R v Nicholson
[2012] VSC 263
•15 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2011 0048
| THE QUEEN |
| v |
| NIGEL WILLOUGHBY NICHOLSON |
---
JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2012 and 18 May 2012 | |
DATE OF SENTENCE: | 15 June 2012 | |
CASE MAY BE CITED AS: | R v Nicholson | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 263 | |
---
Catchwords: Plea of Guilty – Manslaughter – Walking into path of motorcycle – Delay – Remorse – TES: 5 years’ imprisonment with a non parole period of 3 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J. McArdle QC | Office of Public Prosecutions |
| For the Accused | Mr. G. Meredith | Victoria Legal Aid |
HER HONOUR:
Nigel Willoughby Nicholson, you have pleaded guilty to one count of manslaughter. No prior convictions are alleged against you.
On 22 December 2008, shortly before 5.00am, Tomislav, known as Tom, Milkovic was riding his Yamaha motorcycle home from work. He was travelling south along Mickleham Road, Tullamarine when you intentionally moved into his path, causing Mr Milkovic to lose control of his motorcycle and collide with a street sign on the median strip. Mr Milkovic was taken to the Royal Melbourne Hospital, where he died later that morning in the operating theatre. The cause of the death as determined by the pathologist, Dr Melissa Baker, was damage to the internal organs and blood loss; being the complications of injuries sustained in a motorcycle accident.
Mr Milkovic was 29 years old. He worked as an engineer at Jetstar at Tullmarine Airport. He had been working nightshift and was only minutes from home. At the time, he was travelling at approximately 40 kilometres per hour and, at the time of impact with the road sign, it was assessed that he was travelling at 20 kilometres per hour. An examination of the road surface indicated scuff marks consistent with braking and a later examination of his motorcycle determined that it was roadworthy. He did not contribute to the impact in any way.
Victim Impact Statements made on behalf of Mr Milkovic’s mother, Drajica, his father, Milan, his sister, Sanja, and his girlfriend, Tania Robinson, were tendered in evidence. They each speak poignantly of their pain, despair, grief and suffering at the untimely loss of their only son, brother and partner. No sentence this Court can impose can restore to them their loved one, nor ameliorate their grief in any way.
The circumstances leading up to this offence were as follows. Between 2001 and 2006, you were in a relationship with a girl called Trinh Le. The relationship with Trinh Le broke down, although you remained in contact with each other and, indeed, you formed a relationship with another woman. However, it appears that on your 28th birthday, 13 July 2007, the relationship with Trinh Le rekindled. You resumed cohabitation and lived together with a friend in a unit at Mickleham Road, Tullamarine. Your relationship again began to deteriorate and this coincided with your drinking heavily. Ultimately, you lost your job because you were off sick and did not return your employer’s calls. It was submitted that you had told your employer that you were sick and needed treatment, but that your absences were partly motivated by your concern for Trinh Le, who you thought was depressed and using too much cannabis. So it was in this context that the two of you argued on Friday 19 December and Trinh moved out of the unit in Mickleham Road. It was said that you were devastated and spent the weekend drinking and you made a number of calls to Trinh which were not returned.
It is in these circumstances that around 3.00am on 22 December, Trinh Le retrieved voicemail messages from you threatening to kill yourself, and such were her concerns that she drove to your flat in Mickleham Road. You were in a highly distressed state. You were drunk and abusive towards her, and threatening to harm yourself. She spoke with you in her car for some five or ten minutes and then you got out and walked home. As she was driving home, you rang her, you sounded calm and asked her to return so that you could continue to talk about the end of your relationship. She drove back to your unit and parked in the service lane. She rang you and you came out, highly intoxicated, again abusive and agitated, and threatening to kill yourself. You were carrying a bottle thought to contain alcohol, and you were pushing or stumbling over wheelie bins and you said words to the effect, “You are going to feel guilty because I’m going to kill myself”, and it was in these circumstances that you ran across the service lane and onto the southbound lane of Mickleham Road, intentionally moving into the path of Mr Milkovic. The force of the impact lifted you up off the ground and caused the bottle to smash. The impact also caused Mr Milkovic to sprawl backwards on his motorcycle and then travel some 62 metres before colliding with the road sign in the median strip, causing him to come off his motorcycle and land about a metre south of the sign.
Your behaviour prior to the collision with Mr Milkovic, and afterwards, was completely self-indulgent. Indeed, your counsel, Mr Meredith described you as fraught and at the end of your tether. You continued to be agitated and aggressive. You were also taken to the Royal Melbourne Hospital, complaining of a dislocated left shoulder, and you were diagnosed with a swollen, tender left elbow with a decreased range of motion. Dr Baker could not determine any connection between the injuries you sustained and the injuries suffered by Mr Milkovic. A subsequent analysis of your blood revealed a blood alcohol reading in the range of .21% to .24%.
On 5 February 2009, you were interviewed by the police and made a no comment record of interview which is, of course, your right. You where charged on summons on 27 July 2010, a committal was held on 4 and 5 April 2011, and you offered to plead guilty to this offence on 7 November 2011. Subsequently, on 16 November 2011, you were arraigned on a count of manslaughter and pleaded guilty.
I turn now to matters personal to you. You are 32 years old. You are one of three children. You lived in Strathmore and went to the local high school until Year 7, when your parents moved to Shanghai for your father’s work. This necessitated your boarding at Ballarat Grammar, where you completed your VCE, excelling in Fine Arts. You attended a private college in Brighton, studying photography and design, and then completed a three year course in furniture design with RMIT. You then obtained a Diploma in Visual Arts at RMIT and then commenced a course in event management with William Angliss College, which you did not complete.
Whilst studying part-time, you also worked at a number of jobs, which included a paper round, working in a warehouse and monitoring the operation of the air conditioning system at the Melbourne Airport. Your great passion, however, was said to be fine art and, indeed, an example of your work has been tendered on the plea as Exhibit 6 and, indeed, since the offence, you have held an exhibition of your art work.
In the immediate aftermath of the offence, you moved back to live with your parents and you have since become engaged to another young woman, the relationship with Trinh Le having come to an end. You also obtained employment on your own initiative with the Carlton United Breweries where your father is employed, but you left that job when it became known to you that a co-worker with whom you had been getting a lift to work, was the cousin of Mr Milkovic. You told that man, when the topic of Mr Milkovic’s death was raised, that you were the “drunk that caused it”, and Mr Meredith has relied upon this admission as an acknowledgment of your remorse. Since leaving the Carlton and United Breweries, you have established a business as a tree lopper, being work that you had previously engaged in, and you now see yourself as having a future in this regard.
A testimonial written by your father, Brett Nicholson, was tendered in evidence as Exhibit 3. In it, he confirms the changes to your lifestyle since this offence and describes you as displaying and remaining remorseful for your actions.
A report by psychologist, Pamela Matthews, was also tendered in evidence as Exhibit 1. She has assessed your overall IQ of 82 falling within the low/average range. You reported to her a history of daily alcohol and marijuana consumption leading up to the offence but which has since abated. You have since attended Alcoholics Anonymous meetings, but were not prepared to take that further. Ms Matthews also reported that you gave a history which suggested you were depressed at the time of the offence and that you are significantly depressed in response to these legal matters, but that you had expressed genuine empathy and remorse towards the victim’s family and that you had tried to make something better of your life.
Ms Matthews had been concerned that your presentation and history was suggestive of an acquired brain injury of the frontal type. She opined as follows:
“Psychometric assessment also indicates the distinct possibility of an acquired brain injury of frontal type with deficits in verbal and non-verbal planning, construction and organisation and working memory and in visual reasoning. Mr Nicholson’s emotional lability and loquaciousness, disorganised recount of his history is also consistent with this type of presentation, as is his depression, the seeming lack of impulse control that led to the matters before the Court, his limited insight into the matters before the Court and his continued denials despite a body of evidence otherwise.”
To that end, in order to assess the possibility of you having an acquired brain injury, you were seen by neuropsychologist, Ms Jane Lofthouse. Her report was tendered in evidence as Exhibit 2. In it, she confirmed that your IQ falls within the low/average range and, in testing your frontal lobe function, she concluded:
“Executive function allows for insight into one’s position and in behavioural and emotional control. Mr Nicholson appears to have an understanding of his behaviour and the serious nature of his charges but consistent with executive dysfunction he has some difficulty in accepting responsibility for his behaviour and it appears that he experiences some difficulty in placing limits on his drug and alcohol use.”
She concluded that your profile suggested you suffered from an acquired brain injury, you having given a history of a number of falls and she being of the opinion that your alcohol and drug use had a significant contributing effect. Screening tests indicated, she opined, a severe level of depression and a high level of anxiety.
Dr Lester Walton, psychiatrist, gave evidence on the plea and his report, dated 17 May 2012, was also tendered in evidence as Exhibit 5. You also gave Dr Walton a history of smoking marijuana and drinking alcohol to excess, although you were adamant that you had not used marijuana on this night. You described the emotional turmoil which preceded this offence as a result of your relationship with Ms Le yet again coming to an end. But you described yourself as being angry and not suicidal on the night. You acknowledged, in Dr Walton’s words, that “lurching onto a roadway in a state of drunkenness does amount to meaningful negligence”, but that you are of the view that the collision is properly to be regarded as an accident. Nonetheless, you have expressed to Dr Walton your remorse.
Dr Walton assessed your intelligence as within the normal range, albeit somewhat below average, and there being no evidence of any gross cognitive deficit. In his report, he acknowledged that at times, on your report, you would validly attract a diagnosis of a depressive disorder, but in evidence he stated that you suffered a depressed mood. It appears that in mid 2011 you were prescribed a combination of Avanza, Valium and Pristique by your general practitioner and you have participated in a couple of counselling sessions with a psychologist. Since being held on remand, you have been maintained on the antidepressant, Pristique, only.
Dr Walton opined: “The poor judgment which Mr Nicholson exhibited and which was a central contribution to his offending was due to a combination of factors; his state of inebriation, the possible aggravating effects upon intoxication of underlying brain injury, depressed mood and his psychological immaturity”.
In evidence, Dr Walton described you as an immature man. He stated that your depressed mood and psychological immaturity leads towards the minor end of the spectrum with respect to the application of the principles of Verdins. It appears to impact principally upon the effect of your depressed mood upon your incarceration. While in custody, you have completed a number of courses, including those relating to managing substance abuse, and have been a regular participant in Alcoholics Anonymous. You have also completed courses relating to occupational health and safety, and information technology. You have reported to Dr Walton that you have kept busy and that it makes the day go faster. It seems unlikely that your depressed mood has had the effect of making imprisonment more burdensome for you and, accordingly, I am not satisfied that any discount on the basis of the application of Verdins is here appropriate.
The maximum penalty for the crime of manslaughter is 20 years’ imprisonment. The form of manslaughter to which you have pleaded guilty is causing death by criminal negligence. That is, your actions in intentionally moving into the path of Mr Milkovic’s motorcycle have fallen so far short of the standard of care a reasonable person would have exercised and to have involved such a high risk of death or really serious injury that it is deserving of criminal punishment. It was not your intention to kill or seriously injure Mr Milkovic. Indeed, if it were, you would have been charged with murder. Rather, it appears that your purpose in running into the path of the motorcycle was to harm yourself.
Mr Meredith submitted that the objective circumstances of your offending, that is, that it was of short duration and spontaneous in nature, were inherently less dangerous than other forms of criminal negligent manslaughter, and therefore your offending, he submitted, was inherently less culpable and should be regarded as falling towards the lower end of examples of this type of offence.
Mr Meredith submitted that by placing yourself in the path of Mr Milkovic, you were effectively creating a hazard, and it is in that sense that your actions were criminally negligent. It is not contended by the Crown that you lunged at Mr Milkovic, but you did see him on the roadway and, in your drunken state, you intentionally walked into his path, causing him to lose his position on the motorcycle and effective control of it, and eventually collide with the road sign.
Mr Meredith submitted that your actions were spontaneous and short-lived, which indeed may be so, but, in an act of drunken stupidity, you ran onto the road deliberately, and of course ultimately this has led to the untimely loss of life of a young man.
Mr Meredith submitted that your plea of guilty has facilitated the course of justice and is a public acknowledgment and acceptance by you of the wrongfulness of your conduct, which I accept. He also submitted that it is indicative of your remorse, which I will come to later.
In sentencing you, I take into account and give you a discount for your plea of guilty. I do not, however, regard this as an early plea. Although issues were no doubt clarified at the committal held in April 2011, a plea offer was not made until November 2011, when it appears to have been accepted very promptly. I take into account that by reason of your plea you have saved the community the cost of a trial and the witnesses the ordeal of one, and that by reason of your plea, you have facilitated the course of justice. I accept that you are, to a degree, remorseful and have expressed that remorse to others. But it does appear that you are somewhat self-pitying and egocentric, and it is of concern that you regard yourself, as expressed to Dr Walton, “betrayed by the judicial law system and the police”. Although Dr Walton attributed this to your immaturity, it does suggest you lack insight and perhaps complete remorse. It also impacts upon your prospects for rehabilitation, which I would assess as reasonable, but only if you address, in particular, your alcohol abuse.
In sentencing you, I take into account also the delay in this matter which, until February of this year, is not attributable to you, but on 29 February, the Court was advised that the matter could not proceed as a plea listed for 2 March because your solicitor intended to withdraw, due to funds not being available and no arrangements having been made for Legal Aid. I accept, however, that you have had this matter hanging over your head since December 2008 and that you have used this time to re-order your life. I accept that you are now in a more stable relationship, that your fiancée is supportive of you, that you have started a small business and that you have commenced to address your issue with alcohol. I take all of these matters into account in your favour.
Mr McArdle QC, who appeared on behalf of the Crown, submitted that sentences for manslaughter by criminal negligence are generally more lenient than other instances of manslaughter, although, he submitted, this is not an inflexible rule. Mr McArdle QC submitted a head sentence in the range of five to seven years is here appropriate, seeking to draw an analogy between your actions and the offence of culpable driving.
Mr Meredith disputed the range, submitting that it did not address the objective seriousness of the offending and the matters in mitigation, and submitted any comparison with sentences imposed in respect of culpable driving was fraught with danger.
As to the submission that it may be appropriate to have regard to sentences imposed in death by culpable driving cases, certainly the degree of criminal negligence here alleged is the same as that required for culpable driving, but in my view, the inherent danger involved in the use of a motor vehicle on the roadway is greater than that posed by a person running onto the road. Although I acknowledge that the authorities make clear that manslaughter by negligence generally involves less culpability than other forms of manslaughter, nonetheless in the circumstances here, you saw the motorcyclist, you intended to come into contact with him, and you deliberately ran out onto the road, into his path. This places your conduct at the higher end of criminal negligence and the nature and gravity of your offending is not diminished by its spontaneity, momentary nature, your drunken judgment or fraught emotional state.
In sentencing you, I take into account all matters which go in your favour, as previously stated, and also take into account that no prior convictions are alleged against you, that at the age of 32, you will be sentenced to a significant term of imprisonment and will be experiencing gaol for the first time. I take into account, also, that you have a good work history and that you enjoy the support of your family and fiancée.
Against these matters stand the nature and gravity of the offence here committed and the need to pass a sentence which will serve to punish you and act in denunciation of your conduct, and also give due weight to considerations of general deterrence so that like-minded people will know that, should they act as you have done here, they can expect condign punishment. I accept, though, that in the circumstances of this case, specific deterrence may be given less weight than would otherwise be the case.
Accordingly, for the crime of manslaughter, you are convicted and sentenced to 5 years imprisonment, and I order that you serve a non-parole period of 3 years before becoming eligible for parole and I declare that you have already served by way of pre-sentence detention a period of 65 days. I declare pursuant to s 6AAA of the Sentencing Act that, were it not for your plea of guilty, I would have sentenced you to a sentence in the vicinity of 7 years with a non-parole period of 5 years.
0
0
0