R v Dowdy [2005] VSC 68

Supreme Court of Victoria|2005-03-01|Before: COLDREY J

SENTENCE - Assist offender - Principal offence manslaughter - Erasure of video record of evidentiary value - Offence committed without premeditation and in situation of stress - Need for general deterrence - No prior convictions - Relatively youthful offender - Excellent prospects of rehabilitation - Release on 2 year undertaking under s.72 of Sentencing Act 1991.

Fiona Anne Dowdy, you have been convicted by a jury of the offence of assisting an offender. I must now impose sentence upon you. In order to place your offence in context, it is necessary to briefly detail the events leading up to it.

On the afternoon of 1 November 2003, you were present with a group of youths, WRJ, GJS, Christopher Reynolds and WNT at various locations in Mildura, including the local skate park and the Cureton Avenue home of WRJ. The link between you and this group was your boyfriend, 18 year old Christopher Reynolds. At this time you were 39 weeks pregnant and Christopher was the father of your child. During this afternoon the youths in the group indulged in various antics. These included skateboarding tricks, some tomfoolery by WRJ with a brown snake discovered near the skate park, the eating of a rancid noodle by GJS, followed almost immediately by his vomiting, and some skateboarding by WRJ down the Madden Avenue hill in a manner dangerous to himself and to motorists using that roadway.

It appears that these activities were captured on your video camera, principally by Christopher Reynolds. Your presence at these events was not constant and your main attention on that afternoon was apparently directed towards your cousin and her family who you picked up from a bus stop in your car and brought to the skate park.

These episodes proved to be the prelude to the youths I have named going late in the evening of 1 November to the humpy in Jaycee Park of a local identity named Arthur Burrows. Mr Burrows was aged 66 and was apparently affected by dementia. He was an inoffensive person whose well-being was ensured by a good Samaritan, the Jaycee Park curator, Ron Tricker.

The purpose of the noctural visit was to make a film of Arthur Burrows in a style similar to the American movie, "Bumfights". It is not necessary to give any detailed description of that movie. It is sufficient to note that in the segment entitled "Bumhunter", a character impersonating Steve Irwin, of Crocodile Hunter fame, harasses homeless men (or "bums" in the American jargon) in the name of comedy. The exploits of the film character include wrestling with the homeless men, measuring them, numbering them with texta and spraying paint on their clothing. On occasions the men's arms and legs or mouth are taped. These actions are accompanied by assurances that these persons will not be harmed.

It should be made clear first that you had never seen the film "Bumfights" and, secondly, that you were not involved in the idea of going to Arthur Burrow's humpy to make the video film.

When the boys left the Cureton Avenue house at some time after 11 p.m., they were armed with a shoe box containing cakes (including lamingtons) which it was proposed to give to Arthur Burrows. You and another girl, Danielle Edwards, followed them as they travelled the distance from the house to the humpy, which was about 150 metres. Danielle Edwards entered the humpy on one occasion, but you declined to do so. Indeed, you remained about 30 metres away. After about five minutes, both you and Miss Edwards returned to the Cureton Avenue house. This was prior to any fire having been lit in the humpy. Your first knowledge of this was when the boys returned to the house.

On their return to the house one or more of the boys said that they had lit a small fire on a crate. They were eager to watch the video and it was played on a TV screen. You described the tape which everybody watched as depicting the boys talking to Arthur Burrows, offerring him cakes and thereafter placing some on the bed and his chest. The boys, particularly GJS, were doing a lot of talking to the man and at one stage water was sprinkled around in the pretence that it was "gasoline", an American term no doubt derived from the Bumfights film. The evidence indicates that this was done by WNT, who also flicked a lighted cigarette onto the bed. This was immediately removed by GJS. These various activities were performed for the benefit of the camera. At one stage Arthur Burrows told the boys to "piss off" and they temporarily left the humpy. However, they returned and on this final occasion, WRJ lit a piece of old carpet, which he placed on the plastic milk crate adjacent to Arthur Burrows' bed.

The preponderance of the evidence suggests that the boys were of the belief that the fire, which was small at the time, would burn itself out.

You were not aware of the details of what occurred until you viewed them on the video.

In their evidence, both WRJ and Danielle Edwards stated that after viewing the fire on the TV you told WRJ to go and check that everything was all right. The evidence suggests that he and GJS went down the lane and were confronted by a sizeable fire. On their return you went with Miss Edwards to the fire scene. You informed the police who were present that you were aware of a homeless person who lived under the tree and you expressed concern as to whether or not he was all right. You and Miss Edwards were subsequently informed by Constable Glenn Palmer that there was someone under the tree and that it looked like he had passed away. You returned to Cureton Avenue and passed on this information to the boys.

The thrust of the evidence is that both you and they were devastated by this unexpected turn of events. The evidence of WRJ and Danielle Edwards was to the effect that you were absolutely distraught.

It was while in this state of mind that you were involved in the erasing from the videotape of the events that occurred at the humpy. There are various versions of how this came about. WRJ thought it was the idea of Chris, whilst in your own record of interview you spoke of telling Chris to get rid of the tape. Ms Edwards gave evidence of Chris initially taping over the video, but you retaping over it because the voice of GJS could still be heard. The precise sequence of events is not significant. The fact is that both you and Chris Reynolds participated in activating the necessary mechanisms which resulted in the erasing of the material.

In your record of interview you agreed with the police that the video contained evidence that could have been used in the prosecution of the boys. You gave the explanation that you were scared for everyone. You also said,

"Well, at the time I didn't think of it as erasing, like, to get anyone off. I just didn't want to see it knowing that the old man had, like, been burnt. I just didn't want it on the video. I just wanted it gone. I guess if it was gone, it didn't happen."

Although this may well have been one of the purposes of your action, the jury, by their verdict, were satisfied beyond reasonable doubt that you also erased the material in an effort to protect the boys and, in particular, Christopher Reynolds as the father of your unborn child. Consistently with that mind set, you did not reveal your full knowledge of what had occurred on that fatal evening when initially spoken to by the police. However, your actions did not impede the police investigation for long. The first arrests were made in the early evening of 2 November. Further, later that same evening you made a statement to police in which you gave a detailed description of the events depicted on the videotape, as well as your role in erasing them.

The offence of assisting an offender is a serious one. In this case the hindering involved the significant crime of manslaughter. Moreover, the need to deter others from engaging in such conduct is clearly a relevant sentencing consideration. However, the sentence this offence attracts will necessarily vary according to the circumstances surrounding its commission and factors personal to the offender.

In your case you had nothing to do with the idea of approaching Arthur Burrows or its implementation. Once you became aware of the possible danger posed by the fire, you urged those involved to check on the situation. You also went to the scene yourself to alert police to the possibility of harm to Mr Burrows. It was upon learning of his demise that you perpetrated this offence.

In assessing your level of culpability, I take into account that the decision to erase the tape was made when you were in a highly emotional state and without the opportunity for any rational reflection. It was a decision arrived at and implemented in a very short space of time. You were faced with the possibility that the act of arrant stupidity, with its unexpected and tragic consequences, could deprive you of the assistance and support of the father of your child at a time very close to the child's birth. I accept that your decision was made in circumstances of great pressure and stress. Moreover, within less than 24 hours you had made a full and frank statement to the investigating police.

Additionally, there are a number of matters personal to you which are relevant to the sentence to be imposed. You are presently 24 years of age, having been born in May 1980 in Mildura. You have two older brothers and a younger half-sister. Your parents separated just before you turned four, but have remained on good terms with each other. Your mother has always been involved in home duties and your father is a labourer and block worker in the Mildura area. Both remain supportive of you.

You commenced your primary education at Merbein Primary School, completing it at Mildura West Primary School. Your secondary schooling was at Chaffey College, but you were not academically inclined. You left school in 1997, in the second semester while attempting to repeat Year 10.

After leaving school, you worked with your father at a large citrus block, and still do so from time to time. In 1998 you enrolled at the Sunraysia Institute of TAFE, commencing a Certificate in Work Education. You undertook this two-year course with great enthusiasm and had, in fact, completed all the education modules by about the end of the first year. Consequently, during the second year you worked effectively as a teacher's aid helping other persons pursuing the course. You were also the editor of a magazine produced by the course participants.

Included in the documents tendered to the court on your plea was a letter from Robyn O'Brien, the course co-ordinator, in which she refers to you as a responsible and reliable person, well liked by other students.

Having successfully completed the course, you commenced working at McDonalds in the Langtree Mall in October 1998. You worked there for the next five years. A reference from Lynda Turlan, the Restaurant Manager, describes you as having been "a valuable and capable member of the store's team", and "an asset to our operations." she has no hesitation in recommending you to future employers.

Another strand in your life has been your membership of the Salvation Army in which your activities included teaching Sunday school. This organization held you in sufficient regard to send you to attend the Salvation Army Millennium Congress in New Zealand in the year 2000.

On 10 November 2003, just over a week after these events, your child Jai-Maree was born. I am informed that you are still breastfeeding your daughter, and the Court was provided with further references which, among other things, describe you as an excellent mother and totally devoted to your baby girl.

Your counsel indicated to me that your relationship with Christopher Reynolds has been turbulent and, of course, he is still undergoing sentence for the offence of the manslaughter of Arthur Burrows. Nonetheless, you have both decided to attempt to remain together for the sake of your child and there is talk of marriage in the future. Apparently Christopher Reynolds' first available date for parole is 1 November of this year.

You have no prior convictions and, indeed, no subsequent convictions.

In the unique circumstances of this case, it cannot be said that any weight need be given to specific deterrence and, given your lack of prior convictions, your attempts to better yourself educationally and your demonstrated capacity for hard work, your prospects for rehabilitation are excellent. That being said, assisting an offender is, as I have previously mentioned, regarded by the legislature as a serious offence and one attracting the principle of general deterrence.

Accordingly, I cannot accede to the request of your counsel that you be dealt with by way of an adjourned undertaking without the imposition of a conviction. However, the same unique circumstances to which I have referred make any type of custodial sentence quite inappropriate.

In my view, the appropriate sentence in this case, given all the circumstances, including your current family situation, your lack of any convictions whatsoever and your excellent prospects of rehabilitation, is that you be convicted of this offence, but that otherwise the proceedings be adjourned for a period of two years and you be released upon your undertaking to be of good behaviour during the period of the adjournment. I do not intend to impose any special conditions and, providing you are of good behaviour, you will not need to further attend this court. Of course, if you breach the law during that period of time, you will be required to come back before me for sentence

You will need to sign an undertaking. I am hoping the Crown has one. Because we give them so rarely in this court, we could not lay our hands on any

HIS HONOUR: You need to come forward to the Bar table here and sign the document.

I have signed the undertaking, and I hope you will be able to go and get on with your life, Ms Dowdy. I am sure you do not want to come back again, and I do not want to see you again - not here, anyway.

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