R v Johnstone - [2008] VSC 584

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:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	8-12, 15-19, 22 September 2008 and 10 December 2008 (Plea)
DATE OF SENTENCE:	19 December 2008
CASE MAY BE CITED AS:	R v Johnstone
MEDIUM NEUTRAL CITATION:	[2008] VSC 584

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CRIMINAL law – Prisoner pleaded guilty to manslaughter – Jury found prisoner guilty of murder – Prisoner assaulted deceased with punches, kicks, an eight kilogram platypus statue and an office chair – Prisoner said deceased had been making homosexual advances – Prisoner has long history of alcohol and other drug abuse and was sexually abused in childhood – Diagnosed with depression, prescribed anti-psychotic medication – Prior convictions for violence against people and property – Applicability of principles in Verdins – Impact of prisoner’s intoxicated state at time of commission of offence – Applicability of principles relating to provocation – Sentenced to 18 years’ imprisonment with a minimum non-parole period of 14 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gibson	Office of Public Prosecutions
For the Accused	Mr G. Meredith	Victoria Legal Aid

HIS HONOUR:

Aaron James Johnstone, on 10 September 2008 you pleaded not guilty before me and a jury to the murder of Phillip William Higgins, who was your landlord and friend.

At your trial, which lasted nine days, you pleaded guilty to manslaughter. It followed that the sole issue in the trial was that of intent. It was contended by Mr G. Meredith of counsel on your behalf that the jury could not be satisfied that you had formed the intention to kill or cause really serious injury. That submission was based principally on your state of intoxication resulting from the consumption of a large amount of alcohol and the use of cannabis.

The jury were satisfied that you had formed at the least the intent to cause really serious injury and you were convicted of murder on 22 September 2008.

I am satisfied that your plea to manslaughter was a genuine attempt by you to take responsibility for what you had done. You had then, and still have, difficulty in accepting that you deliberately murdered Phillip Higgins, who, in ordinary circumstances, was a friend of yours.

In your interview with the police, you accepted that you had struck the deceased, kicked him and also struck him with a concrete statue of a platypus. “Struck” may be too strong a word; you said and demonstrated that you had dropped the statue on the deceased.

You omitted any mention of having struck the deceased with the base of an office chair. The injuries to the body, as amply demonstrated in the photographs, indicated that you had brought the legs of the chair down on the upper body of the deceased at least once.

In your Record of Interview you admitted causing the death of Phillip Higgins as described above. You said that you…

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 [2008] VSC 584
Case: [2008] VSC 584
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the case before the court, the prisoner had pleaded guilty to manslaughter but was subsequently found guilty of murder by a jury. The deceased had been subjected to severe violence, including punches, kicks, and the use of an eight kilogram platypus statue and an office chair. The prisoner claimed that the deceased had been making homosexual advances towards him, which he alleged provoked the attack. The prisoner's background included a history of alcohol and drug abuse, childhood sexual abuse, a diagnosis of depression, and a prescription for anti-psychotic medication. Additionally, the prisoner had prior convictions for violent acts against people and property.

The legal issues before the court involved determining the applicability of the principles set out in the case of Verdins, particularly in light of the prisoner's intoxicated state at the time of the offence. The court also had to consider whether the principles relating to provocation could be applied in this context. The court had to weigh the mitigating factors of the prisoner's background and state of intoxication against the severity of the violence and the nature of the murder.

The court held that the principles in Verdins were relevant but did not provide sufficient grounds for reducing the charge to manslaughter. The intoxication of the prisoner at the time of the offence was considered, but it was determined that it did not negate the intent required for a murder conviction. The court found that the provocation defence was not applicable as the deceased's alleged advances did not justify the extreme violence used by the prisoner. Ultimately, the court sentenced the prisoner to 18 years’ imprisonment with a minimum non-parole period of 14 years, reflecting the gravity of the crime and the prisoner's history of violence.

The court's final orders were that the prisoner be remanded into custody and that the sentence of 18 years with a non-parole period of 14 years be carried out. This decision underscored the court's view that the mitigating factors, while significant, did not diminish the culpability of the prisoner for the murder committed.

Orders