R v Plail - [2010] VSC 600

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1618 of 2009

THE QUEEN

NIGEL GORDON PLAIL

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2010
DATE OF SENTENCE:	3 December 2010
CASE MAY BE CITED AS:	R v Plail
MEDIUM NEUTRAL CITATION:	[2010] VSC 600

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CRIMINAL LAW – Manslaughter – Guilty plea – Circumstances of offending – Psychiatric history – Diagnosed schizoaffective disorder - Stable background and employment history Previous good character – Lack of insight into offending - Moderation of principles of general and specific deterrence – Limited prospects of rehabilitation - R v Verdins (2007) 16 VR 269 - R v Sebalj [2006] VSCA 106.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Lincoln	Office of Public Prosecutions
For the Accused	Mr S. Gardner	Paul Vale Criminal Lawyers

HIS HONOUR:

On 31 May 2010, you pleaded guilty to the manslaughter of Norman John Harris on 2 February 2009. Mr Harris died on that day as a result of various serious injuries he received at your hands late on Sunday night 25 January 2009.

It is a particularly unsatisfactory aspect of this case that almost nothing is known about the precise circumstances in which Mr Harris received his injuries. You claim to have little memory of the relevant events, and given your psychiatric deficits, that possibility cannot be excluded. The other potential witness, one Brendan O'Connor, at whose house the relevant offence occurred, said in his statement to police that he did not see any assault committed by you on the deceased. He swore to the truth of that statement at the committal and was cross‑examined about it.

I observed on the plea, and I repeat here, I think it is extremely unlikely that Mr O'Connor has told the whole truth about what he knows about these matters. You are not held to be responsible for O'Connor's position, but it does add to the difficulty in finding the facts in this case. O'Connor has psychiatric difficulties of his own.

On Sunday 25 January 2009, you, Norman Harris and Christopher Rook were drinking at the Bosh Bar at the Fountain Gate Shopping Centre. You were friends. You had gone there together at about lunchtime. In the afternoon you were joined by O'Connor who was also your friend. He did not know Mr Harris.

At about 4.30 p.m., Mr Harris was refused service at the hotel and O'Connor invited you all back to his house. You went with Mr Harris to his house at 11‑13 Fox Road, Narre Warren, arriving before O'Connor got back. You were drinking whiskey with Mr Harris when he got there.

At some point during the evening you assaulted Mr Harris. At 11.26 p.m., you rang 000 from the house. Among other things, you said that Mr Harris had drowned in the pool. You said, "He deserved it, he's a mother fucker, he's a dog". Although you did agree to start CPR, because, 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 Plail

Details

AGLC: [2010] VSC 600
Case: [2010] VSC 600
Decision Date: 3 December 2010

CaseChat Overview and Summary

In the matter of R v Plail, the defendant stood before the court to answer charges of manslaughter following a guilty plea. The circumstances of the offence involved the defendant inflicting fatal injuries upon a victim, which the defendant admitted to but claimed were due to a momentary lapse in judgment. The court was tasked with determining the appropriate penalty considering the defendant's psychiatric history, which included a diagnosis of schizoaffective disorder, alongside a stable background and employment history, as well as previous good character. However, the defendant exhibited a lack of insight into the gravity and consequences of the offence committed.

The legal issues central to the court's decision-making process included the appropriate application of the principles of general and specific deterrence in light of the defendant's psychiatric condition and the potential for rehabilitation. The court also needed to weigh the mitigating factors of the defendant's psychiatric history, stable background, employment history, and previous good character against the need for punishment and deterrence. Reference was made to precedents such as R v Verdins and R v Sebalj, which guide the court in balancing these considerations.

After considering the evidence and arguments presented, the court concluded that while the defendant's psychiatric condition and background warranted some moderation of the usual punitive measures, the gravity of the offence and the need for specific deterrence could not be entirely overlooked. The court determined that a custodial sentence was necessary, but it would be moderated to account for the defendant's limited prospects of rehabilitation and the mitigating factors of his psychiatric history and otherwise stable background. The court imposed a sentence that aimed to achieve the necessary balance between punishment, deterrence, and the defendant's personal circumstances.

Orders