R v Doolan

Supreme Court of NSW|2023-06-30|Before: Lonergan J

JUDGMENT

On 20 February 2023, Brendan Thomas Doolan was arraigned before a jury on an indictment before a jury panel and me. The indictment contained alternative charges of murder and manslaughter, or unlawful killing, of Bradley Dixon at Forbes on 23 January 2021. The offender entered pleas of not guilty to both charges.
On 13 March 2023, the jury returned a verdict of murder.
The offence of murder carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years.
Evidence was taken on sentence and submissions provided on 30 June 2023.

The deceased Bradley Dixon

At the proceedings on Sentence on 30 June 2023 a quiet and respectful group of grieving friends and family of Mr Dixon attended court. Bradley's sister Loretta bravely read the touching victim impact statement prepared by Bradley's parents, Wendy and Barry. The loss of their only son was clearly overwhelming and the circumstances so very distressing for them and a terrible loss to the family and everyone who loved him.

The facts of the offending

The principles to be applied in fact finding after a jury verdict were summarised by the High Court (references omitted) in Cheung v the Queen (2001) CLR 1; [2001] HCA 67 ("Cheung") at [14]: "[14] In Isaacs the Court of Criminal Appeal summarized certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority): 1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury.… 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings.… 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. … 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender.… "
I am mindful of what was also said at [5] of Cheung: "[5] The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace."
The Crown case here depended significantly on the evidence of Corey Bouwens ("Mr Bouwens") whom I accept was present during the events that caused Mr Dixon's death. The jury's verdict means that they must have accepted the evidence of Mr Bouwens that it was the offender, and only the offender, who inflicted the blows that caused the death of Mr Dixon. It does not mean that the jury accepted every single aspect of Mr Bouwen's evidence, nor am I required to accept every single aspect of Mr Bouwen's evidence. He was in many respects an unsatisfactory witness, but I am constrained by the verdict and what that verdict, by necessary implication, reveals the jury must have accepted beyond reasonable doubt.
In the early 2000s, the offender's mother Trina Doolan met Mr Dixon through his sister. Trina did not hear from Mr Dixon for many years, but on 18 January 2021, he called her and asked if he could stay at her house at [REDACTED], Forbes as he was living in his car at the time. She agreed. At around 10:30pm on 20 January 2021 Mr Dixon arrived at Trina's house. He told her that he did not want anyone to know that he was staying there.
The offender told Trina that he had heard that Mr Dixon "was a paedophile" and that he did not want Mr Dixon staying at Trina's house and that he would not visit her whilst Mr Dixon remained there.
On the evening of 21 January 2021, Trina told Mr Dixon that she would rather he found somewhere else to stay. The next morning, 22 January, Trina left to go camping at Lake Conjola with her daughter and some of her grandchildren.
At about 5:00pm, the offender finished work and had a beer with his boss before going home and having more beers with Mr Bouwens, who was staying with the offender at the time, and some female friends. The offender and Mr Bouwens had been friends for some years. Mr Bouwens estimated that he and the offender drank about six to seven full strength beers each at the house.
They were both dropped off at the Post Office Hotel at about 10:30pm where there was a gathering of friends farewelling Caitlin Northey. Both the offender and Mr Bouwens consumed, on Mr Bouwens' estimate, about ten drinks each at the Post Office Hotel.
A CCTV compilation played to the jury at the trial showed the offender, Mr Bouwens and others consuming drinks and appearing to be happy, talking, laughing and dancing and having a good time at the Post Office Hotel before leaving and walking to the Commercial Hotel at about 12:40am on 23 January 2021. It was evident on the CCTV footage that Mr Bouwens was wearing a "moonboot" on his left leg and a thong on his right foot. The offender was wearing shorts, a t-shirt, a cap and thongs.
The offender, Mr Bouwens and others consumed more alcoholic drinks at the Commercial Hotel. Mr Bouwens estimated that was about another six, seven or even more alcoholic drinks at the Commercial Hotel, both beers and Canadian Club. CCTV footage played to the jury shows more good times at the Commercial Hotel until the offender, Mr Bouwens and the rest of the group left the Commercial Hotel at about 3:00am where the group split up, one group going to someone's house to continue the party. I accept that by this time both Mr Bouwens and the offender were intoxicated.
Mr Bouwens, the offender and Daniel Swanston walked to Daniel Swanston's house where Mr Bouwens and the offender each consumed one Canadian Club alcoholic drink. They stayed for about five minutes and left.
Mr Bouwens said that it was his understanding that they were going to Trina's house so that the offender could pick up his swag. Mr Bouwens was unable to state in his evidence why he had that understanding. There was no evidence of any conversation to that effect.
At around 3:00am a friend of both the men, Jennifer Schaefer, received a snapchat video from Mr Bouwens in which she could see and hear that "Corey and Brendan both seeming really happy. Giggling, laughing walking down [REDACTED] Street." She stated that this was near the Catholic Church on [REDACTED] Street which was not far from Trina's house at [REDACTED] Street.
Mr Bouwens said that once they arrived at Trina's house, the offender went to the back of the house and turned the power off to lure the deceased out of the house. Photographs tendered showed that the power box is near the back door and easily accessible. I am however unable to conclude beyond reasonable doubt whether it was the offender who turned off the power, or Mr Bouwens, or whether the power was in fact turned off, but for some reason, Mr Dixon came outside via the back door and stood on the top step.
The offender then punched Mr Dixon in the face with a closed fist approximately five times causing him to bleed from his mouth and nose. The offender told Mr Dixon to get his stuff and leave.
Mr Bouwens alleged that he tried to intervene and told the offender to stop, but that the offender continued hitting Mr Dixon and that the offender pushed Mr Bouwens who almost fell. I am unable to find beyond reasonable doubt that Mr Bouwens in fact tried to intervene, or that he told the offender to stop, or that the offender pushed Mr Bouwens.
Mr Dixon fell over on the steps and the offender then kicked him to his head and face yelling "Get out" and "Leave." Blood spatters on the steps, door and ground in that location provide corroboration for this part of the attack.
Mr Dixon then went into the house to gather his belongings and came outside again. He was near his car in the driveway with a box of items placed on the roof of the car when the offender punched and kneed him, and when he fell, stomped on his head.
Mr Bouwens alleged that the offender used the car and the fence to lift himself up before landing with his feet on the face of the deceased. I am unable to conclude beyond reasonable doubt that this aspect of the attack is true, but I accept that multiple, forceful blows were delivered to Mr Dixon's face and head by the offender whilst Mr Dixon was next to his car.
Mr Bouwens alleged that he again tried to intervene but was pushed back two to three times. I do not accept that evidence of Mr Bouwens.
Mr Bouwens and the offender have a friend, Rickard Radburn, whom Mr Bouwens called a number of times. Mr Radburn said that he heard the calls but turned his phone off, thinking Mr Bouwens was calling him drunk. Mr Bouwens then called Tara Jones, the partner of Mr Radburn. Phone records indicate this call was made at around 3:54am and went for three minutes. Ms Jones stated that Mr Bouwens said "I need Boog. Brendan has gone apeshit and is bashing a fella."
I am unable to conclude on the evidence of Ms Jones and Mr Bouwens what the true content of this phone call was. Both the evidence of Ms Jones and Mr Bouwens surrounding this phone call was in my view elliptical, unsatisfactory and unreliable.
Mr Radburn arrived at [REDACTED] Street very shortly after 3:54am. Mr Radburn rang 000 using Mr Bouwens phone whilst outside [REDACTED] Street. It is established on Ambulance NSW records that this call commenced at 3:55:19am. The call terminated when police arrived. The 000 call was played for the jury. Mr Radburn stayed on the phone until the police arrived. In the 000 call Mr Radburn asserted that he had "been picking up a friend from the pub" and had been driving past and had "seen this fella getting bashed" and that the assailant "took off' as he pulled up.
Mr Radburn and Mr Bouwens both repeated this story to police on interviews later that morning. In his evidence before the jury (and in his second and third police statements), Mr Bouwens stated that the offender was in fact the attacker and that he had run away by the time Mr Radburn arrived, and that the offender ran back and jumped on Mr Dixon's head twice whilst Mr Bouwens stood with Mr Radburn near Mr Dixon, who was at that stage laying on the ground in the driveway.
Mr Radburn said in his second statement that the offender came back, grabbed Mr Dixon, told him to "get up" and jumped on him twice.
I do not accept beyond reasonable doubt that the accounts of this further attack are true. The 000 call was played again for Mr Radburn in Court during his evidence, at his request, and he was unable to identify when during the call the offender returned and attacked Mr Dixon again in circumstances where Mr Radburn claimed to be standing next to Mr Dixon, and having to push the offender off Mr Dixon in an effort to prevent the further attack.
Mr Radburn alleged that he and Mr Bouwens (in the time period that covered the duration of the 000 call) also went for a drive to look for the offender. I do not accept that evidence. Mr Bouwens did not mention this in his evidence, and there is no sound consistent with a car being entered and driven during the progress of the 000 call, which Mr Radburn said spanned from the moment he arrived to when the police arrived.
The police radio service broadcasted information about an assault at [REDACTED] Street at about 3:58am and Constable Moore and Snr Constable Rolfe arrived there some time shortly after 4:05am. They saw two males waving their arms above their head and a person lying at the rear of a Toyota Camry parked in the driveway at [REDACTED] Street. The male was unconscious, not breathing and was without a pulse. He was moved onto the grass and CPR begun. Paramedics arrived soon after and continued resuscitation efforts, but Mr Dixon was unable to be revived and was declared deceased.
Mr Bouwens and Mr Radburn left [REDACTED] Street and returned to Mr Radburn's house. Both said that there was no conversation about what had occurred. They were taken from there the next morning by Snr Constable Townsend at about 8:00am to provide statements at the police station. Both of the men gave false statements alleging that they did not know who the assailant was.
Later in the day they returned to the police station after being told by Mr Radburn Snr that they had to tell the truth. Mr Radburn and Mr Bouwens indicated that they had lied in their first statements, and that they knew the assailant was Brendan Doolan.
An autopsy was conducted by Dr Du Toit Prinsloo on 27 January 2021. Her evidence, which was not contested, concluded that there had been multiple blunt force injuries to the head of Mr Dixon, but she was unable to say how many or which of them, or what combination of them and the resultant damage to the deceased's brain, caused his death. She noted the following injuries: extensive bruising to the forehead, eyes and left cheek, diffuse scalp haemorrhage, subarachnoid haemorrhage, contusions to the temporal cortex of the brain and blunt force defensive-type injuries to the forearms. She concluded that the cause of death was blunt force injury to the head.
The effect of the jury verdict is that they were satisfied beyond reasonable doubt that it was the accused, and the accused alone, who delivered all of the blows to Mr Dixon, causing his death.

Principles of sentencing

The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") are: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to denounce the conduct of the offender; 7. to recognise the harm done to the victim of the crime and the community.

The objective gravity of the offence

I am required to make an assessment of the gravity of what the offender has done, leaving aside the question of how and why he came to do it, although in this case, as in others, those matters can coalesce to an extent.
As observed by Button J in R v Cadman [2019] NSWSC 634 at [14]: "[14] Of course, every murder is an offence of the utmost gravity, featuring as it does the criminal taking of human life in the most serious circumstances known to law. Nevertheless, the criminal law calls upon me to make some assessment of where this murder fits into the spectrum of all murders generally, not least so that I can sensibly take into account the maximum penalty and the standard non-parole period pronounced by Parliament."

Intent to kill?

The Crown submitted that I would be satisfied that there was an intention to kill because of the sustained nature of the attack, principally to the head of the deceased. Even if I were to instead find that intent rose no higher than an intent to inflict really serious physical harm, the Crown submitted that there is little difference in the offender's moral culpability, given the circumstances of the offending.
Mr Broadbent submitted that it was open to conclude beyond reasonable doubt that the intent was to cause really serious physical harm, not to kill Mr Dixon, although it was accepted that the Court must find that there were multiple blows inflicted to Mr Dixon's head.
Having carefully considered all the evidence, I am not satisfied that there was an intention to kill held by the offender. There were punches to the head and face inflicted while Mr Dixon was on the doorstep, and I accept there were a number of punches to the face, and it may well have been as many as five to the face at that point of the attack. I accept that Mr Dixon fell over and that a number of kicks were inflicted to Mr Dixon's head whilst he was on the ground near the back door. I also accept that there were further forceful kicks and stomps to Mr Dixon's head when he returned outside and was near his car in the driveway.
I do not accept, as asserted by Mr Radburn and Mr Bouwens, that the offender ran back whilst the 000 call was in progress and jumped twice on Mr Dixon's head whilst he lay on the driveway.
Regardless, the attack was prolonged and violent and in circumstances where Mr Dixon was obviously trying to leave as requested. This does not mean however that given the two different "stages" of this beating, (that is the doorstep area, and later next to the car), that I must find that the offender's intent somehow converted into an intention to kill. There is, in these circumstances, a lesser moral culpability than would be the case if I concluded that there had in fact been an intention to kill.

Vigilante offending?

The Crown submitted that this was vigilante offending and that the offender had a "hatred" of the deceased because he believed that the deceased had committed sexual offences against a child. The courts have emphasised the important role of general deterrence in such crimes, so that people understand that they "cannot purport to take the law into their own hands by exacting violent retribution against people perceived to be responsible for criminal activity": R v Kaine (No. 2) [2013] NSWSC 1824 at [45] per RA Hulme J.
Mr Broadbent submitted that even if I am satisfied beyond reasonable doubt that the attack was an act of vigilantism, that explains motive and so may indicate a lack of need for specific deterrence in circumstances where the act is unlikely to be repeated.
I am however not convinced that there is sufficient evidence upon which to safely find that the offending was vigilante in nature. Given that this would be potentially an aggravating feature, I would need to be satisfied beyond reasonable doubt that this was in fact the motivation for the offending. The demanding that Mr Dixon leave his mother's house does not have to have as its basis that it was because he was a person known to have been involved in committing sexual offences against a child. There is no evidence that the offender "hated" Mr Dixon, although he clearly was not happy that Mr Dixon was there and wanted him to leave his mother's home.
There is no evidence of any articulated plan or discussion about going to Trina's house at all, let alone planning to go there to seriously injure Mr Dixon. It seems to have been a spur of the moment decision to go to the house. The snapchat to Ms Schaefer sent not long before arrival at Trina's house in which the offender and Mr Bouwens were laughing and giggling on [REDACTED] Street also suggests that the offending conduct was spontaneous and unplanned. Accordingly, I put the issue of possible vigilante offending entirely to one side.
The taking of the life of another person is a profoundly serious matter. There is no doubt that this was a prolonged and violent beating, but one that was not planned and was delivered without any intent to kill. This is an important distinction in the circumstances here. I have concluded that the offending is in the lower end of the mid-range. Obviously, a sentence of full-time custody of a significant length must be imposed.

Intoxication

Whilst a sentencing court is entitled to refer to an offender's intoxication as providing an explanation for the context in which the offending occurred, the court cannot use that intoxication as a factor ameliorating or reducing the offender's culpability for the offending because he was intoxicated, whether the intoxication operated to compromise his judgment, or his assessment of the surrounding circumstances.
As correctly pointed out by the Crown, s 21A (5AA) of the Crimes (Sentencing Procedure) Act provides that there is a special rule for self-induced intoxication, (which this clearly was). In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor and I have not done so.

Aggravating and mitigating factors: s 21A Crimes (Sentencing Procedure) Act

The offender has one conviction for violence on his record from May 2010 which disentitles him to leniency, and under s 21A(2)(d) is considered to be an aggravating factor. I note however that this is the only conviction (other than some driving offences) and occurred over ten years before this offending.
The offence occurred at the home of Trina Doolan, where Mr Dixon was, at that point at least, present with Trina's permission. This is an aggravating factor under s 21A(2)(eb).
A mitigating factor is that the offence was not part of a planned or organised criminal activity: s 21A(3)(b). As I have said, I am satisfied to the relevant standard that the evidence indicated that it was very much a spur of the moment event.

Subjective circumstances

The offender is 33 years old and was 30 at the time of the offending. The following information is taken from the report of Dr Nielssen, psychiatrist, who assessed the offender on 17 May 2023. Dr Nielssen was also provided with the offender's Justice Health records.
The offender is the eldest of three children. His parents separated when he was 12. His mother re-partnered, and he lived with his father after the separation and initially travelled with him, but later stayed with an aunt when his father moved to Western Australia.
The offender has been employed since leaving school in Year 10. He has done a variety of work and he is a self-described "jack of all trades," most recently working as a tyre fitter at [REDACTED].
He is the father of three children. He was distressed by the breakdown of the last relationship and became very depressed and used alcohol to cope, drinking every day and most of the weekend. He also used some cocaine and MDMA in an attempt to lift his mood. He acknowledged he was abusing alcohol in the period leading up to the offence, calling himself a "self-declared alcoholic."
He has experienced suicidal thoughts in prison, particularly last year, and was very depressed. This depressive illness was assisted by counselling and medication. The medication was doubled to manage the offender's symptoms.
He is otherwise now in good health and has been drug and alcohol free for two and a half years.
Dr Nielssen concluded that the offender has a depressive illness in remission and a substance use disorder in long term remission.
Dr Nielssen said that the offender's likelihood of further offending is low if he maintains sobriety after his release, and he has an overall low likelihood of committing a further serious offence.
He has a "greatly increased risk of further episodes of clinically significant depression" and should only withdraw from the antidepressant medication he is taking under the supervision of a doctor. He should also participate in alcohol related counselling around the time of his eventual release. Those matters I have just referred to are Dr Nielssen's views and opinions set out in his report.
An affidavit of Trina Doolan outlined the offender's strong work history, regular contact with his three children and, in her experience, his kind nature. She outlined that there was some domestic violence in the home, which the offender had witnessed as a child. She has voiced her strong and complete support for the offender. She also referred to the difficulties the offender has had in custody during the COVID-19 pandemic and that during that time, visits were very limited. She observed that this isolation had a very negative effect on the offender.
[REDACTED], the offender's boss at [REDACTED], spoke highly of the offender's attitude, work ethic and calm and professional demeanour. He was a witness in the trial and so is well-aware of the circumstances of the offending. Nevertheless, he expressed a willingness to re-employ the offender given his observed qualities and his belief in him.
The Justice Health records indicate that the offender was unwell with COVID-19 in June 2022 and was expressing suicidal ideas and intent, decreased mood, agitation and mood swings in the first half of 2022, requiring concerted treatment in June 2022 and following.
The Corrective Services records indicate that the offender has demonstrated a high level of cooperation in custody, that he works hard and has a good work ethic. The notes also confirm the depressive symptoms in early 2022, including a specific plan for suicide, which led to his referral for counselling and treatment.
There were character references tendered from the offender's sister, and friends, [REDACTED] and [REDACTED], noting the offender's positive qualities and what was, in their view, the markedly out of character nature of the offending.
I accept Mr Broadbent's submission that the offender's history of depression and Dr Nielssen's opinion of the "greatly increased risk of further episodes of clinically significant depression" is a matter to be taken into account. There is no doubt that the offender requires ongoing clinical supervision. I am satisfied that the custodial sentence will weigh more heavily upon him and be more onerous for him given his depressive illness and I have taken that factor into account in accordance with the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa") at [177] per McClellan CJ at CL (Simpson J and Barr AJ agreeing).
I am of the opinion that this offence, while very grave, was an aberration. I consider that the offender is very unlikely to offend again. He has a demonstrated strong work ethic, good work history demonstrated both in and out of custody, friends and family who vouch for his positive qualities and the strong support of his mother and sister and former employer.
I consider that the offender has excellent prospects of rehabilitation, already demonstrated by his positive attitude in custody and his previous underlying pro-social pattern of conduct in the community. He is only 33 years old. He is attached to his children with whom he is in regular conduct. I consider that he is likely on release to seek out employment and return to being a hard-working, well-functioning member of society.
The offender does have an ongoing mental health vulnerability and potentially needs support on release regarding past alcohol abuse. This is also his first time in custody. However, I am not satisfied, as submitted by Mr Broadbent, that a finding of special circumstances is the appropriate way to take these matters into account. I have already taken into account the offender's mental health vulnerabilities as an important matter affecting the fixing of both the head sentence and the non-parole period consistently with the principles in De La Rosa to which I have already referred.

Comparable cases

A number of sentencing decisions were drawn to my attention as comparable cases but in my view, there are significant distinguishing features. Every case is different. I have read the cases referred to and I have borne them in mind to the extent that they can assist me in the sentencing exercise I have undertaken.

Sentence

Brendan Thomas Doolan please stand. For the offence of the murder of Bradley Dixon I impose a sentence of imprisonment of 18 years commencing on 23 January 2021 and expiring on 22 January 2039 with a non-parole period 12 years commencing on 23 January 2021 and expiring on 22 January 2033.
You are eligible for release to parole on 22 January 2033.

Other matters - High Risk Offender legislation

I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) which applies to serious violence offences including the offence for which you have been sentenced.
In summary this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a high-risk offender who poses an unacceptable risk of committing a serious offence.
It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Amendments 17 July 2023 - Coversheet: editing error in catchwords. 17 July 2023 - Coversheet: correction in catchwords. 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: 17 July 2023

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