When all these matters are put together I accept that it is probable your imprisonment has been, and will be, more burdensome than it ordinarily would be.[2]
[2]R v Smith (1987) 44 SASR 587; R v Boxtel [2005] VSCA 175.
In summary, the chief matters which might be said to constitute mitigating factors favouring a lower as against a heavier sentence in your case are as follows:
(a) I cannot be satisfied you intended to kill Mr Higgins as distinct from cause him really serious injury;[3]
[3]Although I note that this factor could not significantly affect your moral culpability: See R v Wilson [2011] VSCA 12.
(b) your conduct occurred in the context of alcohol fuelled rage which although it in no way excuses your conduct, may be seen as in one sense partially explaining it;
(c) in turn, the combination of your age and the identification of your offending as having its roots in alcohol dependence, provide a possible basis for your rehabilitation;
(d) I accept your conduct was followed by some expressions of remorse the following day, and that your understanding of what occurred is complicated by a fractured memory;
(e) imprisonment will impose a heavier burden upon you than on others.
The prosecution has submitted that in the trial before me (unlike that before Coghlan J) you did not plead guilty to manslaughter. In turn, it is submitted that this factor was one which Coghlan J took into account in your favour, and because it no longer applies I should regard the sentencing exercise as re-opened. In particular, it was submitted that it is open to me to moderately adjust your sentence by way of a more severe penalty. Although it is true that your plea altered upon retrial, you nevertheless conceded before the jury from the outset of the retrial that you caused Mr Higgins' death by way of conscious, voluntary and deliberate acts. I am not persuaded that your change of plea substantially changed the context of the trial in these circumstances. The central issue remained the question of murderous intent, just as it was upon the first trial. You accepted that you had deliberately caused the injuries which killed Mr Higgins, and the fact that manslaughter was left to the jury does not bear significantly upon the weight of the evidence relating to remorse.
In my view, your case raises serious issues of both personal and general deterrence. I doubt your prospects of rehabilitation unless you can mature sufficiently to control the abuse of alcohol. The sentence I impose must bring home to you the seriousness of your offending and the fundamental need for you to permanently change your way of life. The risk that this will not occur raises a significant issue of protection of the public.
In terms of general deterrence, the sentence I impose must also convey to others that alcohol fuelled violence will simply not be tolerated by this community. Society cannot and will not accept the callous beating, kicking and assault with weapons by one person of another materially weaker and vulnerable person within a domestic situation, or for that matter, any situation.
Mr Johnstone, in sentencing you I must impose a sentence which is just in all the circumstances of the case. That sentence must reflect the sanctity of human life and the gravity of the offence of murder, which is reflected in the maximum penalty of life imprisonment which the law provides for the offence.
But for the fact that I am sentencing you upon a retrial I would have imposed a sentence of somewhat more than 18 years' imprisonment. Nevertheless, I accept that you should not be seen to be punished for your successful appeal from the previous verdict of guilty reached by a jury in respect of the murder of Mr Higgins.[4] Further, I do not in all the circumstances of the case regard the fact that you withdrew your plea of guilty to manslaughter upon the retrial as sufficient reason to depart from the sentence previously imposed.
[4]R H McL v The Queen (2000) 203 CLR 452, [23], [72]; R v Chen [1993] 2 VR 139.
Mr Johnstone I sentence you to 18 years' imprisonment for the murder of Phillip Higgins. I fix a minimum non-parole period of 14 years. I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have served 1,741 days in custody (not including today). I direct such declaration be noted in the records of the Court.
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