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R v Nolan

R v Nolan

Case [2020] VSC 416 10 July 2020

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0260

THE QUEEN	Crown
v
ROREY NOLAN	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2020
DATE OF SENTENCE:	10 July 2020
CASE MAY BE CITED AS:	R v Nolan
MEDIUM NEUTRAL CITATION:	[2020] VSC 416

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Deceased died two months after receiving punch to the head - Plea of guilty – Moral culpability of accused reduced by significant psychological, psychiatric and cognitive difficulties – Increased importance of community protection – Poor prospects for rehabilitation – Principles in Bugmy v The Queen (2013) 249 CLR 57 and R v Verdins (2007) VR 269 applied – Sentence of 7 years with non-parole period of 4 years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Ms A Moran	Office of Public Prosecutions
For the Accused	Mr M Dempsey with Ms S Buckley	Balmer & Associates

HER HONOUR:

Rorey Nolan, you have pleaded guilty to the manslaughter of Jamie Boothey. Mr Boothey died on 27 December 2018 from complications of a blunt force head injury. That injury was acquired on 15 October 2018 when you punched him to the face, causing him to fall backwards and hit his head on the ground.

The maximum penalty for manslaughter is 20 years’ imprisonment.[1]
[1]Manslaughter is a Category 2 offence. I must impose a custodial sentence unless specified circumstances exist: Sentencing Act 1991 (‘Sentencing Act’), ss 3, 5(2H).

Summary of Offending

On Monday 15 October 2018 Mr Boothey – also known as JJ – was aged 51 years. He went, as was his custom three or four times a week, to the Dandenong Plaza to socialise and consume alcohol with a group of people. He arrived at about 11am and sat on a bench outside the entrance of the shopping centre, drinking beer with friends, until sometime between 2.00 and 3.00 pm. At that time another friend arrived and Mr Boothey socialised with her and her group, drinking Bourbon, before returning to the bench. At about 3.45 pm you approached the bench where Mr Boothey was seated next to two other men.

What happened next is captured by CCTV and other video footage[2] as well as described by witnesses.
[2]That footage was played as part of the Crown opening on the plea. I have watched that footage again. There is no sound to the CCTV footage. There is sound to the footage filmed on the mobile phone of a bystander.

You and Mr Boothey engaged in a heated verbal exchange. He was initially seated but then stood. You were very close to each other. You were both swearing. You called him a dog and threatened to hit him. At one point he put one hand on your shoulder and took your hand in his other hand. He then sat down. You walked off.

At about 3.48 pm…

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 Nolan

Details

AGLC: R v Nolan [2020] VSC 416
Case: [2020] VSC 416
Decision Date: 10 July 2020

CaseChat Overview and Summary

The case of R v Nolan involved the sentencing of the accused, who had pleaded guilty to manslaughter by an unlawful and dangerous act. The deceased had died two months after being punched in the head by the accused. The matter was heard and determined by the Supreme Court of Victoria. The key issue for the court was to determine the appropriate sentence for the accused, taking into account his moral culpability, psychological, psychiatric, and cognitive difficulties, as well as the principles outlined in Bugmy v The Queen (2013) 249 CLR 57 and R v Verdins (2007) VR 269.

The court recognised that the accused's moral culpability was reduced due to his significant psychological, psychiatric, and cognitive difficulties. However, the court also noted the increased importance of community protection and the poor prospects for rehabilitation. The court considered the principles in Bugmy v The Queen, which emphasise the need to tailor sentences to the individual offender and their circumstances, and in R v Verdins, which highlight the importance of proportionality and deterrence in sentencing. Taking all these factors into account, the court determined that an appropriate sentence for the accused was a term of imprisonment of 7 years, with a non-parole period of 4 years and six months.

In reaching this decision, the court carefully weighed the competing considerations of moral culpability, community protection, and the prospects for rehabilitation. The court recognised the need to impose a sentence that was proportionate to the offence and served to deter the accused and others from engaging in similar conduct. The court also considered the importance of providing the accused with an opportunity for rehabilitation, while ensuring that the safety and security of the community were adequately protected. Ultimately, the court was satisfied that the sentence of 7 years with a non-parole period of 4 years and six months achieved these objectives. The final orders of the court were that the accused be detained in custody and serve the sentence determined, with the non-parole period commencing from the date of his conviction.

Orders