R v Bowie

R v Bowie - [2023] NSWSC 207 - NSWSC 2023 case summary — Zoe

[4]

Facts on Sentence

Roxlyn was born in May 1951 to parents Robert and Cecily Padley, who are both now deceased. The offender was born in June 1950.
The offender and Roxlyn married in August 1971 and had three children: Brenda, Charlene, and Warren. Charlene tragically died not long after she was born, an event that was deeply distressing for the deceased.
On 13 January 1975, the offender joined New South Wales Ambulance. He moved with Roxlyn to Walgett in March 1978 and resided at 93 Euroka Street. Whilst there, the offender was involved in several extra-marital affairs. Roxlyn stayed at home and became the full-time carer to their two children.
In May 1982, the offender commenced a sexual relationship with Ms Gail Clarke, who had been holidaying in Walgett for several weeks before returning to her home in Sydney. Between 24 May 1982 and 27 May 1982, the offender was in Sydney where he continued his affair with Ms Clarke.
On Saturday, 5 June 1982, at about 5:00pm, the offender finished his shift at the Ambulance Station and returned home for a short time. He gave several accounts of seeing Roxlyn and telling her that he would be going for a drink at the Imperial Hotel in Walgett. He said that Roxlyn replied that if he went out drinking, she would not be there when he returned home. The offender went to the Imperial Hotel before he attended the Walgett Returned and Services League Club (RSL) to continue drinking.
The offender's account at the Coronial Inquest into the death of Roxlyn Bowie (being evidence admitted at his trial) was that at about 11:00pm, on the 5 June 1982, he returned home and found that Roxlyn was not there. The children were asleep in their beds. He looked through the house before going into the backyard and speaking with Eddy and Ruth Ovens, who resided in a caravan in the rear yard of 93 Euroka Street. Eddy and Ruth Ovens saw the offender that night. He searched the caravan, apparently looking for Roxlyn.
Mrs Ovens accompanied the offender into the house. Upon entering the house, she found a letter underneath a sugar bowl in the middle of the dining table, written by Roxlyn. This letter was referred to at trial as the "Dear John" letter. It stated: "Dear John, I am leaving you with the kids for good. I've thought about it for a long time now and tonight I finally did it. I've packed a few things and you can have the rest. I don't want anything to remind me of you or the kids. Don't try and find me, because I will never come back to you. Bye Roxlyn."
After the letter was discovered, the offender went to the pub, bought six cans of beer, attended the caravan, and continued drinking with Mr and Mrs Ovens. With the assistance of Mr Ovens, the offender drove to several friends' houses looking for Roxlyn, however, no one had seen her.
On the morning of Sunday, 6 June 1982, Mr and Mrs Ovens' son, Brian Coleman, saw the offender carrying a shovel from the front of his property to the rear yard. The offender claimed that on this date, he attended Walgett Police Station to report Roxlyn as missing.
On, or about, 8 June 1982, Mrs Padley, the deceased's mother, received a letter, postmarked 7 June 1982 from Coonamble Post Office. This letter was referred to at the trial as the "Dear Mum & Dad" letter. It stated: "Dear Mum & Dad, Just a short note to say that I have left John and the kids for good. I'm making my way to South Australia or Western Australia to start a new life. Please don't be hard on John because it wasn't his fault that I left. I will write again when I settle down. Love Roxlyn."
Numerous people who knew Roxlyn described her as a doting mother who loved and lived for her children. Shortly before she went missing, she was planning a birthday party for her two-year-old son, Warren, which was to be held at the family house the week following her disappearance.
In the days following Roxlyn's disappearance, the offender contacted Roxlyn's friend, Noelene Knight, and told her that Roxlyn had left him and the children. The offender told Mrs Knight that he had been at the Imperial Hotel. When he got home, he told Roxlyn that he was going out drinking and Roxlyn replied: "If you go back John, I won't be here when you come home".
Mrs Knight subsequently handed the phone to her husband, Brian Knight. The offender asked Mr Knight to come to Walgett to collect Brenda and Warren, and drop them at Roxlyn's parents' house. Mr Knight agreed and collected the children in the days after. The offender never contacted Roxlyn's parents to advise them that Roxlyn was missing.
On 11 June 1982, the offender applied for a transfer to Bankstown Ambulance Station, which was granted. He had no ties to the Bankstown area, except to Ms Clarke, the woman he had begun an affair with. The request to transfer came just days after Roxlyn went missing.
On 21 June 1982, the offender attended the residential address of Ms Clarke at Condell Park. He sought to continue his relationship with her, however, she rebuffed him.
On 25 June 1982, Roxlyn's cousin, Ms Margaret Rule, travelled to Walgett to commence inquiries on behalf of Roxlyn's parents. Ms Rule attended Walgett Police Station to officially report Roxlyn as missing. A police investigation subsequently commenced.
In light of the jury verdict, I proceed to sentence the offender on the basis that he murdered Roxlyn on or about 5 June 1982. Extensive searches conducted in Walgett and surrounding towns have failed to locate Roxlyn's remains.

[7]

Finding

Although I declined to give a direction at trial in accordance with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (a Shepherd direction) (see R v Bowie (No 4) [2022] NSWSC 1505), the jury were directed as follows: "In respect of the third element, namely, that at the time he caused her death by deliberate act, or acts, he had an intention to kill, the Crown relies upon two inferences that the Crown says you will draw from the established facts. Firstly, that you would be satisfied that the two letters written by Roxlyn Bowie were written under duress, coercion, or instruction by the accused and that they demonstrate a degree of planning or premeditation. Secondly, that the accused's motive to kill Roxlyn Bowie was to get rid of her so that he could pursue an unfettered relationship with Gail Clarke. You must scrutinise very carefully the evidence upon which you are asked to draw the inferences in support of an intention to kill on the part of the accused. It is most important that you understand the before you could return a verdict of guilty to murder, the Crown has to establish each of the elements beyond reasonable doubt, including the element of the accused's state of mind. Here, what the Crown has to prove beyond reasonable doubt in respect of the accused's state of mind, before you could return a verdict of guilty to murder, is at the time that he caused Roxlyn Bowie's death, he did so with an intention to kill her."
The Crown case at trial was that the offender voluntarily and deliberately committed an act or acts which caused the death of Roxlyn, with an intention to kill her. Although the Crown case relied on numerous circumstances to establish that Roxlyn was in fact dead, and that her death was caused by the offender, the Crown case in respect of an intention to kill was limited to two specific circumstances, namely, motive and "coercing" the deceased to write the two letters.
I am satisfied beyond reasonable doubt that the offender was motivated to kill his wife in order to have a "serious" and "unfettered" relationship with Ms Clarke. I make that finding for the following combined reasons: 1. the offender had a sexual relationship with Ms Clarke; 2. Ms Clarke told police that the offender wanted a serious relationship with her; 3. the offender was with Ms Clarke on the day of the deceased's birthday; 4. the relationship between the offender and the deceased was deteriorating; and 5. the offender applied for a transfer to the very suburb where Ms Clarke was residing, and moved from Walgett to Sydney to take up that position within a short period after Roxlyn's disappearance.
The fact that Ms Clarke did not want a relationship with the offender does not detract from his feelings for her.
I am also satisfied beyond reasonable doubt that the offender "coerced" or "directed" the deceased to write the two letters. The expert evidence established that the exhibit letters were written slowly and deliberately and were unlike Roxlyn's sample written material. Furthermore, some of the letters and words in the exhibit letters were not consistent with Roxlyn's style of writing and appeared to be very similar to the offender's style of writing, giving rise to an inference that she was made to copy the contents. Expert evidence was also led about the indentation in the exhibit letters which did not match Roxlyn's pattern of variable indentation.
In addition, there was circumstantial evidence to support a contention that the exhibit letters were not written voluntarily by the deceased. Firstly, the evidence established that the deceased was a devoted and loving mother, unlikely to have abandoned her children because she had simply had enough of the relationship with her husband. Secondly, her disappearance on a Saturday night from a remote town in western New South Wales, in circumstances where there was no public transport out of town at the relevant time, and no reasonable possibility that she had spent the weekend somewhere before leaving town on the Monday, is circumstantial evidence supporting the contention that the offender directed or forced the deceased to write those letters so that he could later claim that she had simply abandoned him and her children.
I am satisfied, therefore, that there was a level of planning. I cannot, however, determine with any certainty as to when the offender directed or coerced the deceased to write the letters. It could have happened on the very day that he killed her. To the extent that there was a level of planning, it was not extensive or sophisticated.

[10]

Imposition of a Life Sentence

During the sentencing proceedings, the Crown submitted that this is not an example of the offence of murder that calls for the imposition of the maximum penalty, namely, life imprisonment.
Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) relevantly provides: (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
The proper approach to s 61(1) of the CSPA was considered in Rogerson v R; McNamara v R [2021] NSWCCA 160. The Court noted, at [634], that: "The proper construction of s 61(1) arose recently before this Court, constituted by five members, in CC v R; R v CC [2021] NSWCCA 71. Three members of the Court determined that it was not necessary to decide whether s 61(1) permitted a two-stage approach, concluding that the sentencing judge, who had not imposed a life sentence, did not adopt that approach: at [50] per Bathurst CJ; [73] per Hoeben CJ at CL; and [96] per Wilson J. Hamill J (at [93]) adhered to the view he stated in Qaumi. Adamson J held that the correct approach was that stated in R v Harris (Bell J) as approved in R v Harris (CCA), stating as follows (at [81]-[83]): "81 …The focus of the court's attention in s 61(1) is the offender's 'level of culpability in the commission of the offence'. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender's background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender's level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing: see R v Burke [1983] 2 NSWLR 93 at 101C-D (Nagle CJ at CL). Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others. … 83 If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender's level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge." (emphasis added)
Although the offender's culpability is serious, it is not so extreme such that the community interests in retribution, punishment, protection, and deterrence, can only be met through the imposition of a life sentence.

[19]

Summary of Julie Dombrowski's Evidence at the Sentencing Proceedings

Ms Dombrowski was called to give evidence during the sentencing proceedings. In cross-examination, she conceded that, after having regard to the letter authored by Adam Riddell, Acting Governor of the Metropolitan Special Programs Centre (MSPC), the offender's status in the Special Management Area Placement, is no more or less restrictive than mainstream custody. Ms Dombrowski remained of the opinion that the offender's diagnosis of Type II diabetes, sleep apnoea, and an unspecified heart condition, would make conditions in custody more onerous.
When asked about the offender's family history and exposure to domestic violence, Ms Dombrowski found no material difference between the offender's account of "occasionally" or "regularly" witnessing violence perpetrated by his father against his mother. She went on to give evidence that the offender demonstrated, later in life, a pattern of interpersonal relationship difficulties resulting from witnessing violence at home. She did not consider the regularity with which he witnessed the violence as a material factor. A more telling clinical tool is the nature of interpersonal relationships that he formed in adulthood.
Ms Dombrowski maintained her opinion that the offender's alcohol use and insecure attachment style (and associated difficulties managing emotional dysregulation during interpersonal conflict and distress) are likely significant factors contributing to the subject of his offending.
In my view, there is insufficient evidence to establish a nexus between the offender's psychological functioning and the commission of the offence such as to reduce his moral culpability or reduce the weight to be afforded general and specific deterrence.
While I accept that the offender was drinking heavily in the relevant period, I am unable to find that his alcohol consumption was connected, in any way, to the commission of the offence. I, therefore, do not take into account the offender's psychological profile or excessive drinking to reduce his moral culpability, or the weight to be afforded general and specific deterrence and denunciation.
I have taken into account the contents of the psychological report, including the offender's reported history of excessive alcohol use and insecure attachment style, as matters relevant to his subjective case and the process of instinctive synthesis that I must engage in to arrive at a proportionate sentence.

[20]

Age and Onerous Conditions in Custody

There is no disagreement as to the relevant principles applicable in cases where the offender is of an advanced age: see Gulyas v Western Australia [2007] WASCA 263; 178 A Crim R 539; Liu v R [2023] NSWCCA 30. Where advanced age is coupled with some other factor, for example when there is an age-related mental impairment, allowance may be made for that factor by virtue of a reduction in moral culpability. Account may also be taken of hardship for the offender arising out of his knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of a useful life after release. It has also been said that there are factors associated with advanced age that justify a less severe sentence than might otherwise be the case having regard to the proper weight afforded deterrence and denunciation.
In the present case, it is accepted on behalf of the offender, that his age, namely, 72, is not such as to enliven these considerations. The offender does, however, rely upon more onerous conditions in custody by virtue of a combination of factors, which include age and physical ailments. The offender's physical conditions require medication and monitoring, but do not require specialist treatment or modifications.
I accept, as a matter of common sense and human experience, that an ageing prisoner would have more complications in custody as their medical needs increase, a matter that is very likely to render conditions in custody more onerous than they are for a younger, fit individual. A prisoner has no control over the frequency or quality of medical assistance provided to him or her. In the community, an individual has the capacity to make decisions and exercise control over access to medical professionals and medication.
Furthermore, as acknowledged by the Crown in written submissions, the Court would take into account that the COVID-19 pandemic has caused some restriction on the offender having face-to-face contact for a period of time: see Scott v R [2020] NSWCCA 81; McKinnan v R [2020] NSWCCA 106, although, given the length of the period of imprisonment that will be imposed, it cannot be assumed that such restrictions will continue to apply.
It is difficult to predict the impact of COVID-19 on prisoners in the years to come. While not a material consideration, the restrictions placed on prisoners as a result of COVID-19 is also relevant to onerous conditions in custody.
The extent to which these onerous custodial conditions mitigate sentence in this case is modest, however, having regard to the fact that the offender's medical conditions are adequately treated in custody at present.

[22]

Delay

There has been a delay of some 40 years between the commission of the offence and sentence.
The impact of delay when sentencing an offender is a long-standing principle enshrined in R v Blanco (1999) 106 A Crim R 202; [1999] NSWCCA 121, at 306[16]: "The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach."
There is no evidence that the offender has lived in a state of uncertain suspense during the last four decades. His New South Wales criminal record demonstrates that the last conviction was in 1992 and that he has not reoffended in this State. His Queensland criminal record discloses sexual assaults and domestic violence related offending that he was charged with in 2017 and sentenced for in 2019. While there was a gap of many years between the offending, the offender has committed serious offences in more recent times.
The relevance of delay, in my view, is in respect of the application of section 21B of the CSPA, which relevantly provides: 21B Sentencing patterns and practices (1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing. (2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing. (3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if - (a) the offence is not a child sexual offence, and (b) the offender establishes that there are exceptional circumstances. (4) When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing.
Schedule 2 of the Crimes (Sentencing Procedure) Amendment Act 2022 (NSW) provides that the amendments made to the CSPA "do not apply to proceedings that commenced before the commencement of the amendments".
In Bektasovski v R [2022] NSWCCA 246, Kirk JA held (with whom Beech-Jones CJ at CL and myself agreed), at [51], that: "It is open to construe the phrase "proceedings the hearing of which began before the commencement of the amendment" as referring to proceedings on indictment from the time an accused is first arraigned in the court which goes on to hear the substantive trial of the accused."
In this case, the offender was arraigned in the Supreme Court of New South Wales on an amended indictment prior to the commencement of the trial, namely, on 26 September 2022. Accordingly, s 21B of the CSPA does not apply to the offender and he is to be sentenced according to the prevailing sentencing practices at the time of the offence.
The practical consequences of that change in sentencing patterns for offences of murder were set out by Grove J in R v Stone [2004] NSWSC 224, at [47]: "…I am bound by authority to apply a principle that where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, then the sentence now to be imposed should reflect, not the later, but the earlier regime…"
I accept, as a general proposition, that sentences for murder have increased considerably in the years since 1982: see R v Hickson (No 4) [2020] NSWSC 340 at [72]; R v Smith (No 4) [2011] NSWSC 1082 at [23] - [24]; R v Bunce [2007] NSWSC 469 at [93]. The introduction of standard non-parole periods for offences of murder committed after 1 February 2003, has been a significant factor in that increase.
That said, the comparative cases that have been provided to me, and which will be addressed below, do not necessarily establish a sentencing practice or pattern. By way of observation only, one wonders about the reasonableness of the requirement that a court must sentence in accordance with sentencing patterns and practices at the time the offence was committed (here 1982), where societal attitudes to domestic relations and domestic violence have changed considerably.
The offender relied upon three decisions of the Supreme Court of New South Wales in respect of sentences that were imposed for "historical" offences of murder. The following table sets out the penalties imposed in each case. Case Sentence R v Dukagjini (No 2) [2021] NSWSC 1668 20 years' imprisonment, with a non-parole period of 13 years' imprisonment. R v Hickson (No 4) [2020] NSWSC 340 22 years' imprisonment, with a non-parole period of 15 years' imprisonment. R v Warwick (No 94) [2020] NSWSC 1168 Life imprisonment without parole.

[32]

Special Circumstances

The offender urges a finding of special circumstances. The Crown submitted that because of the length of the sentence to be imposed, the usual period of parole will be more than adequate to address the offender's reintegration into the community.
A consideration of whether special circumstances exist, is not confined to a longer than usual parole period for the offender to readjust to life in the community. There are a number of factors that could justify a finding of special circumstances. There is no exhaustive list. The question as to whether such a finding is made will depend upon the circumstances of the individual case.
For the reasons set out above, I am satisfied that the conditions of custody will be more onerous on the offender particularly as he ages. I have taken that into account in determining the appropriate term of imprisonment. I am not persuaded that a finding of special circumstances should be made such as to vary the statutory ratio. The offender will be on parole for a lengthy period in any event.
The sentence I am about to impose is the result of a process of instinctive synthesis, which includes consideration of the objective seriousness of the offence, the offender's subjective case, and the various purposes of sentencing. Clearly, a lengthy period of full-time imprisonment is warranted.
John Douglas Bowie, for the murder of Roxlyn Bowie, on, or about, 5 June 1982, at Walgett or elsewhere in the State of New South Wales, I sentence you to a non-parole period of 18 years, commencing on 5 October 2019, and expiring on 4 October 2037, with an additional term of six years' imprisonment. The total term of imprisonment is 24 years, expiring on 4 October 2043. The first day upon which you will become eligible for parole is 4 October 2037.
In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), I note that the provisions of that Act have potential application to you. I request that the offender's legal representatives advise him of the existence of the Act and its application to this offence.

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Judgment (33 paragraphs)

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Cases Cited (38)

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