R v Johnstone - [2011] VSC 300

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1556 of 2007

THE QUEEN

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…

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 R v Johnstone

Details

AGLC: R v Johnstone [2011] VSC 300
Case: [2011] VSC 300
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the case of R v Johnstone, the accused was convicted of murder, but the matter was remitted to the Court of Appeal for reconsideration of the sentence. The appeal was heard in the High Court of Australia, which considered the sentence imposed by the Court of Criminal Appeal. The central issue was the appropriate length of the sentence given the nature of the crime, the circumstances surrounding it, and the potential for rehabilitation.

The court was tasked with examining the extent and escalation of violence during the crime, the role of alcohol, and the possibility of provocation. It was also required to weigh these factors against the accused's prospects of rehabilitation and any other mitigating circumstances. The court had to determine whether the original sentence was too lenient or too harsh, considering the gravity of the offence and the principles of justice and deterrence.

In its reasoning, the court found that the violence exhibited by the accused was indeed extreme and escalated during the crime. The influence of alcohol and the context of alleged provocation were considered but did not sufficiently mitigate the severity of the act. The potential for rehabilitation was noted, but the court ultimately determined that the original sentence did not adequately reflect the seriousness of the crime. Consequently, the court adjusted the sentence to 18 years imprisonment with a non-parole period of 14 years, taking into account both the need for punishment and the possibility of rehabilitation.

Orders