R v DOWLING [2019] NSWDC 155 | Case summary

Assessment

Going initially to matters of general principle in assessing the seriousness of a crime of manslaughter I repeat what I said at [21]-[26] in my remarks on sentence in R v Tristan Lee [2019] NSWDC 59 namely: "Gleeson CJ (Grove & Ireland JJ agreeing) said in R v Blacklidge unrep NSWCCA 12 December 1994: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.' [22] However, the Chief Justice went on to say: "At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" [23] In the decision of R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the court (Spigelman CJ, Simpson J (as her Honour then was) and Howie J) said at [61]: 'The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510.' [24] Spigelman CJ (Hulme & Adams JJ agreeing) said in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge was also a Crown appeal said at [44]: '…When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.' [25] In the course of submissions the Crown referred to the decision of R v Loveridge [2014] NSWCCA 120 (co-incidentally another Crown appeal) where the court (Bathurst CJ, Johnson & Hulme JJ) said at [229]: 'When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].' [26] Going to another matter of general principle,…in R v MD, BM, NA & JT the Court said at [65]: 'In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.'
The Crown submits at paragraph 11 of the written submissions, MFI 1 on sentence, that the offender's moral culpability is high and that a sentence of full time custody is the only appropriate sentence in the matter. In oral submissions the Crown put that the present matter was "at the higher end of the spectrum of manslaughter by criminal negligence". Later in oral submissions the Crown put that the matter is more serious than the matter of R v Tristan Lee.
Lee was an example of manslaughter by unlawful and dangerous act. The facts in the decision of Magro to which I referred earlier are an example of manslaughter by unlawful and dangerous act where the moral culpability of the offender is high.
Mr Lowe in his submissions concentrated on matters in mitigation to which I will refer when dealing with the offender's subjective case. However, he did submit that there was an ambiguity in the evidence as to when it was the offender became aware of the serious condition of Luke Doyle. I understood Mr Lowe to submit that there was only a short period of time during which the offender was aware of the serious condition and accordingly, the matter was less serious. Mr Lowe put in submissions in reply that the matter presently under consideration was less serious than the matter of R v Tristan Lee as that matter involved the offender chasing the deceased with a knife.
To my mind, the matter presently under consideration and the matter of Lee are incommensurable. The two matters starkly illustrate the broad range of conduct that will constitute manslaughter. Neither counsel provided any decisions on the issue of assessment of this matter, which given the nature of the matter is hardly surprising. I am to a very large extent in uncharted waters in determining this matter.
The offender, the deceased and others had been ingesting prescription substances unlawfully obtained over a couple of days. It is clear from the evidence that all were affected by the substances that they had ingested. However, self-induced intoxication cannot be a matter in mitigation - see s 21A(5AA) of the Crimes (Sentencing Procedure) Act, 1999. All the facts and circumstances must be taken into account.
The offender must have realised that Luke Doyle was in a very serious condition when she got into the driver's seat of the utility. Likewise, she must have been very well aware of his condition when she arrived at her home. As I observed in my reasons for the verdict it would have been blatantly obvious to anyone that Luke Doyle was in dire need of medical attention. He was left in the driveway and the offender went to bed. The conduct was limited to driving away from Apps' home, not taking Luke Doyle to where he could obtain the obviously necessary medical attention and taking him to her home and leaving him in the driveway.
This matter can be contrasted to those involving parents who over a significant period of time fail to provide food and or medical attention to a helpless young infant.
I do not accept the Crown's submission that the offender's moral culpability is at the higher end of manslaughter by criminal negligence. However, neither is it at the lower end of the scale. Another way of expressing what I have said is that the matter is only slightly below mid-range. This assessment is in the context of matters of manslaughter by criminal negligence.

Subjective case for the offender

The offender did not give evidence at the sentence hearing however her mother did give evidence. Most of that evidence was directed towards the hardship of a third party, namely William Dowling, a young nephew of the offender.
Ms Lesley Dowling, the offender's mother, gave evidence that William Dowling was the son of her son Kevin Dowling and Ms Rebecca Eschbach, who had a long term problem with drugs and alcohol. William has been with her and the offender for the past three years. She and the offender look after William, with the offender looking after William when Ms Lesley Dowling is working night shift at a local aged care facility in Young. Lesley Dowling assessed the relationship between the offender and William Dowling to be very close.
The evidence continued that since the verdict of guilty was returned on 6 December 2018 and the offender has since been on very restrictive bail conditions she, i.e. Lesley Dowling, has taken William to the doctor.
William has behavioural issues. This is supported by documents in exhibit 2 on sentence, being a series of medical reports in respect of William. There is a letter dated 11 March 2019 under the hand of Stuart Crisp, Paediatrician that sets out that William has the genetic abnormality of Xq28 duplication syndrome, mild intellectual difficulty and severe expressive language disorder. The letter goes on to say that this has "significant consequences for his learning and behaviour". Included in the exhibit is a pamphlet explaining Xq28 duplication syndrome. The other documents within exhibit 2 are comprehensive medical reports that support the statement contained in the letter of 11 March 2019. There is no reason to doubt the diagnosis or anything else contained in those reports.
Returning to the evidence of Ms Lesley Dowling, she explains that the behavioural difficulties manifest themselves by William getting really cranky, banging walls and being abusive. William's father apparently has little to do with William. A little later in her evidence she said the offender takes her role as William's guardian seriously and that it was her opinion that William would suffer if the offender were to receive a lengthy custodial sentence. Towards the end of her evidence in chief Ms Lesley Dowling said that if the offender did receive a custodial sentence she would resign from her work in order that she could look after William. She would want him to remain with her.
Lesley Dowling also said in evidence that soon after the death of Luke Doyle the offender consulted a rehabilitation counsellor and she has been abstinent from drugs and alcohol for 4 years.
Under cross-examination Lesley Dowling said that her son Kevin did not have a drug problem but that he worked from 10pm to 6 am at a rendering plant (I understood this to be a meat works) and that her son had no input into his son's life on an ongoing basis. There was further cross-examination directed to the ultimate submission that the case was not in that category of truly wholly or highly exceptional.
On the issue of hardship to a third party Mr Lowe, counsel for the offender, referred the court to the decision of Dipangkear v R [2010] NSWCCA 156 in particular at [30]-[36]. I accept that there is a particular bond between the offender and William and that they are close. Further, I accept that the offender plays a significant role in the day to day care of William. I have no doubt that the absence of the offender will have an adverse effect on William.
However, the principles are quite clear. Dunford J. reviewed the principles and authorities in his judgment in R v Byrne (1998) 104 A Crim R 456. His Honour said at p 463: "The general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in mitigation of sentence in highly exceptional circumstances. The care of young children is not normally an exceptional circumstance. In Edwards (1996) 90 A Crim R 510 at 516 Gleeson CJ said: 'The real difficulty about a case such as the present, and many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional; regrettably, causing hardship to third parties by the imprisonment of the offender is only too common…' Justice will not be seen to be administered even handedly if exceptions are made in cases which are not truly exceptional."
More recently, the authorities relating to hardship to an offender's family were reviewed by the Court of Criminal Appeal in R v Hopley [2008] NSWCCA 105 at [39]-[41]. At [39] Johnson J. (Beazley JA, McCallum J (as her Honour then was). agreeing) said: "The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards at 516; R v Day at 277; R v Gip; R v Ly at 179 [29]".
I am not aware of any authority, nor have I been referred to any more recent authority, that places any doubt or qualification on the authorities to which I have referred. I accept the Crown's submission that the situation with William in the matter presently under consideration does not meet the test of "truly, wholly or highly exceptional" but the issue relating to William is all part of the subjective mix and makes a small contribution to the justification for a finding of special circumstances.
Ms Lesley Dowling agreed with the author of Exhibit 1 (psychologist's report) that her daughter has shown poor decision making. She also said that her daughter had a naïve view of the world but she has now come to realise what life is really about.
Exhibit 1 on sentence is a report of Ms Lisa Zipparo, clinical neuropsychologist of Dr Susan Pulman and Associates. The Crown at paragraphs 34 and continuing of the written submissions (MFI 1 on sentence) puts that the author of the report was not provided with the two police records of interview and had those interviews been provided the author would have been able to make "a more informed and perhaps more accurate" assessment. The Crown goes on to submit that the results of the tests at pp 5 to 7 of the report are inconsistent with the intellect and cognitive functioning of the offender demonstrated in the ERISPS. The Crown did not object to that report nor was the author required for cross-examination. I am not prepared to reject the report.
The offender apparently had a good and happy upbringing in Young and she enjoyed an extended family in the area. The report sets out the offender's current living arrangements, namely that she lives with her mother and William. She enjoyed school and had lots of friends (p 3). She attended pony club as a child. She has had various employment including at a disability employment service.
The report goes on (p 3) to explain that the offender has been involved in a number of motor vehicle accidents and in particular one in 2007 which caused an injury to her back for which she was prescribed OxyContin, to which she became addicted. The offender told the author of the report that she no longer takes opiates because of her high tendency to become addicted.
At p 4 of the report it is set out that the offender commenced using cannabis at 19 and began to drink alcohol socially but that she would drink until she was drunk. She has been abstinent from alcohol and substances since 2014. She has previously tried residential rehabilitation on a number of occasions. The offender described becoming paranoid and delusional at various times in her drug taking.
The report records (p 4) that the offender has frequent flashbacks to the death of Luke Doyle. He mother and family were very supportive of her and helped her. She is very concerned about her nephew William.
Various tests were administered in the course of the preparation of the report. The offender's overall level of intellectual functioning fell within the borderline to low ranges, with her results being at or better than 8 per cent of the population. The author opines (p 6) that low average is a reasonable estimate of overall abilities.
At p 8 of the report the following appears: "Ms Dowling has shown poor judgment and poor decision making throughout her adult life, including a naïve view of the world and a careless and impulsive attitude to illicit drug use. Impaired executive function caused by frontal lobe dysfunction is known to play an integral part in poor judgment and decision making and in addictive behaviour. In terms of the contribution her impaired executive function may have made to the offending behaviour, it is difficult to separate the relative contribution of her impaired decision making capacities due to executive dysfunction compared with the impaired decision making caused by the significant cocktail of drugs she had taken on the night of Mr Doyle's death".
I have no note or memory of any submission on behalf of the offender that the sentence be mitigated because of the issue of impaired executive function. Given what the author of the report writes about the difficulty in separating impaired decision making because of that and impaired decision making because of the cocktail of drugs ingested that is not surprising.
The author of the report opines (pp 8-9) that for a successful rehabilitation a number of detailed aspects of her mental health need to be addressed. The Crown opposes a finding of special circumstances. It is submitted on behalf of the offender that there be a finding of special circumstances. The issues relating to mental health and the need for supervision to ensure that the offender receives the appropriate treatment for those issues, taken with the need for assistance to effectively re-integrate into society, justifies to my mind a modest finding of special circumstances.
The sentence assessment report (SAR) (tab 4, exhibit A on sentence) (p 3) assesses the offender at being a medium risk of reoffending. However, the author of that report also notes that the offender is willing to undergo supervision and to undertake interventions to address her risks of reoffending.
The offender has not offended since 2013. There is no reason to doubt the evidence of the offender's mother that the offender has been abstinent from drugs for four years. The offender has been making a very valuable contribution to the upbringing of her nephew William. Given these factors I am prepared to find on the balance of probabilities that the offender has good prospects of rehabilitation and further that she is unlikely to re-offend.
Returning to the SAR, the author under the heading "Insight into impact of offending" recorded that the offender refused to discuss the offence as she stated that it caused her distress and that she became highly distraught when discussing the events that surrounded that period of time. Further that while she continued to deny full culpability she did express regret for being part of the events and that she expressed empathy for the victim and his family.
There is no evidence that would entitle a court to find on balance that the offender is remorseful. Be that as it may, it seems that the offender does indicate some degree of empathy and that she has some insight into the effect of her offending.
Mr Lowe on behalf of the offender submitted that the onerous bail conditions to which the offender has been subject since she was charged with this offence, namely 18 October 2016 entitle her to have the sentence back-dated in accordance with the principles enunciated by the Court of Criminal Appeal in R v Anderson [2012] NSWCCA 175.
Davies J (Allsop P (as his Honour then was) with additional comments, Campbell J agreeing and with the additional comments of the President) said at [41-[45] of Anderson: "The Crown accepted that in appropriate circumstances an allowance can be made for periods on bail. Most of the cases which have dealt with this have involved rehabilitation "custody" by virtue of the offender being within a residential rehabilitation program: R v McHugh (1985) 1 NSWLR 588; R v Douglas (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1. [42] In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said: [38] It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. [43] Once it is accepted that it may be appropriate in some circumstances to give a discount of 50% in respect of bail conditions the determination of what an appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown. [44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were onerous. She was required to reside in a small town, was unable to leave it (except to attend court or legal conferences) and was subject to a curfew. Those conditions meant that she was unable to find employment (because of the limited job opportunities in such a small town) and was unable to further her rehabilitation because no facilities were available. [45] Her Honour's approach to the Respondent's bail conditions was a lenient one. She did not, however, make any error of fact or law, she did not take account of irrelevant matters and she considered relevant matters. The result, whilst generous, was not plainly unjust nor unreasonable in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325 at [21]."
At paragraph 48 of the Crown's written submissions on sentence (MFI 1 on sentence) the Crown refers to the decision of Hoskins v R [2016] NSWCCA 57. In that decision the Court (Payne JA, McCalum J (as her Honour then was) and Wilson J) said at [36]-[37]: "The fact that an offender was subject to strict conditions of bail during the period awaiting trial or sentence is a matter that may be taken into account by a sentencing judge, but there is no obligation to do so. Much will depend upon the facts of the particular case. Certainly, there is no principle that dictates a reduction in sentence as a direct equivalent of a period of time spent subject to strict conditions of bail. It is a matter for the sentencing judge to assess the facts of the particular case and determine whether bail conditions to which an offender was subject amount to quasi-custody: R v Cartwright (1989) 17 NSWLR 243, at 258; R v Webb [2004] NSWCCA 330 at [18]."
The Crown opposes any credit being extended to the offender because of the onerous bail conditions. The Crown also submitted that "house arrest" is nothing like being in prison. Issues arise as to whether the bail conditions to which the offender was subject were onerous to the extent that the principles as described in Anderson are enlivened and, if so, what is the extent of any consideration that should be extended to the offender - noting that she was facing one of the most serious charges on the criminal calendar.
After I returned the verdict of guilty on 6 December 2018 the Crown made a Detention Application. That was refused, however the offender was placed on very strict bail conditions essentially that amounted to house arrest. I would not allow any credit for the period from 6 December 2018 up until the time of sentence, given that the offender had been found guilty of manslaughter and was awaiting sentence that would inevitably involve a sentence of full time custody which was made very plain to the offender.
Both counsel made reference to the bail conditions however no attempt was made to place a copy of the bail undertaking before the court. The court therefore has to resort to checking its own records, as it is entitled to do - see for example Mead v Mead [2007] HCA 25 and DPP v Pinn [2015] NSWSC 1684 per Adamson J. That check with the JusticeLink records indicates that the bail order was acknowledged on 18 October 2016 and that the conditions were reporting to Young Police Station three times per week, a residential condition, not to contact prosecution witnesses and not to commit any further offences. My note of counsel's submissions was imperfect and accordingly I had my Associate contact counsel for the offender who advised by email that he was relying on these as being onerous bail conditions justifying some consideration.
Accepting that my notes of the submissions were imperfect and in the absence of any document tendered I checked with counsel today before commencing the delivering of these remarks on sentence. It was as well I did so. Mr Lowe submitted that his client was reporting daily up until the trial commenced at which time the reporting conditions were suspended and that she reported on the weekends. As part of the submission it was put without apparent opposition or objection from the Crown that a check with the police officer in charge of the case indicated that the offender was reporting on a daily basis until the trial commenced. A physical check by my Associate with the actual Bail Acknowledgement on the Court file also indicates that the offender was reporting daily.
Even allowing for the fact that the offender was reporting daily from her arrest in October 20I6 I do not regard these bail conditions as being onerous to the point where any credit would be allowed conformably with the decision of the Court of Criminal Appeal in R v Anderson [2012] NSWCCA 175. Indeed, the bail conditions are no more onerous than would ordinarily be expected with a charge of manslaughter, noting the maximum penalty prescribed for that offence.
Delay is the only other issue that has to be addressed. The offender was arrested and charged with the offence on 18 October 2016 and the trial commenced on 15 October 2018. The trial was originally scheduled to commence on 9 April 2018 however that date was vacated to accommodate what became known as the "Special Call Over". As the Crown submits at paragraph 51 MFI 1 on sentence, I observed at [22] of the decision on guilt that the delay between committal for trial and the trial commencing is not particularly significant.
Latham J (Hidden & Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57]. Her Honour went on to say at [49]: "There is nothing in this Court's consideration of the issue of delay in Fahda, Khoury, Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook, with the exception of the last factor (a mitigated penalty as a mark of disapproval of tardy prosecutorial conduct) in Buss JA's judgment. I am not aware of any authority in this State that has endorsed such an approach to the sentencing of an offender, where the absence of a satisfactory explanation for the delay leads to the conclusion that the prosecution has been 'dilatory or neglectful'. Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it.'
Although the offender has had the matter "hanging over her head", the effect of the delay has been to a large extent positive in that she has been able to demonstrate an ability to rehabilitate herself and to remain abstinent from substances. I am not persuaded that the offender should be extended any consideration because of the effect of delay.

R v DOWLING

At a glance

Court

Decision date

Before

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Judgment (9 paragraphs)

Parties

Cases Cited (29)