R v Plail
[2010] VSC 600
•3 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1618 of 2009
| THE QUEEN |
| v |
| NIGEL GORDON PLAIL |
---
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 | |
---
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.
---
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 said, Mr Harris was your “brother at arms”, and you loved him, you still referred to him as a dog.
Within the next ten minutes a total of four ambulance officers attended at the scene and attempted to assist Mr Harris, who you said had been in the pool for about five minutes. The ambulance officers had noted extensive bruising on Mr Harris.
A short time later the police arrived. You told the police that Mr Harris had tried to drown himself in the pool and that Mr Harris had said, “I want to kill myself for my crimes against women”. When other police arrived they noticed blood on your nose and an injury to your arm, and you claimed to have had a bike accident. Mr Harris was partially revived and taken to the Dandenong Hospital in an unconscious state. He did not regain consciousness and died on 2 February 2009.
On examination of the house, crime scene investigators collected, among other things, a pair of Wave thongs. When Mr Harris was admitted to Dandenong Hospital, doctors noted that he had pattern bruising on his torso. One of the pattern bruises and the Wave thong have the same class characteristics. There was DNA and photographic evidence which connected the thongs to you.
On examination at the hospital, it was found that Mr Harris also had extensive internal injuries, including multiple rib fractures and a lacerated liver, as well as fractures to the face. His upper right incisor had been broken off. The broken off portion of the tooth had been recovered at the scene.
You were taken to the Narre Warren police station, where you were examined by a forensic medical officer who observed you to have a number of injuries on your body, some of which at least were old. At about 2.32 a.m., O'Connor advanced the version of events to which I have already referred. At about 8.00 a.m., in an informal conversation with the informant, you admitted to assaulting Mr Harris with a thong. In a formal interview, which commenced at 7.07 p.m., the only relevant comment which you made was, “One thing I will say, is there any bruises, or fucking bruising on my feet?”
On 3 February 2009, Professor David Ranson carried out an autopsy on Mr Harris's body. He concluded that the cause of death was multiple injuries and immersion leading to hypoxic brain injury and pneumonia. He described the following injuries: multiple rib fractures on both side of the body, liver laceration, adrenal haemorrhage and retroperitoneal haemorrhage around the right kidney, substantial bruising to the head, chest and abdomen, the patterned bruising and broken tooth already referred to, and a displaced fracture the right cheekbone. Perhaps more importantly, Professor Ranson did not observe any defensive injuries. You were subsequently charged with murder.
On admission to hospital, Mr Harris had been found to have a blood alcohol reading of .240. I only include that fact as an indication of the large amounts of alcohol consumed by those who were in the group on Sunday 25 January 2009.
It is more important to note that Mr Harris was a much loved family man who will be greatly missed by those who knew and loved him. It is all the more painful for his family in circumstances where this brutal killing remains largely unexplained, and because he was a relatively young man, only 52. There can be no satisfactory outcome for them in these proceedings.
I received victim‑impact statements from Julie Harris, Mr Harris' sister; Peter Harris his brother; Lindy Mazur, on her own behalf, and on behalf of her husband, Eric, who were close friends of Mr Harris; Mr Edmond Harris, Mr Harris's brother; Julie, Roy, Kali and Sharni Powell; neighbours and family friends of the Harris family. Ankica Grover on her own behalf and on behalf of her husband Dean, close friends; Caitlyn Harris, Mr Harris' daughter; and Sue Harris, his wife.
Not all of the material tendered was strictly admissible, but I have read it all and taken into account that which is relevant, which is the vast majority of the material.
I also received a number of psychological reports regarding the effects on the Harris family, none of which would surprise any fair reader.
Mrs Harris read her statement to the Court. I was moved by her reading of it, as I am moved by all the material. What the victim‑impact material reminds me and other judges of, is the fact that the person who has died was a real person with a life, with real family and real friends. Such reminders are important.
The manner in which this case has proceeded is of concern, it has created difficulties and caused pain. That is, the number of occasions on which this case has been adjourned and not proceeded. I regret that that is so. It is an unfortunate consequence of the way that our system operates. I am also conscious that any sentence I impose will look inadequate to those who have suffered. I can only impose a sentence in accordance with the law, and doing my best.
Nigel Plail, in relation to the plea made on your behalf, I received the following material: an outline of submissions from Mr Gardner who appeared on your behalf. A psychiatric report from Dr Danny Sullivan dated 20 October 2010. A character reference from Jeffery George Hayward and from Anthony David Christensen, and a resume of your educational employment and history with a number of references.
Mr Hayward also gave evidence on the plea. He had known you for 26 years, having met you at high school, and you belonged to the same tennis club. He had a close association with you up until 1996 when he moved away. There was nothing unusual about your behaviour and no violent behaviour observed by him during that period. Between 1996 and 2005, he saw you only intermittently, but you resumed a reasonably close friendship up to 2006 when he moved away again. He generally regarded you as a good, hard‑working friend. In his evidence had he said that he was present when were you involved in a siege situation at your parents' home where you were living in December 2008. He described that incident as non‑violent. He knew that you were taken by the police to a psychiatric unit at the Berwick Hospital where he visited you in late December and early January.
From a sentencing perspective, the most important feature about you is your psychiatric history. You were first admitted Dandenong Hospital in the year 2000 having, as you put it to Dr Sullivan, been diagnosed with bipolar disorder and certified. You were also hospitalised for a period of about a month in Sydney and had further admissions in Victoria between 2001 and 2006. You were admitted to the Berwick Hospital as outlined between 30 December 2008 and 16 January 2009. You had been on medication at various times over the years, but were you not particularly compliant.
Dr Sullivan reported the following significant matters:
“I will begin with the admission immediately prior to these events. The record noted an admission from 30 December 2008 to 16 January 2009. He had been brought to hospital as an involuntary patient under the Mental Health Act 1986 following a siege reported to have involved 30 police and his parents held hostage. His parents had contacted the Crisis Assessment Treatment (CAT) Team because he had not taken medication and was aggressive. Preceding this, he was described as experiencing paranoid delusions, ideas of reference, auditory hallucinations, and was suspected of using alcohol and amphetamines. He was initially managed in seclusion and was fixated on who had called the CAT Team. The consultant described his poor behaviour, noting he was threatening towards his parent and others had behaved disgracefully. He added that Mr Plail had a likely narcissistic personality disorder. Mr Plail left hospital on 16 January, and I interpolate, the closeness in time of that release and these events is of some significance in this case.”
To continue:
“He was arrested for the siege proceedings preceding the most recent admission. He was reported to have clan associations, persecutory ideation, marked anger, and described that he had a licence to kill. His parents were noted to be tearful and distressed. He received his depot on 23 January 2009 and was irritable with derailment of thoughts, persecutory ideas that a motorcycle gang was after him and was threatening in demeanour stating to staff, ‘Don't fuck with me’. The alleged offence occurred 27 January 2009” (sic, in fact, 25 January 2009). “Dr Yonchev later compiled a summary document detailed in Mr Plail's treatment, numerous past diagnosis and medications were noted. The correctional medical record noted that Mr Plail was first received in custody on 28 January 2009. He was noted to be elevated in mood, laughing loudly, and pressured in speech. He described that he was a 'feng shui master'. He was difficult to interpret and tangential. He was described as guarded about his mental state. He acknowledged drinking a six pack of beer daily, smoking cannabis and taking ecstasy monthly, but denied other substance abuse.
Mr Plail was admitted the Accused Assessment Unit (AAU) but was rapidly transferred to the observation unit and placed in a Muirhead cell. He was described as depressed, thought disordered, suicidal with rapidly changing mood. The initial diagnosis was of manic psychosis and he was commenced on high doses of oral diazepam (Valium, a benzodiazepine), and his dose of zuclopenthixol depot was increased. He continued to exhibit elevated mood, flight of ideas and irritability. He was noted to be grandiose, uttered veiled threats and was considered to volatile to maintain in the AAU.
Over the next month his mood settled but he remained limited in insight and reluctant to take treatment. He was switched from diazepam (Valium, a benzodiazepine) to lorazepam, an alternative benzodiazepine. He was moved to the AAU and by mid‑March 2009 was considered manageable in a mainstream unit with ongoing medication and out‑patient follow‑up in prison.
Mr Plail was moved to the Metropolitan Remand Centre in April 2009. By August 2009 he was requesting to cease oral olanzapine, and in November 2009 requested to cease depot medication too. These requests were denied. He remained under out‑patient management.”
Under the heading “opinion and recommendations”, Dr Sullivan said:
“Mr Plail is a 38 year old man charged with manslaughter. His background was relatively unremarkable. He found the latter part of secondary school more difficult and left to complete an apprenticeship. In adult life Mr Plail worked in this field, despite the development of a mental illness in the last ten years, and has also managed relationships. He has a clear diagnosis of schizoaffective disorder, the differential diagnosis is of bipolar affective disorder. While this is to some extent an academic distinction, he has clear evidence of elevated mood and mania and he has also when unwell exhibited formal thought disorder and persecutory ideation (which is incongruent with his mood at the time). Thus schizoaffective disorder is the most appropriate diagnosis.
Mr Plail has required multiple hospital admissions and in most cases appears to have been aggressive, disordered and irritable prior to admission. His subsequent compliance with treatment has been poor and this is understandable when Pr Plail describes him limited understanding or agreement that he has a mental illness. There is a history of polysubstance abuse including alcohol cannabis and ecstasy. His use of energy drinks also constitutes caffeine abuse. Mr Plail is minimising about this. Even of his history of reported use is taken at face value, this level of use is likely to have been a significant destabilising influence on his mental illness. There is no apparent cognitive impairment. He does not appear to have a personality disorder, although his behaviour when mentally ill is likely to appear cross‑sectionally to have narcissistic, paranoid and anti‑social elements. However, this in my opinion reflects his behaviour when unwell due to mental illness rather than underlying personality traits.
He exhibits partial insight into his diagnosis and the need for ongoing medication. However, Mr Plail still has limited understanding of the effects of his behaviour when mentally ill, and in particular does not appreciate how others at the time perceive him as belligerent and resistant to therapeutic intervention. For any period of sentence served in community, such parole, he is likely to require close monitoring and demonstrated compliance with medication. There would be a very low threshold for admission to hospital. He would require long‑term management by an area mental health service. In addition he would benefit from further therapeutic interventions such as the Violence Intervention Program. He is minimising of the effects of substance use and I would also recommended a clear focus on drug and alcohol counselling and on close monitoring of substance use in the community in the future.
The circumstances of the alleged offence remain somewhat unclear. However at the time Mr Plail was likely to have been hypomanic, evident in irritability, disinhibition aggression. I consider it very likely that his judgment was significantly impaired and that he is consequently not able to think calmly and clearly. Given the existence friendship with the deceased man, the intent of the alleged offence is obscured by the existence of mental illness at the time, and I would I regard his hypomanic state as causally associated with the alleged offence.
While Mr Plail will need to continue his medication whist in custody, he has responded well to his treatment and his mental state is settled. I do not believe his incarceration will be more burdensome due to his mental disorder, and note that he is located on a mainstream unit able to engage in industry and programs.
Forensicare assessment will be warranted in the six months prior to his earliest release date.”
There are a number matters relevant to your personal background put on the plea, and they are these: you were born in June 1972 and raised on a hobby farm in Narre Warren. You were the youngest of three boys. Your mother worked as a hairdresser and your father was a carpenter. Your early life indeed appears unremarkable and seems on the material tendered on your plea as a stable and loving family environment. When you were three years old, you were involved in a lawn mower accident which involved a significant period of hospitalisation with the resultant loss of some toes.
On your plea, counsel on your behalf submitted you were an active child, heavily focused on sport. Neither you nor any member of your family have, prior to these events, come to the attention of the police, apart from those matters involving your mental illness. You completed Year 10 at Berwick High School before beginning a plumbing apprenticeship in 1989.
In 1991, your then employer found himself unable to provide on‑going work, yet you were sufficiently motivated to accept employment elsewhere and successfully completed you apprenticeship in 1993. During 1994, you worked for your father installing sliding partition walls before returning to work as a plumber for the next three years. You then took up woodwork with an artist sculpting red gum dining tables for a period of two years.
At the age of 26, you returned once again to plumbing and remained in that trade for the next 11 years. During that time, you worked for various employers, at times installing domestic water tanks and other times on high‑rise buildings. It was on one such worksite that you met and befriended Mr Harris, who you saw fairly regularly from then on.
In August 2008, you suffered a serious injury to your arm and ceased working. That date may be significant as it seems from that point onwards your mental health noticeably deteriorated. In fact, a few days prior to your arrest, as I have observed, you had been released from the hospital where you had been as an involuntary patient.
You have the support of your partner, Lynne McGregor, who is the mother of your youngest child, Zac, who is not yet three years old. You have also have a son from a previous relationship, Jackson, who is five years old. Ms McGregor was present in Court during your plea to offer her support and has visited you in company with Zac during your time in custody. You have had some phone contact with Jackson also during that time. It would appear that Ms McGregor is aware of your recent mental health issues.
Mr Gardner submitted on the plea that towards end of 2008 issues had arisen in your relationship with Ms McGregor. That was likely due to the deterioration of your mental health. In fact, upon your release from your stay as an involuntary patient, you did not reside with Ms McGregor, but instead stayed with Brendan O'Connor at his home in Narre Warren, the address at which these events occurred.
As I have noted, you have been for formally diagnosed as suffering from schizoaffective disorder. You have spent your time in custody reasonably productively working in the timber workshop building cubby houses. It would appear in relation to your mental health treatment you are currently being managed effectively to the point where you are now treated as part of the mainstream prison population. Your parents, during their visits to you whilst there, have described the improvement in your overall mental health an demeanour as obvious and dramatic.
The law governing the question of how for the purpose of sentencing I am to deal with the question of mental impairment (mental illness) were set out by the Court of Appeal in R v. Verdins.[1] At p.276 the Court said:
“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 is to be served. 3. Whether general deterrence should be moderated or eliminated, 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. 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 of normal health. 6. Where there is a serious risk of imprisonment having significant affect upon the offender's mental health, this will be a factor tending to mitigate punishment.”
[1][2007] 16 VR 269
I should observe it is clear from what is reported by Dr Sullivan that neither 5 or 6 are relevant in your case.
Your position though, is complicated because of your continued insistence on consuming alcohol and other prohibited substances, although for present purposes it is the consumption of alcohol that was relevant.
As was noted by Vincent JA in the Court of Appeal in R v. Sebalj:[2]
“Nevertheless, as Mr Gamble submitted, it is important to bear in mind that where the psychotic state of an applicant was a consequence of ingestion of drugs or other conduct deliberately chosen by him, the extent to which it can be asserted that his level of moral culpability is reduced may become very much problematic.”
[2][2006] VSCA 106.
The principles set out in Verdins do on the basis of what has been said by Dr Sullivan apply in your case, particularly having regard to your most recent admission to hospital prior to this offending. It is very hard to assess to what extent they should be applied, but I am satisfied that your moral culpability is reduced to a degree and that the principles of both general and specific deterrence are to be moderated.
I make it clear that were it not for your psychiatric condition I would have imposed a more severe sentence than that which I am about to impose.
There is also an additional complication, in that you are not prepared to accept that your mental illness, and I suspect that your drinking problems, were much more significant than you have conceded, all of which adds to the complication of the process and purpose of sentencing.
This case has proceeded on the basis that the prosecution accepts that it cannot prove beyond reasonable doubt that at the time you killed Mr Harris you intended to kill him or cause him really serious injury. That takes into the account the absence of any real evidence to demonstrate how Mr Harris came to suffer his injuries.
I should say this, however, I am satisfied that Mr Harris did nothing which could have caused his death and, as I observed at the commencement of these remarks, there is an unreality about the task which I now undertake.
The maximum term of imprisonment for this offence is 20 years. I have taken into account all the matters put on your behalf, but for the reasons I have set out, particularly in relation to the operation of your mental illness, your previous good character does not loom as large as a sentencing consideration as it might otherwise have done.
I have taken into account your plea of guilty. It should be noted, however, that the weight to be given, both to your mental illness and your plea, has to be seen in the context that you might otherwise have been tried for murder.
I am obliged as a matter of law give weight to both the considerations of your plea and of your mental illness, and I have done so.
You have little or no insight into this offending and only limited insight into your condition. The extremely brutal attack remains unexplained, except to say that you were the perpetrator of it. I have already set out the passage from Dr Sullivan which would lead me to conclude that your prospects of rehabilitation are, at the best, limited.
In relation to the question of remorse, I am satisfied that you do regret and are remorseful about the death of Mr Harris. I am satisfied that, notwithstanding the very strange things you said about him, that at the point that you were involved in removing him from the pool you did your best to try and do something about it, but it was by then, obviously much too late.
If you could stand up, please.
I sentence you to be imprisoned for a period of 8 years.
I fix a non‑parole period of 6 years before you are eligible for parole. I state that I would have sentenced you to be imprisoned for ten years with a non‑parole period of 7½ years if you had not pleaded guilty.
I declare 676 days pre‑sentence detention as having already been served under this sentence.
I direct that the statement as to the sentence I would have imposed and the declaration of pre‑sentence detention be entered in the record of the Court.
0
3
0