R v Nolan [2006] VSC 85 (8 March 2006)

Last Updated: 10 March 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1536 of 2004

THE QUEEN
v
THOMAS ALBERT NOLAN

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2006
DATE OF SENTENCE:	8 March 2006
CASE MAY BE CITED AS:	R v Nolan
MEDIUM NEUTRAL CITATION:	[2006] VSC 85

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy
For the Accused	Dr G.J. Lyon, SC

HER HONOUR:

1 Thomas Albert Nolan, you have pleaded guilty to one count of manslaughter of Jonathan James Gravina on 16 January 2004. The circumstances of the offence have been outlined by the prosecutor in his opening, and briefly they are that on the date mentioned you were drinking with the deceased man. You were aged 40 at the time and he was aged 25. You would be described as friends at that stage. You knew each other because the deceased man's mother who had died earlier, had worked for some time with your partner and you had come to know both the deceased and his brother, Danny, through her. You have no history of violence between you.

2 Early on that day both you and the deceased had been drinking alcohol and had smoked some cannabis although this occurred separately. At some stage after dinner the deceased came around to visit you. About 15 minutes later you, the deceased and another man left and went to the First and Last hotel in Sydney Road with the intention of purchasing some drugs that you were going to share.

3 It would appear that you consumed some more alcohol and purchased the drugs, and left the hotel in the company of two other men and headed back to the home that the deceased shared with his brother, which was sometime after midnight. Both of your homes were near each other. One of the two men left and went to his own home. You described the deceased as being very aggressive all the way home, in your record of interview. That appears to be supported by some of the other material in the depositions.

4 On arrival back at the home of the deceased there was a number of persons in the lounge room of the premises, and you, the deceased and the third man, Mr O'Brien, went into the kitchen with the intention of using the drugs that had been purchased, which were amphetamine. The deceased went into his room and got a syringe, then made up the amphetamine into one lot. He then drew up the whole amount of the amphetamine into the syringe and prepared to use it. This caused a dispute to arise as to the fact that this was to be shared between you and the deceased. The deceased then squirted half of the amount back into the spoon that he had used to dissolve the amphetamine, and then proceeded to inject himself with the balance of the Speed.

5 During that time, or around that time at least, there was an argument about the amount of $50 that you owed to the deceased man. The deceased man then flicked the remaining contents of the spoon onto the floor, preventing you from having any of the amphetamine that had been purchased. Shortly after this you began shouting at each other and seemed to prepare physically to fight each other with removing clothes. The deceased then picked up a dining chair and lifted it above his head. When he did that, you picked up a serrated-edged large knife. The deceased put down the chair and charged you, head-butting you in the stomach. It knocked you back but not off your feet. You pushed the deceased back into the lounge area and the two of you were wrestling. The others were trying to intervene and everyone was yelling at you to drop the knife.

6 The deceased was telling you to get out of his house. He had opened the front door by this stage and was telling you to leave. You were punching at him and you were clearly punching at him with a knife in your hand. There was one stab wound to the chest of the deceased. It penetrated his heart and dissected the coronary artery and he died at the house. You suffered some injuries yourself which were depicted in the photos in Booklet B in the depositions.

7 A toxicology report in respect of the deceased shows that he had Serepax, valium, methamphetamine and cannabis in his system as well as alcohol, with a reading of .1 per cent. There was no toxicology report in respect of you, Mr Nolan, but it undoubtedly would have shown at the least, cannabis and alcohol. Various witnesses described you as drunk and the deceased as even more drunk, and also described him as aggressive. It appears that you were both, in my words, niggling at each other over the debt and the drugs, and this built up as the night wore on until what happened at the house occurred. How any member of the community see the drugs involved in this case as recreational, continues to astound me. They cause aggression - a releasing inhibitions that all too often result in terrible consequences such as this.

8 I have received a victim impact statement from the brother of the deceased man, Danny Gravina, which is Exhibit 1 on the plea. It consists mainly of relevant material but there is some which I will disregard as it is disputed, but there is no doubt that Mr Gravina feels very bereft at the loss of his brother such a short time after the loss of his mother in November 2002 at a young age and the loss of his much-loved grandfather in 2001. He was also present when his brother was killed, and there is no doubt that he suffers many painful memories of this incident.

9 You took responsibility for causing the death of the deceased man, albeit that you claimed to be acting in self-defence, a position that altered when you accepted the reality that the issue of self-defence was not really possible after the deceased man had placed the chair upon the floor. You offered a plea to manslaughter which was accepted by the Crown.

10 You were initially interviewed by the police shortly after this killing occurred, and then it took many months before you were charged. They were waiting upon advice being received from the Office of Public Prosecutions. The delay involved was actually quite deplorable. It was submitted, and the Crown agreed, that this was a spontaneous and unplanned act, and the basis upon which the Crown accepted the plea, and correctly so in my view, is that this was an unlawful and dangerous act.

11 The personal history is well set out in Exhibit 2 but there are certain matters to which I will refer briefly. You were born in Carlton to parents who both abused alcohol. Your mother died when you were nine, whilst giving birth to your younger sister. Your father then took you and an older brother to live with your mother's sister in Perth. Your father basically disappeared from your life and your relationship with your uncle was best described as difficult, with him being a harsh disciplinarian.

12 You have a number of brothers and sisters, some of whom you speak to, some of whom you do not see. At 16 you left Perth and came to live with a brother in the Carlton flats. You returned to Perth at approximately the age of 17 when you joined the regular Army. Your uncle, it appears, had been a member of the Army. You were in the Army for about eight weeks when you sustained a serious injury to your hand which was predicted to lead quite quickly to severe arthritis, and you were medically discharged from the Army as a result. You returned to Melbourne and lived with a sister for two years until you became involved in a de facto relationship at about the age of 21, with a woman with three children. You remained in that relationship until she left you. You were quite devastated by the loss of that relationship and your contact with the children.

13 You then developed another relationship which lasted for some 14 years. You have a child from that relationship who is now aged eight, and you had a stillborn child. You worked as a builder for some years and in various labouring jobs but have not worked in any significant capacity for some years now.

14 You were placed on the invalid support pension as a result of your arthritis, in 1998. You became involved in doing voluntary social work which appeared could have led to some worthwhile and positive things occurring in your life but that lapsed also, due to your problems to which I shall refer.

15 You have a significant history of substance abuse for both alcohol and various types of drugs. These are clearly set out in various reports that have been tendered to the court, including the report from Dr Duncan Howard who has been treating you since 1993, although your patient history with the clinic, which is part of St Vincent's Hospital, dates back to 1987.

16 He stated that your medical problems are complex and include polyarthralgia, Hepatitis C and ongoing depression. You have been admitted to hospital at least four times in the past in respect of depression and you receive antidepressant and anti-anxiety medication. You have also been treated with electro-convulsive therapy for this problem. You also suffer from what he described as substance abuse issues, with which you have struggled for many years.

17 I have a report from Dr John Lynch in respect of your drug and alcohol issues and your depression, and a letter from Heather Carmichael from Moreland Hall, relating again to alcohol and drug dependency issues. You have been involved with ongoing treatment with Moreland Hall since 2002. You have made many attempts to deal with these issues. You have made substantial attempts, most of which have at some stage failed, but you persist. That gives me encouragement that you may, at some stage in your life, be able to turn your situation around.

18 Further, I have reports from Dr Danny Sullivan, psychiatrist, and Mr Bernard Healy, psychologist. Dr Sullivan assesses you as fulfilling the diagnostic criteria for recurrent depressive disorder of a mild to moderate severity, and the criteria for poly-substance abuse, currently in partial remission.

19 When finally arrested and charged with the offence of murder, you spent two days in the Melbourne Assessment Prison where you began to experience auditory hallucinations and then visual hallucinations. You were placed in the Acute Assessment Unit of Port Phillip Prison and after a few weeks there you were transferred to the Protection Unit before you were ultimately bailed.

20 It is clear that you have many physical and mental problems that will undoubtedly continue to trouble you for many years. It is also apparent that your time in custody may be served under difficult conditions. You have limited prior convictions particularly when your mental and physical problems are examined. There is only one for any form of violence and that relates to an assault by kicking, back in 1985, some 20 years ago, and for which you were fined the sum of $400. I therefore do not treat you as a person who is prone to violence.

21 Your other previous convictions relate to use and possession of amphetamine in 1994 and a time 1992 when you were involved with a professional shoplifter and received a suspended gaol sentence which you completed without breaching. The only other prior conviction before me relates to being an unlicensed driver in 1997. None of these prior convictions have any great impact on the sentencing task that I have to undertake. They demonstrate to a degree your lengthy involvement in drug usage but little more.

22 There a number of matters that I take into account in mitigation of the penalty that is to be imposed upon you. Firstly, your plea of guilty and your expressions of remorse which I accept to be genuine. Secondly, the fact that this was a spontaneous incident. Thirdly, that the incident arose due to the aggression of the deceased man in picking up a chair and threatening you with that chair. Fourth, your exceedingly bad health problems of both a physical and mental nature. Fifth, the fact that you have reasonable prospects of rehabilitation. Sixth, that you'll have difficulty in maintaining the relationship with your child for whom you have great affection.

23 The circumstances of aggravation are that the deceased was even more affected by alcohol and drugs than you were; that it was a young life that you ended, and that the argument between you and the deceased was over the use of illegal drugs, plus the fact that the deceased had in fact desisted from trying to harm you beyond a physical fist fight.

24 Weighing all of those factors to which I have referred and having regard to the consideration set out in s.5 of the Sentencing Act of 1991, I sentence you to be imprisoned for a term of six years and six months, and I fix a non-parole period of four years. I direct that pursuant to s.18(4) of the Sentencing Act, that you have already served 78 (Seventy-eight) days in custody.

HER HONOUR: Are there any other orders that are sought? Section 464 retention, is it?

MR GYORFFY: Yes, Your Honour.

HER HONOUR: Yes. Any objection?

DR LYON: No objection, Your Honour.

HER HONOUR: Any objection for the disposal order?

DR LYON: No objection to the disposal order, Your Honour.

HER HONOUR: Then I will make both those orders. You can be seated, Mr Nolan. Any other matters?

MR GYORFFY: No, Your Honour.

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