Regina v Dolan [2005] NSWSC 380

New South Wales Supreme Court

CITATION : Regina v Dolan [2005] NSWSC 380

29/11/04 - mention HEARING DATE(S) : 31/03/05 01/04/05

JUDGMENT DATE : 4 May 2005

Common Law Division JURISDICTION : Criminal List

JUDGMENT OF : Kirby J

DECISION : Sentenced to a term of imprisonment of 15 years 4 months commencing 19 October 2002 and expiring 18 February 2018, with a non parole period of 10 years 3 months. Eligible for release on parole on 18 January 2013.

CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Plea of guilty to murder - contested issues of fact - no premeditation - HIV virus - in protection - limited life expectancy.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Evidence Act 1995 Crimes (Administration of Sentences) Act 1999

R v Smith (1987) 27 A Crim R 315 Queen v Giardini (CCA, unreported, 25.2.93) R v Szabo [2003] NSWCCA 341 CASES CITED : R v Wickham [2004] NSWCCA 193 R v Vachalec (1981) 1 NSWLR 351 R v L (CCA (NSW), unreported, 17.6.96)

Regina PARTIES : Gary Michael Dolan

FILE NUMBER(S) : SC 2003/70089

J Crespo (Crown) COUNSEL : P D Young (Prisoner)

J Henderson, sol (DPP) SOLICITORS : Hughes & Taylor, solicitors

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

DAVID KIRBY J

Wednesday 4 May 2005

2003/70089 - REGINA v Gary Michael DOLAN

JUDGMENT ON SENTENCE 1 KIRBY J: On 18 October 2002, Gary Michael Dolan bludgeoned his stepmother, Marcia Ann Dolan, to death with an axe. She was struck on the head at least five times as she lay sleeping on the lounge in her home at Gymea. It can be inferred that she died instantly. She was discovered a short time later by ambulance officers who were called to the home. She was still lying on the couch. 2 On 29 November 2004, Mr Dolan pleaded guilty to murder. Submissions on sentence were heard on 31 March and 1 April 2005. The submissions occupied some time. There were contested issues of fact. A number of witnesses gave evidence, including Mr Gary Dolan. 3 It remains for me to pass sentence. I must first determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Dolan, it is enough that they should be proved on the balance of probabilities.