R v Johnstone [2008] VSC 584

2 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.

3 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.

4 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.

5 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.

6 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.

7 In your Record of Interview you admitted causing the death of Phillip Higgins as described above. You said that you "lost it" when the deceased made homosexual advances to you. You said that he had been making such advances regularly.

8 I am also satisfied that you sought to minimise your role.

9 It is likely that the jury accepted that there was an approach of a homosexual kind which did set you off on the night of 22 September 2006. I think it is also likely that the jury accepted that you were affected by alcohol, but not to the extent that you did not form the requisite intent. I accept that you would not have behaved in the way that you did if you had been sober.

10 Your recollection of the events was reasonable, although patchy. The difficulty about your reaction to the homosexual advances by the deceased is that there was not anything particularly unusual about it. The behaviour can hardly be described as threatening to you. The deceased had a blood alcohol of between 0.32% and 0.37%, and you were physically much stronger than him.

11 You had known the deceased, who was on a disability pension, for a number of years. The deceased was 46 years old. You were 25 at the time of the murder and are now 27 years old.

12 The deceased was a generous man. At the time of his death, he was the tenant of 8 Downs Road, Seaford, and he was letting a room to you. In the period 2003 and 2004, you had also lived in a house with the deceased in the Dandenong West area. At that time, you were both very heavy drinkers.

13 During that period, the homosexual preferences of the deceased were well known. He was also well known for his sexually overt behaviour. There was evidence in the trial of an incident which had occurred more recently when Andrew Stud was also residing at Downs Road.

14 I will sentence you on the basis that you formed the intent to cause really serious injury and that you did so without premeditation and in response to some conduct of the deceased. That matter may help partly explain your conduct. It does not excuse it. It may have carried more weight in circumstances that the general behaviour of the deceased was unknown and unexpected.

15 I have two reports from Dr D. Sullivan, Psychiatrist, dated 5 May 2008 and 26 August 2008. I have a report from Mr J.E. Cummins, Psychologist, dated 19 November 2008

16 Your 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.

17 You 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. The evidence is not such that I can make any actual finding about it.

18 You 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.

19 Your 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.

20 You 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.

21 After 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.

22 More 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. Material relating to these episodes, apart from the fact of your admissions, is scant.

23 In 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.

24 On 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.

25 You 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.

26 On Friday 22 September 2006, you and the deceased had been drinking for a good part of the day and night, and you had smoked cannabis. The evidence on the trial was that you were showing significant signs of having been drinking but did not appear particularly drunk.

27 It is likely that the alcohol which you had consumed did increase the anger you felt towards the deceased. There are some unusual features about your conduct, including the use of the platypus statue, although it simply represented a weapon which was nearby (weighing eight kilograms), and the office chair. The injuries suffered by the deceased are all to the upper body and head. They are not calculated, but there is some evidence of control.

28 You 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.

29 It 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 I will impose on you.

30 You 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.

"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."

"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."

33 As I have already observed, you were sexually assaulted at a young age. You have not had much treatment for that except in the period leading up to this offence when you received some counselling at Bayside Community Health.

35 There are three matters in particular which must be dealt with in this sentence.

36 First, to what extent do the principles outlined in R v Verdins[1] apply to this case? Second, how is the question of the intention to be dealt with? Third, to what extent does the doctrine of provocation relate to this sentence?

37 In dealing with the first question, it is important to set out the ratio decidendi in R v Verdins:

"In the light of the preceding discussion, the R v Tsiaras principles can now be reformulated, as follows.

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.[2]

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."[3]

38 It is very hard to see how those principles can be applied in this case to your advantage. You may, by virtue of your adjustment disorder, find prison at least in the short term more onerous. I have taken that into account. I am not satisfied that, separate from your abuse of alcohol which had a tendency to trigger your anger, you were suffering from a separate diagnosable psychiatric illness. I find that your depression was a response to your substance abuse problems. You seem to be coping reasonably well in prison with a relatively small amount of medication. In particular, I do not see anything in your psychiatric condition which would reduce your moral culpability.

39 In relation to the second question, namely that of intent, how is alcohol to be regarded in formulating your sentence? There are two things to be said. You must have been quite aware of the effect that alcohol has on you. In those circumstances the Courts have said in the past that your drinking may be an aggravating factor in sentence.[4] In the present case, although that would seem open on one view, I am satisfied that the lack of premeditation and your reaction to the conduct of the deceased is such that it does not aggravate your offending. It does not, of course, reduce your moral culpability in the circumstances as I have already observed but I accept that you would not have offended in this way without having been affected by alcohol.

40 You appear to have an ongoing anger problem related to alcohol and drug abuse. In your most serious prior conviction in February 2001 you were convicted of charges relating to an incident at a service station where you assaulted the console operator and set fire to some petrol. The fire was extinguished before any serious damage could be caused. That indicates your capacity for aberrant behaviour.

41 As I have already observed, your prior convictions seem to be very much alcohol-related and you have said as much to Mr Cummins.

42 The third consideration is that of provocation, It falls to be considered in the following way: up until the end of 2005, provocation was a partial defence to murder, reducing murder to manslaughter. Parliament abolished the partial defence. The Law Reform Commission had recommended its abolition.

43 The Law Reform Commission accepted that provocation would or could be taken into account for purposes of sentencing. In the final recommendation(s), the following recommendation appears.

"50. In sentencing an offender for murder in circumstances where the accused might previously have been convicted of manslaughter on the grounds of provocation, judges should consider the full range of sentencing options."

44 Since that recommendation, the Sentencing Advisory Council has taken up the issue. A discussion paper has been published.[5]

45 The statutory reforms which changed the law of homicide by the abolition of provocation, among other matters, are silent on the question of the legal effect of conviction for murder where provocation would otherwise have been available.

46 The recommendation of the Law Reform Commission requires a sentencing judge to consider whether or not the accused might have been acquitted of murder on the law of provocation and thereby convicted of manslaughter. In your case, I am able to say that because of the matters raised by you in the Record of Interview, it is more than likely that provocation would have been left to the jury.

47 The trial, as a matter of necessity, was conducted without reference to provocation. I am unable to say what evidence might have been led either by the Crown or on your behalf if the question of provocation was open.

48 The test for the partial defence of provocation at common law can be shortly stated as follows:

"Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure."[6]

49 In that context I am unable to say whether or not such a "defence" would have succeeded.

50 The history between you and the deceased was a long one. The homosexuality of the deceased was well known. His tendency to behave "provocatively" was well known. Physically, you were much stronger and fitter than the deceased and he represented no physical threat to you.

51 The other matter which complicates the position for you is that historically the law was expressed so that the ordinary person as described in the test set out above was taken to be the ordinary, sober person, i.e. your level of intoxication could not be relevant to the "ordinary man test" for the partial defence of provocation.[7]

52 The question in any event is, whether your moral culpability in this case is reduced by the circumstances in which you acted.[8] Your behaviour seems to me to have been driven by a combination of anger and alcohol. It is likely that you did lose self-control as is indicated by the very severe bashing inflicted on the deceased. The conduct of the deceased may well have set you off in the way you describe, but I am not satisfied that it could have amounted to legal provocation or that is reduces your moral culpability.

53 The connection between the offence and the sexual abuse you suffered in the past bears consideration.

54 Dr Sullivan did not think that the connection was likely. He 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 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."

55 Although I would not go as far as Dr Sullivan on the question of intent, he does seem to have clearly addressed the question of the relevance of your childhood abuse.

56 What Dr Sullivan did not know was that you had raised the matter, probably for the first time in your life, when you attended Bayside Community Health Centre after your return from the Northern Territory. You do not appear to have raised with Mr Cummins any profound awareness of the abuse associated with your offending. Your mother has expressed the view that it might well have done so. The furthest I think it can be taken is that it is possible that you were more conscious of these matters now than you had been in the past and there is a contrast to be drawn between your dealings with the deceased in the past and your dealings with him when you returned from the Northern Territory. That, however, has never been spelled out by you in any way.

57 Anybody with a reasonable experience in matters such as this would readily accept that the question of sexual abuse might well have something to do with your childhood behaviour and being made a State Ward. That path has led many to drugs and alcohol. You, unfortunately, are one of them.

58 Your life has been substantially affected by abuse of alcohol and drugs from the time you turned 13. There had been some offer of support in the past, but even your counselling, which had been going at the time of this offending, had not diminished your drinking.

59 The death of Phillip Higgins is a direct result of your alcohol-fuelled anger. You appear to have some awareness of that. You take some responsibility for what you have done, but not as murder.

60 You do not yet appear to be able to accept that you intentionally killed a person who had been your friend. The fact that your intention might only have been to really seriously injure the deceased as against killing him is not a distinction which you appreciate. I accept that your actions after the killing were also borne out of anger and drunkenness, and although apparently callous, I do not treat these matters as aggravating factors. Your reaction the next morning, although not entirely frank, did indicate your true feelings of regret.

61 In that sense, I accept that you do regret what you have done and have a perception of what abuse of alcohol has done to you. You have not adjusted well to prison and I have already indicated that I have taken that into account.

62 I sentence you on the basis that you do have prospects of rehabilitation; how good those prospects are is a matter for you. I take into account your relatively young age in that regard and generally.

64 The victim impact statements of Mrs Higgins and Susan Kelly were read to the Court. Phillip Higgins' family is inconsolable and their collective loss is great. No sentence which I impose will restore to them what they have lost or diminish their grief.

65 The principles of just punishment and both specific and general deterrence are important in cases such as this.

66 You will be sentenced to imprisonment for 18 years and I fix a period of 14 years before you will be eligible for parole. If you are released in your minimum period, you will be given the assistance and support of the Parole Board for 4 years. Given your particular background it will be important that you avail yourself of that help and support.

67 I declare that 818 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.

[1] [2007] VSCA 102; (2007) 16 VR 269

[2] See, for example, Payne at 444, [43].

[3] R v Verdins; R v Buckley; R v Vo [2009] VSCA 102 [31] - [32].

[4] See for example R v Groom [1999] 2 VR 159.

[5] See Provocation in Sentencing, Stewart & Freiberg, Sentencing Advisory Council, February 2008.

[6] See Masciatonio v R [1995] HCA 67; (1994) 183 CLR 58, 66-67.

[7] See R v O'Neill [1982] VicRp 13; [1982] VR 150 and also R v Gojanovic No.2 [2007] VSC 153 [116 ff].

[8] See Provocation in Sentencing, op. cit.