Supreme Court New South Wales Medium Neutral Citation: R v Booth [2012] NSWSC 1424 Hearing dates: 25 July, 19 November 2012 Decision date: 23 November 2012 Before: Latham J Decision: Sentenced to 6 years to date from 21 March 2011 expiring 20 March 2017. Balance of term of 3 years expiring 20 March 2020. Eligible for release 21 March 2017. Catchwords: CRIMINAL LAW - sentence - manslaughter - serious case - excessive self-defence - use of firearm Cases Cited: R v Cook [2012] NSWSC 5480 Category: Sentence Parties: Regina - (Crown) Martin John Booth - (Offender) Representation: Counsel L Carr - (Crown) P Rosser QC - (Offender) Solicitors Solicitor for Public Prosecutions - (Crown) Armstrongs Solicitors - (Offender) File Number(s): 2011/91284 SENTENCE 1The offender, Martin John Booth, pleaded guilty on 25 July 2012 to manslaughter in full discharge of an indictment alleging that he murdered James Nolan on 19 March 2011. The plea was accepted by the Crown on the basis of excessive self defence. A further five offences (possess unregistered firearm, possess shortened firearm, possess prohibited drug, possess ammunition without a licence or permit and not keep firearm safely) on a Form 1 are to be taken into account when the sentence for the manslaughter offence is imposed. 2Manslaughter carries a maximum penalty of 25 years imprisonment. The offence has often been described in terms of its protean nature, meaning that the sentences imposed are as varied as the circumstances capable of qualifying at law as manslaughter. The fact that the offender took the life of another young man, with whom he had no direct dispute, by discharging a sawn off shotgun at close range arouses in most members of our community a sense of horror and an expectation that the offender will be severely punished. That sense of horror and that particular expectation is much greater on the part of the victim's immediate family. That is entirely understandable. However, it is an expectation that does not necessarily take account of the circumstances surrounding the offence, the impact of those surrounding circumstances on the offender's state of mind and the wide range of factors that I am bound by law to take into account according to sentencing practice in this state. 3These reasons in no way diminish the value of the victim's life as a son, brother, father and friend, nor do they seek to attribute responsibility for the offence to the victim. They are primarily concerned with an assessment of the offender's criminality and the extent to which his personal circumstances affect the sentence that might otherwise be imposed. The offender's criminality can only be assessed in the context of what he perceived to be a threat of violence towards him from the victim, albeit the offender's response to that threat was excessive in all the circumstances. 4The events giving rise to the offence are sadly typical of a drug culture involving the abuse of amphetamines which appears prevalent in Newcastle. Between 18 and 19 March 2011, a series of SMS messages were sent and received between phones linked to the offender and his partner, Sabina Pinkovai, on the one hand and the sister of the victim on the other. The messages related to the delivery of amphetamines or money owed for the purchase of that drug as between the offender and Ms Nolan. 5In the early hours of 19 March 2011, Ms Pincovai went to Ms Nolan's unit in Toronto. A number of other persons were present including Shane Fields, a friend of Ms Nolan's. A dispute erupted between Ms Pincovai and Ms Nolan and others, resulting in Ms Pincovai attempting to leave the premises. She had trouble starting her car and contacted the offender. The offender arrived at the premises with another male. According to the statement of facts, the offender was armed with a weapon that he was waving about and pointing at people. The offender gave evidence that he went to the premises primarily to assist Ms Pincovai, and that he obtained a bat from his car in response to a threat of violence from Mr Fields. Mr Fields and the offender assaulted each other, although the offender got the better of the fight and Mr Fields was hospitalised with minor injuries. 6At about 6am, according to his evidence, the offender went to the manhole in the kitchen ceiling and recovered a shortened firearm, which he placed against the door jam at the front door. He said that he did so in response to a death threat he received from Ms Nolan after returning to his home. I do not accept his evidence to the effect that he was unaware whether the firearm was loaded. That evidence is inconsistent with an acknowledgment that he was pleading guilty to manslaughter on the basis of excessive self defence. That plea brings with it an acceptance on the part of the offender that he intended to cause grievous bodily harm or death to the victim by the discharge of the firearm, but that his response to the perceived threat was excessive in all the circumstances. Moreover, given the offender's evidence to the effect that death threats were made in the course of the communications from Ms Nolan and others, it is inherently unlikely that the offender would seek to protect himself with a firearm in ignorance of whether it was loaded. 7Further SMS messages were sent from a phone registered to Ms Pincovai to Ms Nolan, and from the offender to Ms Nolan, indicating that the offender would be pursuing Ms Nolan for what she owed him. Ms Nolan replied to the effect that she did not intend to honour the debt. The offender replied "don't start that shit again. You got all the last of it three days ago. Before you tell anyone to go fuck themselves, you did note I was not alone." This was apparently a reference to the presence of a large Maori man in the offender's company at Ms Nolan's home earlier that day. 8At about 11:30 am on 19 March 2011, James Nolan arrived at the premises where the earlier assault had taken place. He spoke with a friend of Ms Nolan's and told her that he intended to "go over and see Boothy and see what the fuck's going on." The victim was told that the offender had a gun and warned him not to go there. The victim replied "I know he's got a gun but if he tries to start on me, I'll take out his dog. You know how much he loves her." 9Pat Nolan, the victim's brother, first went to the offender's house about midday on 19 March 2011. He went there to purchase amphetamines. He injected the drug whilst he was at the offender's home. The offender mentioned that there was a "feud" with Ms Nolan and said that "he had been to Jenny's place that morning and some bullshit happened over drugs". The offender told Pat Nolan that there had been a flight and that he was armed with an extendable baton, not a gun. 10After leaving the offender's home, Pat Nolan spoke to his brother, the victim, about the events of that morning. The victim said that he believed the offender had been armed when he arrived at the home earlier that day. Pat Nolan told his brother that the offender had denied being armed. He suggested a meeting with the offender so that the victim might hear his version of the events. The victim indicated he was willing to attend a meeting and he arranged to meet his brother at a friend's home later that day in order to go to the offender's home together. 11Sometime later, Pat Nolan returned to the offender's house to swap a set of wheels for a quantity of amphetamines. Pat Nolan again spoke to the offender about the events of that morning. The offender told Pat Nolan that "Jimmy was coming to bash him". Pat Nolan said he would speak to his brother and may return later that evening. 12On this occasion a friend of the offender, Mr Browning, was present at the offender's home. He heard Pat Nolan say "there's going to be trouble if you stop, if you stop like you're doing, like if you're not." After Pat Nolan left, the offender told Mr Browning about the assault that morning. The offender said that "Jimmy was coming back to sort him out what happened from this morning". Before Mr Browning left the premises, the offender received a phone call which appeared to unsettle the offender. The offender said "I can't believe what's happening - he reckoned that Jim and another bloke apparently was coming over." Later that evening, Mr Browning saw the offender answering text messages and phone calls on his mobile. He saw that the offender was becoming angry and that the offender said during one conversation "just wake up to yourself" and "youse are not welcome here". After one of these conversations the offender told Mr Browning "Jimmy and one of his mates was on his way." 13Shortly after 8 pm and again at about 8:30 pm, Pat Nolan rang the offender to tell him that he and his brother were on their way to the offender's home. When they arrived, Pat Nolan went to the house and spoke with the offender. He asked whether the offender wanted to come out and see the victim or whether the victim was to come in to see the offender. There were other persons at the house at this time. The offender said that he would get rid of the visitors and that they should return in 10 minutes. 14At 8:44 pm, Pat Nolan rang the offender to tell him that they were on their way back. On this occasion Pat Nolan and the victim got out of the car and went to the front door. The screen door was open although the wooden door to the premises was closed. Pat Nolan knocked on the door and the offender called from inside "who's with you?" Pat Nolan replied "me brother" whereupon the offender opened the door a short way. 15According to a statement made by Pat Nolan during a demonstration to police at the offender's home, almost as soon as the offender opened the door, his brother came past him saying something like "oh you're home you dog". The offender moved back and to his right as the victim attempted to enter the premises. At that time, the victim was armed with a baton which was attached to his wrist by a strap. The offender was holding the shortened firearm at the side of his body, apparently covered with a cloth. The offender raised the firearm and deliberately discharged it at the victim. The projectile struck the victim in the lower chest region causing almost instantaneous death. The muzzle of the shot gun was between 50 cm to 1 m from the victim when fired. It would appear from a head wound suffered by the offender that the victim had succeeded in striking a blow to the offender before the firearm was discharged. 16Mr Browning provided a statement indicating that Pat Nolan came to the offender's home on three occasions. On the first occasion, Pat Nolan told the offender "Jim is on his way so the best thing is for us not to be here" and "so prepare to lock up or go out - he is very angry with you ... he is going to deal with you." The offender told Mr Browning "there is trouble coming". Mr Browning says that on the second occasion, Pat Nolan spoke to Ms Pincovai through the closed door, telling her to keep the door locked, "just say you're not at home, I'll say Martin has gone out" and "I'll be back in an hour". Mr Browning says that the offender was in the kitchen cooking at this time and that Ms Pincovai went and spoke with him. Mr Browning says that on the third occasion, approximately 5 min later, the offender went from the kitchen to the timber door, opened it and said "what are you doing here?" 17Mr Browning gave an account of the actual confrontation between the offender and the victim which is considered unreliable in certain respects and which needs no further elucidation here. 18The offender was arrested on 21 March 2011 in a car park adjacent to a shopping centre. According to his evidence, he was in the process of consulting a solicitor with a view to surrendering himself to police. At the time of his arrest, the offender said "it was self-defence, they threatened my missus". The offender later told members of his family "I've got nothing to worry about, I did what I had to do, they ran in on me". 19The offender's home was searched and two firearms, a quantity of ammunition and a small quantity of cannabis were found. These are the subject of the Form 1 offences. The Objective Gravity of the Offence 20There are a number of features of the offence that contribute to an assessment of its objective gravity. The offender, on his own acknowledgement, had no dispute with the victim. The victim's brother was attempting to act as peacemaker, to the knowledge of the offender. Moreover, the offender had ample notice that the victim and his brother were coming to his home, yet he chose to confront them with a deadly weapon. The weapon was loaded and at the ready near the front door, where it had been placed early that day. The offender was armed when he opened the door, notwithstanding that he had no objective basis for inferring that his visitors were intent on killing him. Given the proximity of the offender to the victim and the nature of the firearm, I am satisfied beyond reasonable doubt that the offender intended to kill the victim. 21The offender's senior counsel submitted that the discharge of the gun was not a pre-emptive strike and that there was an element of provocation offered to the offender, in that the victim was armed with a baton and was in the act of assaulting the offender when the firearm was discharged. That submission may be accepted if one has regard only to the very short period of time between the offender opening the door and the fatal shot. However, the submission has less merit when account is taken of the whole of the offender's conduct that day. There are many features of this offence that distinguish it from those in R v Cook [2012] NSWSC 480 upon which the offender's counsel placed some reliance. 22I accept that the actual confrontation between the offender and the victim was extremely brief and that it left the offender no time for calm reflection in the face of a sudden and imminent assault. It remains true to say that the killing would in all likelihood not have occurred, but for the offender's resort to the use of a firearm. 23Objectively, it was a wholly disproportionate and excessive response to the threat that was actually offered. There is no basis in the agreed statement of facts for a finding that the offender received death threats from members of the Nolan family. I accept that the offender may have interpreted some of the communications from members of the Nolan family as death threats, but I do not accept that such threats were actually uttered. The SMS messages recovered from the various phones indicate that the offender also made veiled threats towards the Nolans, to the effect that they would be pursued by the offender in order to extract what they owed him, even if that involved the application of force. The height of the explicit threats received by the offender was threats of physical assault, and the offender himself understood that the victim was coming over "to bash him". 24I have sought to stress thus far that this assessment is undertaken objectively, that is, without regard to factors personal to the offender. On this basis, the offence is a serious case of manslaughter, although I would not place it in the "worst case" category. The penalty must also reflect the criminality inherent in the offences on the Form 1. 25That said, there are subjective factors that bear upon the moral culpability of the offender and therefore upon the sentence to be imposed. 26Clearly, the dispute escalated out of all proportion to its origins. The tendency to resort to threats of violence and to actual violence whenever drugs, particularly amphetamines, are at the centre of a disagreement is a regrettable feature of matters coming before the courts of this state. The fact that the offender was a user, and apparently a supplier, of amphetamines made him susceptible to ill-considered and irrational responses to the threats he received, and which he may have misinterpreted. That in no way excuses his behaviour, but it does go some way towards explaining it. 27It is also relevant to an assessment of his moral culpability that he had injected two points of "ice" approximately 2 hours before the victim's arrival at his home. The offender's father in his evidence described the offender's general behaviour since 2006 in terms that suggested the offender was pervasively paranoid. The offender's heavy use of amphetamines since the death of his younger brother in 2001 no doubt contributed significantly to this state of mind. 28Whilst these are matters that I take into account, they cannot in my view ameliorate the sentence otherwise appropriate to the offence by more than a modest amount. The fact remains that the offender chose a drug abusing lifestyle as a way of dealing with the pain of his brother's death and the guilt that he felt over the last interaction he had with his brother. The offender was 27 years of age when his brother died in a car accident. Whilst I accept that was a traumatic event which triggered clinical depression, the offender was an adult who consciously embarked upon sustained drug taking. Dr Westmore's report indicates that the offender was diagnosed with cannabis and amphetamine dependence by the Hunter New England Mental Health Service within 6 months of his brother's death. The offender also claims to have seen a psychologist over the last 10 years on about 20 occasions but the offender does not appear to have benefited from any medical intervention. The Offender's Background. 29The offender is presently 38 years of age. His parents separated when he was five or six years of age. He has an older sister and a younger half brother, the product of his mother's second relationship. He lived with his mother following his parent's separation and did not see his father for several years. He resumed regular contact with his father in about 2006. 30He completed his secondary schooling to year 10, and began working as a rigger in the building industry until his brother's death in 2001. Immediately prior to his brother leaving the family home and crashing his car, the offender and his brother had an argument, in the course of which the offender said "I wish you were dead". The offender apparently heard of the car accident and went to the scene to investigate. He witnessed his brother's death. This appears to be the genesis of a long-standing depression and occasional drug induced psychosis. He still becomes tearful on speaking of his brother's death. 31The offender has an 11-year-old daughter, the product of one of three relationships. He has contact with his daughter and with her mother, who remains supportive of him. 32The offender has been unemployed since his brother's death and has made no efforts to secure gainful employment. He has supported himself on a disability pension. Since entering custody, he has expressed a wish to work within his father's courier business on his release. The offender reportedly has a tumour on his left ankle which is yet to be treated. 33The offender has a criminal history commencing in 1995 including convictions for assault, malicious damage and motor vehicle offences. These are of a summary nature and were dealt with by way of fines or recognisances. In September 2003, November 2005 and October 2009 the offender was fined or placed on 12 month good behaviour bonds for offences of possess a prohibited drug. In November 2005 the offender was convicted of possessing ammunition without holding a licence or permit and in November 2009 the offender was convicted of four counts of possess or use a prohibited weapon without a permit. These offences were also dealt with by way of fine or good behaviour bond. Accordingly, this is the offender's first time in custody. 34The offender placed himself on protection because of threats that he received through members and associates of the victim's family. The offender's counsel submitted that the very restricted access to programs and facilities afforded by the offender's protection status hampered the offender's rehabilitation whilst in custody. It was not submitted that the head sentence itself ought be reduced to reflect this factor, rather it was submitted that it was a circumstance warranting the alteration of the usual statutory ratio between the non-parole period and the balance of term. I am prepared to allow a slight reduction in the non-parole period to allow for this factor, and on the basis that this is his first custodial sentence which will necessarily place the offender at some disadvantage in terms of his employment prospects, given his current age and limited work experience. 35I accept that the offender has good prospects of rehabilitation. He has demonstrated genuine remorse and contrition both in the course of his evidence and through the contents of a letter that was tendered to the Court. If the offender makes good his promise to reject his lifestyle to date it is unlikely that he will re-offend. However, that very much depends on the strength of the offender's resolve on his release to the community. He will require a measure of supervision and assistance to achieve that aim. 36The plea of guilty was entered on the date fixed for trial. The offender's counsel maintained that the plea was only entered after he came into possession of Crown material that he had not seen until the eve of the trial. Be that as it may, the Court of Criminal Appeal has made abundantly clear that generally speaking the discount for the plea of guilty is assessed by reference to the utilitarian value of the plea, regardless of the reasons for the timing of the plea. In my view, a discount of 10% is appropriate in the circumstances of this case. 37Taking all of these matters into account, I impose the following sentence. (1)Martin John Booth, you are convicted of the offence of manslaughter. (2)I impose a non parole period of 6 years, to date from 21 March 2011, expiring 20 March 2017. The balance of term is 3 years, expiring 20 March 2020. You are eligible for release on 21 March 2017. (3)I have taken into account the offences on the Form 1 when imposing this sentence and I dismiss two charges, namely possess barrel for firearm with licence and receive stolen property. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2012