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. Background. 4 Mr Gary Dolan was born on 8 June 1963. At the time of these events he was 39 years old. He is the son of William and Winifred Dolan. He is one of six children. His parents separated when he was a teenager and divorced some time later. His father thereafter met Marcia, who came to live at the house that he occupied in Gymea. They later married. 5 In 1997, William Dolan inherited the house at Gymea. He and his wife decided to demolish the house and rebuild. She used the money she had accumulated as superannuation to pay the construction costs. The title to the property was then changed to reflect their respective contributions. The property was thereafter held as tenants in common. At the same time, William and Marcia Dolan executed mutual wills, that is, wills in identical terms. Upon the death of one, the surviving spouse would have a life estate in the property. Upon their death, the property would then pass to the six Dolan children in equal shares. 6 Marcia Dolan was born on 15 January 1942. At the time of her death she was 60 years old. When she was a young woman, long before she met William Dolan, she had a child. She was not then married. The child was adopted by a family in Western Australia. In 1996, after a search by Marcia Dolan and the child, they made contact. They ultimately met in May 2000 when Marcia Dolan travelled to Western Australia. Her son came to Sydney in March 2001 and stayed at Gymea. 7 At about the same time, William Dolan was diagnosed with throat cancer. He underwent treatment for the next 18 months. His son, Gary Dolan, was very close to him. He regularly stayed at Gymea, sometimes for three days a week. With his sister and Marcia Dolan, they transported William Dolan to hospital when required. Gary Dolan helped maintain the home and mowed the lawns. 8 William Dolan died on 8 August 2002. Each witness who knew father and son, commented upon the closeness of their relationship. His death occurred a little more than two months before this crime. I accept that the death of William Dolan had a profound impact upon the offender, Gary Dolan. 9 After the funeral, Gary Dolan spent the next month at Gymea with Marcia Dolan, his stepmother. That was not unusual, having regard to their relationship. He alone of the Dolan children saw a good deal of Marcia. They got on well. They went shopping together. A room was set aside in the house which was regarded as the room of Gary Dolan. 10 Gary Dolan came from a close knit family. Most of his siblings have been successful in one field or another. Gary Dolan was homosexual. He led a rather different life. He drank alcohol to excess, regularly indulging in alcoholic binges. He injected amphetamines and had done so for some 14 years. He had, for an extended period, worked as a male prostitute or sex worker. He lived, what his friends termed, the life of a gypsy. He had no home. He had no income. He lived from day to day, performing casual work. He lived out of a suitcase, on some nights staying at private hotels. On others, he would stay with friends or family. On occasions he would stay at Gymea with his father and Marcia and, after his father's death, with Marcia alone. Marcia Dolan plainly welcomed her stepson's presence. Indeed she complained of the neglect of the Dolan children other than Gary Dolan. 11 Within a month of the death of William Dolan, Gary Dolan was diagnosed as suffering from the HIV virus, Hepatitis B and Hepatitis C. A certificate was issued enabling him to claim Social Security benefits on 24 September 2002. He began anti-viral therapy to combat the disease. The incident. 12 On Thursday 17 October 2002, Gary Dolan rang his stepmother, Marcia, saying that he would come to Gymea the following day at about 6.00 pm. Mrs Dolan was planning a barbeque for neighbours and family, including the Dolan children. She had in mind that Gary Dolan would attend to the garden and mow the lawns, as he usually did. 13 On Friday 18 October 2002, Gary Dolan spent the morning with his mother and sister, Kerri. At about 2.00 pm they drove him to Blacktown. They dropped him off at the Adams Tavern bottle shop where he purchased and drank alcohol. 14 Mr Dolan then caught the train to Petersham. He collected wages that were owing to him and used part of the money to purchase more alcohol. He bought a six-pack of beer, drinking three small bottles of beer at the premises. 15 Mr Dolan then caught the train to Gymea. Surveillance footage within the Gymea Hotel showed that he entered that hotel at about 4.30 pm. He bought a pack of Johnnie Walker Whisky and Cola and was given a complimentary can of the same drink. He then walked to Gymea Bay. At some point he purchased a 375 ml bottle of Bundaberg Rum. 16 At 5.40 pm Marcia Dolan telephoned her friend, Judith McInnes. She said that she was expecting Gary. She was apprehensive because he had not yet arrived. At 6.15 Mrs Dolan telephoned her cousin, Alison Fay. Gary had still not arrived. She said she thought he would not come. She added that she was not looking forward to spending the weekend alone. 17 However, at about 6.30 pm, Gary Dolan arrived. Together he and his stepmother sat in a garage, which had been furnished and which was an annex to the house. Mrs Dolan enjoyed a drink. She and Gary Dolan shared a drink, sitting in the garage with the roller shutter door open. The garage opened onto a laneway. A neighbour, Beth Robinson, drove along the laneway at 6.45 pm. She saw Marcia and Gary Dolan having a drink. Ms Robinson's statement to the police included the following observation: "I thought I heard them both laughing and they seemed to be enjoying each other's company." 18 Another neighbour, David Silversmith, walked down the laneway, past the garage, at about 7.00 pm. He saw Marcia and Gary Dolan seated inside the garage, facing each other, sharing a bottle of Bundaberg Rum. Mr Silversmith could see that Gary had had a few drinks. He spoke briefly to Marcia and then passed on his way. 19 Marcia then prepared a meal which she and Gary ate together. Mr Dolan said that he did not feel hungry and ate very little. 20 At some time between 7.30 pm and 10.30 pm, Mr Dolan armed himself with an axe. He then murdered Marcia Dolan, as she lay dozing on the couch. Mr Dolan, in his evidence, gave an account of comments made by his stepmother which he found extremely hurtful. He said that he had no real recollection of what he did after 7.30 pm before making certain telephone calls later that evening. Indeed, he asserted that even later in the evening, his memory was patchy. 21 The remarks said to have been made by Marcia Dolan are the only explanation Gary Dolan can offer for his attack upon his stepmother. He acknowledged at once that, even were his evidence accepted, the remarks afforded no excuse for what followed. 22 The Crown strongly challenged Mr Dolan's account. It suggested an altogether different motive. The Crown alleged that Mr Dolan had been planning the murder for some time. He was driven by greed. He was impatient for his share of the Gymea property. 23 I shall review what happened between 10.30 pm and Mr Dolan's arrest the next morning at 5.30 am. I shall then examine the evidence put forward by the Crown as proof of premeditation and motive. Having done that, I will return to the explanation given by Mr Dolan, namely, that he overreacted to certain hurtful remarks made by his stepmother that evening. Evidence of premeditation. 24 At 10.30 pm Gary Dolan rang his mother. He asked that she telephone his twin brother, Paul. Paul ordinarily lived in Tokyo. At the time of the murder he was in Sydney in a city apartment. Mrs Winifred Dolan rang Paul. She asked him to telephone Gary at Gymea. 25 Five or ten minutes later, Gary Dolan rang his mother again. He had not heard from Paul. His conversation with his mother included these words: "(GD) Did you call Paul? (Mother) Yes, hasn't he called you yet? (GD) No, could you get him to phone me now? (Mother) Well, like urgently? (GD) Yeah now." 26 Paul Dolan rang his brother at 10.45 pm. Gary Dolan told him that he thought Marcia was dead. He added: "I'm standing here with a club in my hand and Marcy's on the floor and I'm pretty sure she's dead." 27 Gary Dolan did not sound drunk. However, he did appear to be somewhat vague. 28 Paul Dolan immediately rang his brother, John, in Yamba. John then rang Gary at Gymea Bay. Gary Dolan affirmed that Marcia was dead. He said there was blood everywhere. John said that he would ring the ambulance. Gary Dolan responded, saying: "Too late. They won't be able to help her." 29 At 11.12 pm John Dolan, nonetheless, telephoned 000 asking for the ambulance and police. He said that his brother had told him that he had done a terrible thing. Either Gary Dolan said, or John inferred, that he had murdered his stepmother, Marcia Dolan. 30 At 11.16 pm John Dolan rang his brother back. He told him that he had notified the ambulance and the police. Gary Dolan, meanwhile, had telephoned a taxi. The taxi arrived at about 11.24 pm. As the taxi arrived, the driver saw a vehicle leave the premises. Gary Dolan, after his brother's phone call, had decided not to wait for the taxi. Instead he took Marcia Dolan's car. The ambulance and police arrived at about 11.30 pm. 31 Mr Dolan drove to the city. Just after midnight he called his brother Paul on a mobile phone. He was standing across the road from his apartment. His brother looked out the window and saw him. He told him to come up. Paul Dolan then watched his brother cross the road, looking neither left nor right. Cars had to swerve to avoid him. 32 Gary Dolan then spoke to his brother Paul. He seemed unusually quiet. He recounted again the circumstances of finding Marcia covered in blood. He included, as he later acknowledged, a false account of another person at the premises at the time he made his discovery. He also showed his brother a medical certificate confirming that he had the HIV virus, Hepatitis B and Hepatitis C. 33 Mr Dolan then left his brother's apartment to visit a friend. He was arrested at 5.30 am the following morning as he returned to Marcia Dolan's car. He was later interviewed by the police. He told the police that he left the premises at 7.30 pm and that when he left Marcia was still alive. Pre-meditation. 34 One then comes to the evidence suggesting pre-meditation. Pre-meditation, were it found, would be a circumstance of aggravation (s21A(2)(n) Crimes (Sentencing Procedure) Act 1999). Two witnesses gave evidence of planning on the part of Gary Dolan of the murder which he ultimately committed. The first, Kurt Jordan, was Gary Dolan's partner for seven years. Their relationship ended in 1992. They nonetheless remained on good terms. Mr Dolan continued to see Mr Jordan and his new partner, Mr Stephen Pattinson, from time to time. He would often stay overnight. Mr Stephen Pattinson was the second witness. 35 Mr Jordan gave evidence that, about a month after Gary's father died, that is about a month after 8 August 2002, he received a phone call from Mr Dolan. The phone call was as follows: (T5) "He rang me up and he said 'can you get me a gun' and I asked him what for and he told me that it's no one that I knew and he said what price range would it be and I told him it would be between 750 for a gun that wasn't clean, to 3200 for a Glock in a box." 36 According to Mr Jordan, Gary Dolan said that he would get back to him once he had the money. 37 Some weeks later, Mr Dolan attended the apartment of Mr Jordan. He brought with him a bottle of Scotch and several grams of amphetamines, which they then shared. Mr Dolan disclosed that he had been diagnosed as suffering from the HIV virus, Hepatitis B and C. Mr Jordan himself, incidentally, also suffered from the HIV virus. 38 The conversation then turned to Mr Dolan's stepmother, Marcia. According to Mr Jordan, Gary Dolan said this: (T7) "He asked me if I wouldn't get a gun how else to kill her." 39 Mr Jordan enquired why Mr Dolan wanted his stepmother dead. According to his evidence, Mr Dolan gave the following explanation: (T7) "Q. Did the prisoner answer you? A. He said that his sister had a baby that was blind and wanted a house for Kerri and Michael to raise the child. Q. Did he say anything about the consequences upon him of doing anything of that nature? A. After what he just contracted he didn't mind doing that to give them somewhere to live." 40 During the course of their conversation, Mr Jordan made another suggestion. He knew Marcia. He knew she took valium. He had some knowledge of drugs, and said this: (T8) "... I was the one that told him that if he wanted to use valium he would have to have morphine or use morphine like in palliative care to stop the respiratory system from working." 41 This discussion took place on a day that Mr Dolan arrived at Mr Jordan's home at 4.00 am. He was still there at 11.00 am when Mr Jordan left to visit his partner, Stephen Pattinson, in hospital. Mr Jordan returned some time after midday. By then Mr Dolan had gone. When they had the conversation about Marcia, Mr Dolan was, according to Mr Jordan, "very intoxicated". 42 The conversation with Mr Dolan occurred on the day Mr Jordan brought his partner home from hospital (T13). Mr Pattinson was discharged from hospital on 3 October 2002. Plainly, therefore, Mr Pattinson was not present during the conversation which Mr Jordan recounted. 43 The statement he made to the police, incorporating these conversations, was dated 18 February 2003, almost four months after the conversations were said to have taken place. Mr Jordan's evidence must be approached with some caution. It may be unreliable. First, he gave evidence of admissions made by Mr Dolan. Admissions fall within the class of evidence that may be unreliable (s165(1)(a) Evidence Act 1995). Secondly, during the face to face meeting, he and Mr Dolan consumed a bottle of Scotch and several grams of amphetamines (s165(1)(c)). Thirdly, there is a risk of contamination. The other witness who gave evidence, concerning this issue, is Mr Jordan's partner, Mr Stephen Pattinson. He, likewise, made a statement to the police on 18 February 2003. 44 Before expressing a view concerning this evidence, it may be useful to recount what Mr Pattinson said. Mr Pattinson had also been diagnosed with the HIV virus. He was admitted to hospital in February 2002 and remained there until 3 October 2002. He was then discharged. At some point after his discharge, he came home to the flat and saw Gary Dolan speaking to Kurt Jordan in the lounge room. The conversation was very intense. Mr Pattinson said that he passed through the lounge room unnoticed. As he did so, he overheard a conversation which was in these terms: (T30) "A. I heard Gary Dolan say to Kurt, 'how do I kill her?'. Q. Did Kurt say anything in reply? A. Yes he did. He said, 'I think you need to talk to somebody about how you feel'. Q. Did you hear the prisoner Mr Dolan say anything further? A. No, he didn't respond to that. He further [went] on to say, 'well I got nothing to lose now I may as well kill her'." 45 Mr Pattinson formed the view that Mr Jordan was intoxicated with alcohol and amphetamines. 46 The evidence of Mr Pattinson must also be approached with caution, for many of the same reasons as in the case of Mr Jordan, although there was no evidence that he was affected by alcohol or drugs at the time of the conversation. 47 Mr Pattinson said that the conversation occurred some days, or even a couple of weeks, after his discharge from hospital, that is, mid October 2002. At about this time he closely observed Gary Dolan. He thought that he detected the symptoms of the HIV virus. He urged Mr Dolan to have a test, which Mr Dolan did in the next day or so. The test showed that Mr Dolan did indeed have the HIV virus. 48 Clearly there are irreconcilable differences between the accounts given by Mr Jordan and Mr Pattinson. No one suggested there were two separate face to face conversations involving discussions concerning Marcia's death. On the account each gave, there was only one meeting where Marcia's murder was discussed. According to Mr Jordan, his meeting and conversation with Mr Dolan took place no later than 3 October 2002, in Mr Pattinson's absence. Mr Pattinson was still in hospital. Mr Pattinson, however, says that he was present. The conversation took place some time after his discharge on 3 October 2002 and coincided with the diagnosis of Mr Dolan with the HIV virus. 49 However, it is clear that Mr Dolan was diagnosed with the HIV virus no later than 24 September 2002, being the date on his certificate (Exhibit 3). Mr Pattinson was still in hospital. Mr Pattinson thought that the explanation for the discrepancy may be that Mr Dolan was "foxing", that is, deliberately misleading him. However, since Mr Jordan's account includes the fact that Mr Dolan told him of his diagnosis, that makes no sense at all, especially since both Mr Jordan and Mr Pattinson themselves had the HIV virus. It would be pointless to tell Mr Jordan and on the same day conceal the information from his partner, Mr Pattinson. 50 Mr Jordan was cross examined concerning the circumstances in which he made his statement to the police. The police asked him beforehand whether he had had any involvement in the murder. He denied that he had. He believed, nonetheless, that he was under suspicion. The police told him that, in the course of their investigation, they had found certain fingerprints in the house which had not been identified. As Mr Jordan had not been to the Gymea house since it was rebuilt, he volunteered that, if his fingerprints were present, they could only be on an ampule of a drug which he had provided Mr Dolan. 51 Mr Jordan was also cross examined about his memory. His evidence in this Court was that the telephone conversation was about a month after William Dolan's death, which would make it about 8 September. The meeting with Gary Dolan was on the day that his partner was discharged from hospital, 3 October 2002. However, his statement to the police and his evidence in the committal proceedings, suggested a somewhat different timetable. The phone call had occurred within seven to ten days of William Dolan's death. The meeting with Gary Dolan was "a couple of weeks after that", which would make it the end of August 2002. Mr Jordan explained that one of the side-effects of the HIV virus was peripheral neuropathy. His memory had been affected. 52 Mr Gary Dolan, as mentioned, also gave evidence. He denied the conversations attributed to him by Messrs Jordan and Pattinson. At no stage had he sought a gun, nor advice or help from Mr Jordan to murder his stepmother. Mr Jordan had, however, provided an ampule of a drug to Mr Dolan in about May that year. But, it had nothing to do with Marcia Dolan. It was given so that a very old cat could be put to sleep. The owner of the cat was a friend of Gary Dolan and was reluctant to have the cat put down. Mr Jordan, indeed, referred to the cat in his statement to the police. 53 Mr Dolan also said he did mention to Mr Jordan in conversation that his sister, Kerri's, baby was technically blind. He said nothing, according to his testimony, about Kerri requiring a home to raise her child. He understood that Kerri and her partner were financially secure. They had a home. 54 Ms Kerri Dolan also gave evidence. She and her partner, Michael Jackson, had a baby. The baby had difficulties with his sight, but was certainly not blind. He is able to attend an ordinary pre-school. They had no financial difficulties. She and her partner owned an investment unit. Both were employed in secure jobs. She had never suggested to her brother that she was at risk of being homeless. 55 There was other evidence concerning the relationship between Marcia Dolan and Gary Dolan before the night of the murder, which is relevant to an evaluation of this evidence. The Crown tendered a number of statements. They included the statements of friends and relatives who knew both Marcia and Gary Dolan well and saw them together. Subject to one matter, which I will come to shortly, each witness said that Marcia Dolan got on well with Gary Dolan. They spent considerable time together. The conversations between Mrs Dolan and her friends, a matter of hours before her death, suggested that she enjoyed Gary Dolan's company and was looking forward to his visit. 56 Weighing these matters, I am not satisfied that Gary Dolan spoke to Kurt Jordan in the terms suggested or that he made the statements attributed to him by Stephen Pattinson. I therefore do not find premeditation. Changes to the Will. 57 I should deal with one other aspect. There was some evidence which may suggest a possible motive. It will be remembered that in 1997, having built a new home at Gymea, William Dolan and Marcia Dolan executed mutual wills. The Dolan children were the ultimate beneficiaries after both died. Marcia Dolan, meanwhile, had made contact with her son. At some point, she apparently altered her will to make provision for him. He was to receive 40% of her estate and the six Dolan children 10% each. 58 Some time after that, Marcia Dolan again spoke to her son about the will. It is not entirely clear when the conversation took place, although one infers that it was not long before her death. She told her son that she intended to change her will. She planned to make him the major beneficiary of her estate. 59 The statement provided by Marcia Dolan's son to the police included one other matter. After her husband's death, Marcia Dolan disclosed to her son that she was having problems with Gary. They had been arguing over something. She did not elaborate. 60 The Crown acknowledged that there was no evidence that Gary Dolan became aware of Marcia Dolan's intention to alter her will. Mr Dolan denied that he was aware. It was his understanding that Marcia's estate would be divided between the six Dolan children. 61 It cannot, of course, be assumed that the argument between Mrs Dolan and Gary Dolan, to which her son referred, related to her will. No inference adverse to Mr Dolan can be drawn on that aspect. Financial greed is not a convincing motive on these facts. Mr Gary Dolan had lived a nomadic life for some time. There appeared to be no shortage of people, whether family or friends, who were willing to shelter him and care for him. The night of the murder. 62 I come then to the suggestion by Mr Dolan that his stepmother made certain hurtful remarks on the night of the murder, which in some way triggered the violence that followed. When interviewed by the police on the day following the murder, nothing was said by Mr Dolan about his stepmother having said anything to upset him during the evening. At that stage, Mr Dolan denied any involvement in the murder. 63 The suggestion of hurtful remarks first emerged in a psychiatric report from Dr Allnutt on 9 February 2005. Mr Dolan told Dr Allnutt that, before his arrival at Marcia's home, he had consumed a substantial amount of alcohol and had also taken amphetamines. He continued to drink with Marcia after he arrived. 64 He also provided an explanation for the way in which the axe, which was ultimately used as the murder weapon, came to be close by. Dr Allnutt's report included these words: "He said that he eventually got up and went to the other garage where he collected an axe. He told me that in the garden was a plum tree that was dying that he had been gradually chopping down over the past few months. With the axe he chopped a few times at the plum tree. He then returned to the kitchen through the lounge garage and put the axe next to the fridge. He made more drinks. At this stage he recalled his stepmother was in the kitchen working." 65 Mr Dolan said that, whilst sitting with Marcia sharing a drink, he noticed that a photo of his father had been removed. The photo had particular significance for him. He began looking elsewhere throughout the house for the photograph. He could not find it. He did not raise the issue with Marcia immediately, although he did disclose to her that he had been diagnosed with the HIV virus and the other illnesses. 66 At some point, the issue of the photograph was discussed. They had an argument. Mr Dolan said that, in the course of the argument, Marcia said something to the effect that he had been hanging around watching his father die. He thought that she was, in some way, implying that he was responsible for his father's illness. He saw this as a reference to the HIV virus. He recalled feeling furious. But that was all he recalled. His next recollection was of seeing blood. It was then that he phoned members of his family. 67 In evidence, Mr Dolan elaborated upon his account of the events of 18 October and his interaction with Marcia. He said that he arrived at the premises at about 3.00 pm. He worked in the garden for a time, using the axe. He came inside to go to the toilet at about 4.00 pm. He left the axe next to the fridge in the kitchen. He then became distracted and the axe remained in that position. 68 When giving evidence, the account Mr Dolan gave of his conversation with his stepmother was somewhat different. The exchange concerning his diagnosis with HIV was recounted almost as a joke. Mr Dolan said this: (T57) "A. ... I told Marcia my medical condition. And I told her that I had Hepatitis B and Hepatitis C. And she got - she became indignant and said 'I hadn't caught it here', meaning at Gymea Bay at the house I assumed. Q. How did you respond to that? A. I laughed and said, 'yes, I know'." 69 The conversation which was hurtful was somewhat later. It was after dinner at about 7.30 pm. Mr Dolan gave the following evidence: (T58) "Q. What happened next? A. I was wandering around the backyard. I went back inside the house. I went to the bathroom. I came out of the bathroom and Marcia was lying on the lounge watching television or dozing. And she told me she didn't want me coming around the house when I was sick. Q. Did you comment on that? A. Yes. I said 'what do you mean?'. She said that she had been taking care of myself and my family, and my father for the last two years and she was sick of it. She had enough. She wanted a break from it. Q. What did you say? A. I said to her, 'what do you mean, you haven't been taking care of my father. It was Kerri and I.' She wasn't able to poach an egg. Q. Did she say anything bout your father dying? A. Yes. She said to me that 'you have just been hanging, sitting around for him to die the last year and a half.' Q. How did that make you feel? A. She said 'and you took care of that', and I was very upset at that point." 70 Mr Dolan repeated that his next recollection was of seeing blood. He then made a number of telephone calls to members of his family. 71 Mr Dolan was again strongly challenged in cross examination in respect of that account. Had he positioned the axe near the kitchen as an aspect of his plan to murder Marcia Dolan? Had Marcia, who had looked after him like a mother, made the remarks which he attributed to her? What had happened between 7.30 pm, when he said the remarks were made, and 10.30 pm, when he telephoned his mother? How was it that Mr Dolan so conveniently had no recollection of that interval? 72 Mr Dolan again denied planning. He insisted that his stepmother had spoken to him in the terms that he had described. He simply had no recollection of the hours before 10.30 pm. 73 There are difficulties with aspects of Mr Dolan's account. His memory is plainly awry on some issues, perhaps because of the alcohol and drugs that he had consumed. It is clear that he did not arrive at the house at 3.00 pm. Marcia Dolan's phone calls to her friends as late as 6.15 pm suggest that his arrival was closer to 6.30 pm. Neighbours thereafter saw Mr Dolan sitting with Marcia in the garage talking and drinking at 6.45 and 7.00 pm. It therefore seems unlikely that he did gardening after his arrival, unless he used the interval during which Marcia was preparing the meal. However, by the time of his arrival it was already late. It would have been dark, unless part of the garden was illuminated. 74 Leaving that issue to one side for a moment, the terms of Mr Dolan's phone calls to his mother at 10.30 pm, and his urgent need to speak to his twin brother, Paul, suggest that the murder had only just occurred. The position of the deceased, lying on the couch, suggests that she was asleep when she was struck. That, in turn, suggests that the conversation between Marcia and Gary Dolan, if there was a conversation, took place some time before. It offers perhaps some confirmation of Mr Dolan's evidence that he last spoke to her at about 7.30 pm, or at least at some time earlier in the evening. 75 One cannot say without speculation exactly what happened. I nonetheless think it likely that Marcia Dolan did say something to Gary Dolan which carried the implication that she was not willing to look after him as he became progressively more disabled by reason of his illness and that he would not be welcome in her home. 76 Those who knew Marcia Dolan spoke well of her. She was a kind woman. She nonetheless had suffered from schizophrenia from time to time. According to Kerri Dolan, she was given to mood changes. She was capable of making a cutting remark. Mr Dolan himself described her as "quirky". 77 Mr Gary Dolan was, as I have said, very close to Marcia Dolan. She had been like a mother to him. Since she was clearly fond of him, she would naturally have been upset to learn of his illness, which was life threatening. People react in different ways to bad news. I think it likely that she may have reacted by making the comments attributed to her by Mr Dolan, even though she may not have meant them. I also think it likely that, after dwelling on these remarks and perhaps consuming more alcohol, Mr Dolan then got the axe from the garage and murdered Marcia Dolan. 78 The circumstances of the murder do not suggest planning or premeditation. It was well known that Mr Dolan was going to Marcia's home that evening. He was, that evening, seen by a number of neighbours in the garage with Marcia. He had telephoned a number of his siblings immediately after the murder. He, in effect, confessed to the murder. He thereafter telephoned a taxi to pick him up from the premises. When told by his brother that the police and the ambulance were on their way, he took Marcia's car. He could not take the chance that the police would arrive before the taxi. These are all the hallmarks of a spontaneous and unplanned act. 79 The events which are fundamental to an understanding of this crime occurred within a little more than two months. On 8 August 2002, Mr Dolan's father died. In mid September 2002, Mr Dolan was diagnosed as suffering from various illnesses including the HIV virus. The murder took place on 18 October 2002. It took place when Mr Dolan was at a low ebb. I also accept that Marcia Dolan was important in his life, just as he was important in her life. Her remarks that evening were no doubt unintended, in the sense that they would not have reflected her state of mind the following day. Yet, in Mr Dolan's intoxicated state, they appeared to have touched more than a nerve. His intoxication, of course, is no excuse. However, it is part of the explanation for this shocking and brutal crime. Mr Dolan's background. 80 Let me move from the crime to Mr Dolan himself. I have already said something about his background. He is almost 43 years old. Throughout his adult life, he has clearly had a problem with alcohol and drugs. His criminal record reflects that problem. On a number of occasions he has been convicted of driving whilst affected by alcohol (1989, 1991, 1996, 1999 and 2000). On some of those occasions he has been grossly affected. He has been repeatedly disqualified from driving. 81 Mr Dolan also has other convictions. Again, one suspects that they are alcohol or drug related. In 1986 he was convicted of both receiving and having goods in custody. He was fined on one charge and required to enter into a three year bond on the other. In 1989, he and Kurt Jordan were convicted in Queensland of false pretences. He was ordered to serve a number of hours community service. In 1990, Mr Dolan was convicted of assault. He was involved in an altercation with a taxi driver. He was required to enter a three year bond. In 1994, he was convicted of supplying a prohibited drug. His sentence was six months periodic detention. On 4 February 2003, Mr Dolan was imprisoned for six months for failing to comply with a community service order. The community service order had been imposed for a further drink driving offence. 82 The Crown acknowledged in argument, nonetheless, that Mr Dolan's criminal record cannot be considered a circumstance of aggravation in terms of s21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. Plea of guilty. 83 Mr Dolan's plea of guilty, on the other hand, is a matter in mitigation (s21A(3)(k) and s22). Mr Dolan was committed for trial on 23 October 2003. He was arraigned on 15 March 2004. At that stage he entered a plea of not guilty. The trial was set down for 29 November 2004. On 5 November 2004, the solicitors for Mr Dolan communicated his intention to plead guilty. The plea was taken on 29 November 2004. The matter was then adjourned for submissions on sentence. 84 The discount on a plea of guilty is primarily determined by the timing of the plea. Here it was a late plea, which would ordinarily attract a 10% discount. Counsel for Mr Dolan, however, urged a greater discount. There was a change of solicitors after the committal. The investigation of possible psychiatric defences had not been undertaken. It was necessary to make arrangements for Mr Dolan to be examined by a psychiatrist and thereafter confer with him. That took time. The plea was entered once it had been determined that there were no available defences. I accept that a 15% discount is appropriate. 85 I also accept that Mr Dolan is contrite. He appeared to be genuinely horrified by his actions. In his evidence he apologised to the family of Marcia Dolan and to his own family. I accept that his apologies were sincere. Mr Dolan's health. 86 One then comes to Mr Dolan's health. His treating doctor, Dr Jeffrey Post, provided a report of 18 February 2005. Dr Post is a specialist in infectious diseases. The HIV virus, of course, affects the immune system. A person with that disease is at high risk of infections. In 2003, Mr Dolan experienced an episode of immunodeficiency, secondary to the HIV infection. He remains at significant risk of developing other opportunistic infections. He requires constant anti-retroviral therapy, administered by means of tablets twice a day. 87 Mr Dolan, as mentioned, also has Hepatitis B and C and chronic liver disease. Such diseases progress more rapidly in people who are also infected with the HIV virus. In respect of that disease, he requires further treatment, which he is receiving. 88 In February 2005, when seen by Dr Post, Mr Dolan had developed good control of viral replication. He does, however, require constant monitoring and regular blood tests whilst in prison. He has access to specialist medical care and medication. However, the difficulties experienced by Mr Dolan in 2003 were the consequence of a failure to administer medication as required. The nursing staff at the gaol have been asked to address that problem. Should it reoccur, Mr Dolan will be at risk of treatment failure and HIV progression. I accept that the treatment of his complex diseases, in an institutional setting, puts him at a disadvantage. 89 Dr Post expressed his prognosis in these terms: "With the current therapy, his prognosis is good in the medium term, with him likely to survive more than ten years." Protection. 90 When first taken into custody, Mr Dolan was housed at Parklea Gaol. He was not on protection. He was then transferred to the hospital section of the Long Bay Gaol. He was placed in the protection zone with seven other patients who also had the HIV virus. Having been placed in protection, Mr Dolan has been obliged to remain there. It would be dangerous, having been in protection, to re-enter the general prison system. I accept that he is likely, therefore, to remain in protection for the duration of his sentence. Mr Dolan described the disadvantages of protection in these terms: (T64) "It means I can't work so there is nothing to do (in) the day and there is no access to facilities such (as) education, library or very limited music. Visits are different. Very restricted in your visits. Just the stigma that's placed upon you, strictly by being a protection inmate. And other things, like access to hot showers, we don't have. We have to shower outside, and one of the yards that we share with another section of the gaol only has cold running water. So access is things like that. I have not been able to shower since Tuesday and that was a cold outdoor shower. It is very limited." 91 A sentencing principle, relevant in this context, was stated in R v Smith (1987) 27 A Crim R 315, by King CJ in these terms: (at 317) "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." 92 I accept that the multiple illnesses suffered by Mr Dolan will make his imprisonment a greater burden. I also accept that his illness has brought about his placement in protection, where he will remain. Protection will add to his burden. 93 I further accept that the fact of imprisonment could adversely affect Mr Dolan's health, were there a recurrence of what was recognised by Dr Post as inadequate treatment in 2003. If that were to occur, Mr Dolan may not indeed survive the minimum term which I have in mind. That, too, is a relevant consideration (Queen v Giardini (CCA, unreported, 25.2.93)). 94 What relevance does the limited life expectancy of Mr Dolan have on the term that should be imposed? It is relevant to both the term and the non parole period (R v Szabo [2003] NSWCCA 341). There are limits, nonetheless, to the extent which a sentence which is otherwise appropriate can be moderated by reason of this aspect. In R v Wickham [2004] NSWCCA 193, Howie J said this: (para 18) "Common humanity will sometimes require a court to consider a life-threatening physical illness as a matter of mitigation even though the offender was suffering from such an illness at the time of the commission of the offence. However, where as here, the issue is one of the protection of the community, it may be that common humanity for the offender gives way to concern for potential victims." 95 If Mr Dolan's condition were to deteriorate during the course of his sentence, such that his release ought to be permitted on humanitarian grounds, the executive has the power to deal with that situation, or the Offenders' Review Board can grant parole at any time if the offender is dying or there are other exceptional circumstances (R v Vachalec (1981) 1 NSWLR 351; R v L (CCA (NSW), unreported, 17.6.96); s270 Crimes (Administration of Sentences) Act 1999). Prospects of rehabilitation. 96 I then come to the question of Mr Dolan's prospects of rehabilitation. Mr Dolan has a limited life expectancy. Inevitably the sentence I am obliged to impose for murder must be a significant term of imprisonment. Mr Dolan had a criminal record, although for relatively minor offences. He has a loyal family. They have stood by him. I accept that, for what remains of his life after release, his prospects of rehabilitation are good (s21A(3)(h)). Mr Dolan, nonetheless, will remain vulnerable to alcohol and drugs. He will require greater supervision than usual. That fact, his incarceration on protection and his serious illnesses make it appropriate to make a finding of special circumstances. 97 Murder has always been regarded as the most serious crime in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. The circumstances in which Marcia Dolan died were brutal in the extreme, although the crime must be understood in the context which I have identified. Taking account of that context, the plea of guilty and other significant matters in mitigation, the sentence must nonetheless be substantial. It should date from the time Mr Dolan entered custody, that is the day after the murder, 19 October 2002. 98 GARY MICHAEL DOLAN, I sentence you to a term of imprisonment of 15 years 4 months commencing on 19 October 2002 and expiring on 18 February 2018, with a non parole period of 10 years 3 months. You will be eligible for release on parole on 18 January 2013. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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