R v Johnstone [2008] VSC 584

R v Johnstone [2008] VSC 584 - VSC 2008 case summary — Zoe

[35]

"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."

[36]

"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."

[61]

"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 by these events and think it unlikely that they were germane to the alleged events. The materials suggest 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.

Alcohol and cannabis intoxication both individually and together are highly like to impair accurate recall. The effect of substances which are brain depressants is to reduce awareness of external stimuli and the level of alcohol use described on the night of the alleged offence is consistent with this. Mr Johnstone is reported to have gone to bed after assaulting the victim and not have reported the events to anyone until later. This accords with significant intoxication, and I would regard his own memory of the events as somewhat unreliable, particularly in relation to specific detail, due to his intoxicated state on the night.

The materials, the statements of witnesses, and Mr Johnstone's account of the offence, do not in my opinion support that he clearly intended to kill Mr Higgins. Witness statements indicate a prior relationship between the two which was variously described as possibly sexual, good or ambivalent. The description of interactions between the two beforehand does not indicate any marked acrimony despite their mutual intoxication. Mr Johnstone is reported to have gone to bed after the alleged event and not to have responded in a fashion suggesting that he had concerns about Mr Higgins' welfare. This is likely consistent both with his intoxication and with his lack of awareness that Mr Higgins' physical state was dire. The description was of him drunkenly rebuffing the drunken advances of Mr Higgins, and the circumstances of the offence, particularly Mr Johnstone's intoxication, are not consistent with formation of a clear intent to do anything but be rid of a nuisance, at a very basic level."

At a glance

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Judgment (81 paragraphs)

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Cases Cited (2)