R v Booth

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.