R v Dowling

Supreme Court of NSW|2023-12-18|Before: Hulme AJ, Wilson J

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 191041/2021

JUDGMENT

Zachary Joel Dowling pleaded guilty in the Local Court to the murder of Brian O'Sullivan at Mayfield on 29 June 2021. He was committed for sentence to this Court where on 3 March 2023 he appeared before Wilson J and adhered to his plea of guilty. Her Honour recorded a conviction at that time.
Evidence and submissions were presented at a hearing on 18 December 2023 and today Mr Dowling is to be sentenced.
The maximum penalty for murder of imprisonment for life and the standard non-parole period of 20 years are statutory guideposts for the assessment of an appropriate sentence.

The day of the murder

On Tuesday 29 June 2021 the offender and Mr O'Sullivan spent most of the day together. In the afternoon they went to a car dealership for the purpose of Mr O'Sullivan financing the purchase of an old car for the offender. The salesperson saw the offender elbow Mr O'Sullivan as they arrived, describing it as "not overly hard but not in jest either" and then saw the offender kiss him on the side of his face.
After the pair left the dealership they caught a bus to the offender's home, arriving at about 5pm. The offender introduced Mr O'Sullivan to three fellow residents as his "boyfriend". They went to the offender's bedroom. At around this time Mr Darren Carlson, the owner of the boarding house, received another complaint that the offender was drunk and causing problems.
At 5.07pm, CCTV captured the offender standing outside the doorway to his bedroom. Mr O'Sullivan walked past him out into the common area and the offender slapped him on the back of his head. He did the same as the pair went back into the bedroom and closed the door.
At 5.21pm the offender left his bedroom and had a conversation with Mr Carlson who had just arrived. Mr Carlson observed the offender to be "really drunk" and slurring his words. He told the offender that he needed to stop annoying other residents.
At 5.31pm Mr Carlson was near the door to the offender's bedroom and saw Mr O'Sullivan sitting on the bed. He told him he was not allowed to smoke. Mr O'Sullivan got up to go outside and the offender got angry and said, "Don't tell my boyfriend what to do". Mr O'Sullivan attempted to intervene between the offender and Mr Carlson but the offender pushed him in the chest and directed him back into the bedroom.
The pair re-entered the bedroom at 5.33pm. Thereafter some residents of the boarding house heard noises coming from the bedroom. Their various descriptions were consistent in that they each thought it sounded like "loud sex". One person said he heard someone say, "Stop it" and then he heard a "bang". He heard someone say, "Give it to me harder" and then "a forceful thump, like a loud bang." There was also a sound that he thought was the bed breaking.
The offender killed Mr O'Sullivan at some point between 5.33pm and 7.07pm.
The CCTV captured the offender leaving and returning to the bedroom several times between 5.30pm and 6.53pm. When the offender was outside the bedroom, he left the door open but Mr O'Sullivan could not be seen.
At 6:53pm the offender came out of the bedroom and left the door open. He was not wearing pants. He appeared to communicate with someone in the common lounge room. At 6:54pm he was outside the bedroom and appeared to be speaking towards the inside of the bedroom and then went back into it.
At 6:57pm the offender came out of the bedroom and left the door open. He threw a dog or cat bed that had been on the table in the common area. He then picked up a pair of trousers from the table, put them on, and returned to the bedroom.
The offender left the bedroom at 7.07pm, closed the door, and left the premises. He did not return until two days later, on Thursday 1 July 2021. The body of the deceased remained in the bedroom.
It is an agreed fact that the offender had assaulted Mr O'Sullivan by hitting him in the face causing facial injuries. Mr O'Sullivan's blood and hair were found on the bedroom walls. The murder was effected by the offender using force to push Mr O'Sullivan's lower dentures from his mouth backwards into his throat. They were found lodged approximately 8cm from their correct position in the back of his throat. The offender said on several calls he later made from gaol that he had his hands around Mr O'Sullivan's throat.
The cause of death was asphyxiation as a result of choking on the dentures.
As to the offender's state of mind at the time of doing the act which caused death, the agreed facts state: The offender's state of mind was such that, while he had his hands on the victim's throat, and was pushing his lower dentures into the back of the victim's throat, the offender at least realised the probability that he would kill the victim if he did not stop what he was doing and assist the victim to clear his airway.
A footnote appended to this states: The plea of guilty to murder has been accepted on the basis of a "reckless indifference state of mind", and it is accepted that the objective seriousness, and the offender's moral culpability, are to be assessed on that basis.

The aftermath

When the offender returned to the boarding house on Thursday 1 July 2021 he entered and remained in Bedroom 8 for about 3½ minutes. Why he was there and what he did is not stated.
He next returned at about 3pm on Saturday 3 July 2021. About 10 minutes later he was in his bedroom when Mr Carlson, the owner, came to the door. He could hear music playing and the offender singing. Mr Carlson wished to repair the room's door lock/handle. The offender tried to persuade him to come back at another time but eventually relented. While Mr Carlson attended to the task the offender stood in the doorway, obstructing him from entering the room or seeing inside.
The body of the deceased had been in the room now for four days. Mr Carlson had lost his sense of smell some years before and was unable to smell anything, whereas other residents reported a foul stench emanating from the room.
A short time after Mr Carlson had completed his task and left, the offender came out of the room, obtained a green waste bin, took it back into the room and closed the door. After a period in which there were banging and crashing noises coming from the bedroom, the offender emerged with the green bin. A resident had the impression that he was packing up. As he wheeled the bin through the common area he said to someone in the kitchen, "Make sure no one goes in my room". (What was in the green bin and what happened to it is not stated.) The offender then left and did not return prior to his arrest later in the day. Residents continued to be concerned about the smell coming from Bedroom 8.
Just after 4pm, the offender caught a taxi to Speers Point. A neighbour saw him laying on a mattress on the balcony of Mr O'Sullivan's apartment. Police were called. The attending officers, Senior Constables Hancock and Heymans, asked the offender why he was sleeping on the balcony and he replied that he was homeless.
The offender was asked where Mr O'Sullivan was and he replied: He's at home. He's dead. Under me bed. Under me bed.
The officers did not attach any significance to these statements at the time. They described the offender as mumbling, unintelligible, sometimes ranting incomprehensibly. He appeared to the officers to be intoxicated. They concluded that he was homeless and potentially trespassing. They told him that he would have to move on. He began to throw the mattress and bedding over the balcony to the ground below. He then climbed over the balcony and down the lattice wall to where the officers were standing at ground level. He asked to be taken to a "squat". They removed him from the premises and drove him to Glendale Shopping Centre.
Later that afternoon, the offender called his friend Nicholas Blair and they had a conversation which included the offender saying: Brian is dead. He's been dead since Tuesday. … No, I'm serious. The body stinks, he's definitely dead. I don't want to be around it. It's smelling out the room.
The offender also explained that he had to put the body under his bed. He did not say why he had done this. He told Mr Blair that he was at Mr O'Sullivan's house and had not eaten or slept for days. He said that when the neighbours were asleep, he would open the window, get inside, and have a sleep and something to eat.
When asked how Mr O'Sullivan had died, the offender said that there was a lot of foreplay that night and that he had got him to "give him oral pleasure". The offender said that he had made Mr O'Sullivan choke on his penis and indicated that he used force to do so. When asked if he had spoken to anyone, and why he had not said anything before, the offender said, "I don't really want to deal with it."
There were several more telephone conversations until eventually the offender agreed to allow Mr Blair to telephone the police. Mr Blair contacted triple zero and reported that he had received a telephone call from the offender, saying: Um, they were doing something in the bedroom where it became quite forceful, um, and he reckons he acc, accidentally choked him.
Mr Blair told the triple zero operator that the offender had choked his partner to death during sex on Tuesday and that the body was under the offender's bed.

Police investigation

At 6.40pm, officers attended the boarding house and discovered the body of the deceased on the floor next to the bed in Bedroom 8.
At 7.00pm, two ambulance officers were at McDonalds in Glendale when the offender, who had been sitting in the gutter, waved them over saying they had been called for him. He indicated that he had cut his arm and had minor fresh grazes with dried blood. Originally, one of the officers thought that the injuries may have been self-inflicted. There were minor grazes to the top of the offender's left forearm and a small chunk missing out of his left knuckles. After cleaning the injuries, an officer thought that they were possibly caused by the offender "punching something".
The offender told the ambulance officers that he had been fighting. They thought that he appeared to be affected by drugs and/or alcohol and behaved erratically throughout the interaction.
The offender asked to be driven home to Mayfield, but the officers refused and instead agreed to drop him at Cockle Creek Station.
Senior Constables Hancock and Hayman heard a broadcast regarding the offender and Mr O'Sullivan and realised that they had earlier interacted with the offender in Speers Point. At 7.39pm, Senior Constable Hudson located the offender near Glendale. He had a white bandage on his left arm. He was arrested and cautioned. He was questioned in relation to Mr O'Sullivan and denied knowledge of his death.
The offender was taken to Waratah Police Station. The custody manager smelt alcohol on his breath and considered he was moderately affected by alcohol. He was charged with murder.

Investigation and crime scene analysis

There was a crime scene examination of the offender's bedroom. Initial observations indicated that Mr O'Sullivan had sustained some facial injuries. Hair fibres and blood were located on a bedroom wall and the double bed had been dismantled, with much of the room in disarray.
A set of upper dentures and blood were on the floor near the door. There was blood throughout the bedroom and it was not isolated to the area where the body was located. Several blood swabs were collected from within the bedroom and analysis confirmed they contained Mr O'Sullivan's blood.
An autopsy revealed that Mr O'Sullivan sustained superficial injuries to the head, face, and upper and lower limbs from blunt force, although the exact mechanism was not clear and they did not contribute to the cause of death. They were: 1. lacerations to the left side of the head, 2. abrasions and bruises to the face, 3. nose injury including generalised oedema, bruising and abrasions, 4. bruising on the posterior aspects of the right and left hands, posterior left forearm and left elbow, 5. bruises to the right lower leg and left ankle, and 6. healing abrasions to the left wrist, right knee and left ankle.
Evidence of fresh haemorrhage was found in relation to the bruising to one of the left fingers, the left elbow, the right wrist and left temporal region. Mr O'Sullivan was also found to have "intra-oral contusions to the left side of the tongue and along the palatopharyngeal arch [at the back of the mouth] bilaterally", with fresh haemorrhage also observed. No neck injuries were found, apart from a healing abrasion.
Mr O'Sullivan had a set of lower dentures lodged in his throat, approximately 8 centimetres from their correct location. The cause of death was listed as: "asphyxiation due to choked on dentures".
Dr Allan Cala, forensic pathologist, found no evidence to support a finding that strangulation had occurred. (This is relevant to something the offender later told his friend, Mr Blair.)

The offender's calls from gaol

Police accessed the recordings of telephone calls that the offender made in gaol after his arrest on 3 July 2021.
In a call to his father on 9 July 2021, the offender said: I got Nick [Blair] to ring them…I didn't want to deal with it … disgusting stuff … Then he stopped breathing, I left it for a couple of days, four days … here Nick, you can ring and sort it out for me mate ...
He also made numerous calls to Mr Blair. On 17 July 2021 the following was said: NB: That's what happens when you put your dick in someone's mouth. ZD: That's what happens when the falsies fall down their throat (laughs). That's what they said. They said they found the dentures down his neck … the bottom dentures went down his neck. NB: Down his throat? … How'd they get down there you think? ZD: (Laughs) Don't know mate, too rough a sex buddy. Too rough and bondage, too bad. Aw well, waiting for the police brief … listen to all their bullshit and then it's time to fight the case … see you in 8 years …
On 2 August 2021 there was the following in a conversation with Mr Blair which included: ZD: I'll just say it, fucking head job for a bit and then stopped and boom, just strangled him, it was (laughs). NB: How, how did you - - - ZD: That's it. NB: What was, what was the strangling thing? ZD: Around the throat. NB: Aw yeah. ZD: Just dipped out mate, you know. All the fucking flash backs […] come back. Flashback after flashback after flashback, me whole life, I just fucking had enough. NB: Aw yeah - - - ZD: Just - - - NB: - - - so is that what happened? It was just a blow job and that, and then - - - ZD: Stopped and finished and then boom. Went, aw fuck him, aw I must've, I must've hit him or something, I can't really remember. I must've punched him 'round. 'Cause he had a fucking busted nose and there was blood on the wall. NB: Aw yeah. ZD: I must've hit him in the nose and blood went on the wall and there was hair on the wall and the dentures must've went down his throat or something then, of I must've just, when I was choking him, it must've helped him stop breathing. He was that, not - - - NB: [Indistinct] ZD: - - - it wasn't like, purposefully, you know? NB: … what, what, you helped him stop breathing? ZD: Well, when I was choking him. NB: Oh. ZD: You know what I mean? Just doing a bit of foreplay with …, angry foreplay it was, but - - - NB: Oh yep. ZD: - - - I didn't know the fucking dentures down the neck. NB: Aw, was it, was it, (BEEP) so he wasn't choking on your willy? Was he choking on your (laughs) fist? ZD: Nah (laughs) choking on, around him, choking on me neck, around, with fingers and that, on his neck (laughs). But because - - - NB: Aw. ZD: - - - the dentures were down there, it … sort of, eh eh eh eh eh, you know? NB: Aw, 'cause the way you told me that he, he, he was choking on your wing wang (BEEP). ZD: No, you can't choke on a wing wang, how you going to choke on a wing wang? NB: (Laughs) ZD: (Laughs) Silly boy. NB: Well that's what you said, that you were - - - ZD: I did that, 'cause that's a sexual pr.. (BEEP) .. play, you know? NB: Well that's all I heard, that's all I got from you when we first spoke. ZD: It doesn't matter but, I'll just, I'll just go with your bit and go on, tell 'em the truth, go on. Alright? NB: Yeah. The portion of this conversation that has been italicised appeared for the first time in a revised transcript sent to the Court by consent after judgment had been reserved. It is the subject of discussion later (at [80]).
On 4 August 2021: ZD: Nah, it was fellatio … a fellatio act went wrong. NB: Yeah, that's what you told me … you made him choke on it somehow and there was force. That's what you told me, the night that you called. ZD: Yeah, that's good, that's working with it … little bit of head job, boom, then boom and boom boom, see ya later goodnight, hoo-roo. NB: See you didn't tell me any of that … you told me it was all because of naughty stuff gone wrong. ZD: No, it could've been that, I don't know what happened, I'm just having it anyway ,,,
On 11 August 2021, after there was mention of the repair to the door knob/lock to the bedroom: ZD: Yeah, got me new door knob on there, got it while he was in there … while under the bed, laying there, brown bread under the bed, did the door handle while he was there, just kept the door shut … NB: On the bed, or under? ZD: On the bed. NB: So did you sleep in the same bed that night? ZD: Aw dunno … NB: So he was never under the bed? ZD: Don't worry, I'm not going into it … you'll never know … (laughs). NB continued asking about whether the body was under the bed or on the bed and under the covers. ZD: Nah, under the bed, under the cover. NB: So do you miss Brian? He was your boyfriend. ZD: Nah, not one little bit.
The statement of agreed facts include some matters that do not appear to have any relevance to how the murder occurred (e.g. the activities with the green bin). Counsel for the offender submitted that things such as him repeatedly leaving and returning to the bedroom in the period in which the murder occurred were relevant because it demonstrated behaviour that was "bizarre and erratic, which informs an understanding of the chaos of what must have occurred in that particular room and his state of mind".
As to the telephone conversations with his father and Mr Blair set out above, the Crown did not rely upon them as truthful and accurate accounts of how the deceased was killed. Counsel for the offender described them as involving "machismo and bravado" with statements that are inconsistent with the findings on autopsy. (However, see below at [80].)

Objective seriousness of the offence

Mr O'Sullivan was vulnerable because of his age, health and disability, as well as his size relative to the offender.
His blood and hair were found on the walls, his upper dentures were found on the floor near the door, his body was covered in lacerations, abrasions and bruises, and the mechanism by which death was caused was by his lower dentures being dislodged and forced down his throat. Whether that was done by some form of manual manipulation with his hands on the deceased's throat or in the process of choking on the offender's penis as he told Mr Blair is unclear. Whatever the truth might be, it is at least agreed that it was done by force applied by the offender: see above at [21]-[23], [34].
There is no evidence that the offence was premeditated but a countervailing fact is the history of violent conduct by the offender towards the deceased. It was not an isolated incident of violence.
The offender's plea of guilty was accepted by the Crown upon the basis that the objective seriousness of the offence (and his moral culpability) would be assessed on the basis there was reckless indifference to human life. On the facts of this case if there is a difference between reckless indifference and intent to kill as mental states in which murder can be committed, the distinction is relatively small. With awareness by the offender that it would probably cause death the offender deliberately forced the deceased's dentures down his throat. In the aftermath, he did nothing to indicate that he was at all perturbed by the death he had caused. Reckless indifference was followed by callous indifference.
The offence occurred in the context of the offender being in an intimate relationship with the deceased, qualifying for the description of a "domestic relationship" in s 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). (I note that it is mandatory pursuant to s 12(2) of that Act that a direction be made that the offence be recorded on the offender's criminal record as a "domestic violence offence".) As the Crown submitted, there is an inherent degree of trust in a domestic relationship. Such trust is betrayed when one partner perpetrates violence upon the other, particularly in private.
My conclusion is that this is a very heinous example of the crime of murder.

Background and personal circumstances of the offender

The offender did not give evidence in the sentencing proceedings. He tendered a report by Dr Katie Seidler, clinical and forensic psychologist, dated 14 June 2023, from which the following has been drawn.
The offender was born in Australia and is now 37 years' of age. His parents separated when he was about 13 and he then spent time between his parents' homes. He denied the family breakdown had any real impact on him other than not seeing his father as often. He described the financial situation for his family as being "tough" growing up, although their basic care needs were catered for.
He said his childhood and family experience was "alright" and "quite fun"; he was generally happy and settled as a child with sound and stable attachments to family members. However, he also described his father as an "alcoholic" and a "pot head" who was "never home"; but when he was home he was "reliably intoxicated". He described discipline by way of physical beatings. After he "smashed" his father when he was about 24 years' of age their relationship changed for the better. His father had re-partnered with a woman he regarded as "alright" but for whom there was no significant attachment for him.
In contrast, the offender described his mother as loving, affectionate, supportive, and non-abusive. After the relationship with the offender's father ended his mother re-partnered and he said his stepfather was both an alcoholic and a drug addict. He was verbally and physically abusive towards his mother and, to an extent which is unclear, towards the offender. The relationship with his mother did not survive and his mother has remained single since. He said he has not seen her over the past 10 years which he attributed to wanting to avoid Community Corrections or other criminal justice authorities speaking to her about him.
The offender described reasonably positive relationships with his siblings but he has not spoken to them in over 10 years. He attributed this to his drug use.
The offender told Dr Seidler about having been sexually abused by five different men. One incident concerned a priest at Sunday School when he was aged about five or six. Another incident concerned a scout leader when he was aged seven or eight. There was an instance of inappropriate touching by an adult male friend of the family while having a bath at around the same age. An adult male who worked in the local area "groomed" him and touched him sexually on three occasions. Then at age 13 there was an instance of sexual touching by his father's brother-in-law.
The offender completed secondary education and subsequently obtained building and construction certifications through TAFE. He worked in construction up until about a decade ago. Since then, when in the community he has not been able to secure employment through lack of a driver's licence and the need for police checks. He supported himself through Centrelink benefits.
There are no significant physical or mental health issues aside from the fact that since his most recent arrest he has been treated with antidepressant medication.
The offender identifies as bisexual and claimed to have had relationships with both men and women. He told Dr Seidler his primary attraction is to females but he believes his experiences of sexual abuse earlier in life has contributed to a confused attraction to males. His longest relationship with a male had been for six months and with a female had been for eight years. He has two children, aged 9 and 14, but he has no contact with them.
The offender described a significant history of drug and alcohol abuse. He commenced drinking at around the age of 10 and by age 18 or 19 he was drinking heavily and in a binge fashion 3-4 times per week. He commenced cannabis use at the age of 12 and used it regularly from the age of 14 through to early adulthood when he gave it away because of symptoms of paranoia. He now uses it very occasionally.
Psychostimulant use commenced at the age of 18 and has continued regularly with the use of amphetamines and crystal methylamphetamines, depending upon availability. He described symptoms of drug-induced psychosis at times. He also described using various other illicit substances but with less frequency.
The offender identified his substance abuse as problematic and claimed to have insight in relation to its connection to his past aggression and violence. He stated an intention to continue with his current abstinence, saying to Dr Seidler that drugs and alcohol had "ruined" his life. He considered that his involvement in various rehabilitation programs in the past had led to him learning "everything there is to learn" and he commented that the content of the programs has not changed over the decades. Dr Seidler said that while this is positive it is also likely naïve given the extent and longevity of the offender's substance use and the interaction between his poor mental health and substance abuse.
Dr Seidler recorded an account provided by the offender as to how Mr O'Sullivan was killed. It is an account that is inconsistent with that which is contained in the statement of agreed facts signed by the offender. It includes attributing considerable blame to Mr O'Sullivan.
The account included that it was Mr O'Sullivan who sexualised the relationship immediately after they first met some 18 years ago. Every time they met he wanted to engage in sexual behaviour. The offender felt "trapped" and as if he had to comply. Mr O'Sullivan was a "bad trigger" for him. Mr O'Sullivan was sexually abusive towards him; he reminded him of other men who had abused him in the past. Mr O'Sullivan was also a "bad alcoholic". He would abuse the offender, in addition to belittling him and being critical. He was controlling. He threatened to stab the offender on a number of occasions. He made the offender feel worthless and afraid.
In relation to the offence, the offender told Dr Seidler that they engaged in some sexual contact and Mr O'Sullivan "got the shits", "got up in [the offender's] face" and threatened to kill him. This triggered in the offender memories of his abuse as a child and he became incensed with anger. He assaulted Mr O'Sullivan at which time Mr O'Sullivan hit his head on the wall and his dentures flew back into his throat, rendering him unconscious. The offender tried to extract the dentures from Mr O'Sullivan's throat but he could not be sure he was not forcing them in further. Mr O'Sullivan was no longer breathing. He slapped Mr O'Sullivan to try and rouse him and when this did not work he left. He claims that several days later he called the police.
The offender said he was not aware of a desire to kill Mr O'Sullivan but remembered being very angry as well as nervous and scared. He claimed the deceased had never been so threatening towards him but also acknowledged that he was not thinking clearly due to his intoxication at the time.
Dr Seidler reported that the offender felt "bad" about the offending behaviour but "did not express any notable remorse and claimed that there is 'not much [he] can do about it now'".
Counsel for the offender sought to rely upon the account he had provided to Dr Seidler. She submitted it was supported by something said in one of the gaol calls where the offender told Mr Blair about experiencing "flashbacks" at the time: see above at [52]. This was advanced in further written submissions sent to the court after judgment had been reserved as a consequence of the transcript of that conversation having been revised and that portion of the conversation being included for the first time. I do not accept the reliance placed upon a single portion of the gaol calls in respect of which counsel had previously disavowed any reliance. The gaol calls contain various accounts by the offender as to how the murder occurred and they are not all consistent with each other and what is in the statement of facts which the offender signed to signify his agreement. I accept counsel's characterisation of them involving "machismo and bravado".
I am not prepared to accept the offender's account to Dr Seidler of how the death of Mr O'Sullivan occurred. As the Crown Prosecutor pointed out, it was not an account given on oath or tested by cross-examination. Dr Seidler was provided with a copy of the agreed facts which included: "the murder was carried out by the offender when he used force to push the victim's lower dentures from his mouth backwards into his throat". That is in contrast to the offender's claim to Dr Seidler that "Mr O'Sullivan hit his head on the wall and his dentures flew back into his throat". Surprisingly however, Dr Seidler reported that the offender's account "was generally consistent with that contained in official documentation".
The offender's description of what occurred, and his account of his relationship with Mr O'Sullivan, are also difficult to accept when it is common ground that Mr O'Sullivan was much older, of smaller stature, frail, and a victim of the offender's violent conduct in the past. The opening sentence of written submissions by counsel for the offender described him as "a man accustomed to engaging in the abuse of his vulnerable partner".
The written submissions included an acceptance that intoxication of the offender was "not a matter of mitigation". However in oral submissions, counsel proposed a finding of fact that the offender had a mistaken and irrational perception of being threatened by the deceased which was a result of his state of intoxication. She argued that it was possible to take this into account because s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) only prohibits "self-induced" intoxication being taken into account in mitigation. It was submitted that the intoxication arose from abuse of alcohol since the age of ten when it was not a matter of free choice. As a consequence, whenever the offender became intoxicated it was not "self-induced". Because I am not prepared to accept the account the offender gave to Dr Seidler it is unnecessary to resolve this.
The offender told Dr Seidler that he was on "strict protection" in custody which was his choice. He had served so much time in the "main" that he is tired of "the same rubbish" and believes gaol is "more easy going" in protection. He does not receive any visits but is comfortable about that.
The history of sexual abuse was claimed by the offender to be relevant to his offending in the following way: With respect to the impact that this abuse had on him, he reportedly does not trust males in general but feels very unsafe with men in his personal space, especially if he is not expecting this. Mr Dowling added that he tends to react with aggression and violence if he feels unsafe or threatened and this is an instinctual reaction that he perceives will neutralise any threat by discouraging someone from hurting him. Mr Dowling noted that he has been charged with violent offences on many occasions and he claimed that his offending has arisen out of these violent reactions in situations where he feels unsafe. Mr Dowling denied being hypervigilant per se but he claimed to startle easily and be instantly triggered to anger if a male touches him, especially unexpectedly, which he described triggers him to think about his experiences of abuse by males and how powerless and unsafe he felt at those times.
The offender told Dr Seidler that he has nightmares about the past abuse but he can also be triggered to memories of it when awake. This was occurring frequently in the period leading up to the offending.
In relation to other psychological factors, the offender believed that he has grown out of an ADHD condition with which he was diagnosed at about the age of five. He suffered bouts of depression, but Dr Seidler did not consider the symptoms were of sufficient severity to warrant formal diagnosis. He had attempted suicide but it was an isolated instance when he was aged about 18. He claimed to have suffered from anxiety in the past usually triggered by being in crowds or with some kind of performance anxiety and concern about consequences. He described intense cognitive worry that Dr Seidler said was ruminative in nature around males and in particular he worried about being threatened by a male, or being in a situation where another male is seeking to be dominant over him. He also endorsed suffering with episodes of panic on perhaps three or four occasions.
As to anger, Dr Seidler reported: Mr Dowling denied being an angry person by nature, although he can be triggered to anger by cues associated with his experience of sexual abuse. Moreover, he reported responding with aggression and at times, violence, in situations of threat around other males. Further, once triggered to anger or aggression, Mr Dowling claimed that this feels as if it is out of his control and he cannot regulate himself. (Emphasis added)
The offender told Dr Seidler he had consulted with mental health professionals on a number of occasions in the past but did not find it useful and does not believe it would be useful in the future.

Criminal history

The offender has a significant criminal history. It commenced in Queensland in 2004 with many offences committed in that State. There are matters of violence, including in respect of police officers and notably including an offence of "serious assault person over 60" on 9 November 2010. There were a number of relatively short sentences of imprisonment, some of them suspended.
The New South Wales criminal history commenced in 2010 when the offender was imprisoned for 4 months for damaging property. Suspended sentences of imprisonment, the longest for 12 months, were imposed in 2012 for offences of assault occasioning actual bodily harm, destroying or damaging property, and intimidation. Upon breach of the good behaviour bond the offender was ordered to serve full-time imprisonment.
The matter concerning the deceased was dealt with in the Toronto Local Court on 20 August 2013 with sentences of imprisonment for 9 months for the assault and 6 months for damaging property. On the same day he was sentenced for offences including an assault occasioning actual bodily harm upon his father to an overall term of imprisonment for 12 months with a non-parole period of 6 months.
On 3 September 2015 the offender was sentenced in the District Court at Newcastle for robbery in circumstances of aggravation (deprive a person of their liberty), aggravated car-jacking, not stop and drive at speed in a police pursuit, and driving with the middle-range PCA. He was on parole at the time in respect of the abovementioned sentences. There was a total effective sentence of 8 years with a non-parole component of 5 years. An appeal to the Court of Criminal Appeal was dismissed: Dowling v R [2017] NSWCCA 98.
In the judgment of Adamson J on the appeal (at [24]) there are some matters that are presently pertinent. They include that the sentencing judge had found the offender's moral culpability was reduced on account of his exposure ("acclimatised") to the abuse of alcohol and drugs as a young man, being "taught that abusing alcohol and drugs is normal" before being mature enough to make an informed decision on the subject. Reference was also made (at [21]) to the offender having given evidence that he would not re-offend because he had been sober for so long.
The offender was released when the non-parole period expired on 16 May 2019. He returned to custody on 10 February 2020 after being charged with an offence of damaging property for which he received a 4-month fixed term of imprisonment. That sentence expired on 9 June 2020 but parole had been revoked and he was not released until it was re-granted on 9 February 2021. His time at liberty was short-lived of course as he was arrested for the present matter five months later.
On 9 March 2023 the offender was sentenced for assault occasioning actual bodily harm to imprisonment for 18 months with a non-parole period of 12 months. This was an offence committed on 9 January 2020 when the offender was on parole for the abovementioned matter. It was not formally reported by the victim to police until after the offender came into custody upon his arrest on 3 July 2021 for the murder. The sentence was specified to commence on 3 December 2021.
The matter has some similarities. A statement of agreed facts discloses that the offender and the victim, Mr Jones, formed a casual relationship through Mr Jones' work and they would see each other once or twice a week. Mr Jones helped the offender with his shopping and other domestic tasks. The offender sometimes stayed at Mr Jones' house and there were occasions of sexual intimacy.
On 9 January 2020 the offender was at Mr Jones' house and after having mowed his lawn they sat out the back and drank some beers. The offender started behaving differently and started throwing chairs around the backyard. There was then an argument about whether the offender had taken Mr Jones' banking key card from his wallet. The offender thought Mr Jones was accusing him in order to have him sent back to gaol. They were in the vicinity of the kitchen and the offender grabbed Mr Jones by the back of his hair, dragged him towards the fridge and threw him on the floor. He then held Mr Jones' hair with both of his hands and slammed Mr Jones' head into the fridge, leaving dents.
The offender got on top of Mr Jones and had both hands on Mr Jones' face and neck area, causing Mr Jones difficulty in breathing. He persisted with this despite Mr Jones' pleas for him to desist and then banged his head against the floor. Mr Jones was coughing and spluttering and his false teeth became dislodged. He then said, "Zachary, settle let's just have a drink" and the offender appeared to "snap out of it", saying, "Righto then".

Dr Seidler's conclusions

In concluding her report, Dr Seidler summarised the various matters I have referred to above. Referring generally to the offender's life she said: Mr Dowling has been well entrenched within an antisocial peer culture, with a hedonistic and unstructured personal routine throughout adulthood. He denied any concerns related to institutionalisation but the history would suggest that Mr Dowling has few skills to cope in the community long term.
She suggested that Mr Dowling required intervention and support in a number of areas, including substance abuse, with Community Corrections taking an active approach to managing this in the community on parole; undertaking the Violent Offenders Treatment Program, with post-completion maintenance support available in gaol; management and medication in relation to his mental health concerns both in custody and in the community; long term psychological therapy addressing the ramifications of trauma and abuse, perhaps with participation in the RUSH program in custody and referral to a suitable clinician when in the community with funding via a referral to Victims Services; and engagement in a structured program of release and support within the community in relation to employment, accommodation and development of new, more prosocial, peer connections.
Finally, Dr Seidler recommended that the gender of those who work with the offender be considered, it being likely he would find it easier to work with and develop supportive relationships with females. (It might also reduce the risk for the therapist.)

Statutory aggravating factors

The offender concedes there are two statutory aggravating factors, although they do not elevate the objective seriousness of the offence.
First, he was on parole at the time of committing the offence, notably for a very serious offence in itself. Second, he had a record of previous convictions and that is particularly pertinent when he stands for sentence for a serious personal violence offence and has a record for committing offences of that type.
Counsel for the offender accepted that this was relevant to the emphasis to be given to specific deterrence, denunciation and protection of the community.

Purposes of sentencing

As for the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), personal deterrence, protection of the community and recognising the harm caused by the offender's conduct are particularly pertinent but they all have significance in varying degrees.

Subjective mitigating factors

The offender's moral culpability is reduced on account of his mental health issues and the circumstances of trauma and exposure to parental substance abuse, family violence, and sexual abuse during the course of his upbringing. In this regard I largely accept the written submissions of counsel for the offender at [10]-[13], [16]. I do not accept, however, that part of the submissions that contend that the violence towards Mr O'Sullivan was provoked by the perception by the offender of being threatened by him. I am unable to accept he felt at all threatened by a physically frail, vulnerable, unarmed, 65-year-old man in respect of whom in the preceding hours he had been feeling sufficiently confident and dominant enough to elbow and slap to the back of the head. Not having the advantage of hearing the offender give evidence at the sentencing hearing makes acceptance of this claim even more difficult.
Generally speaking, deterrence is usually an important feature of sentencing for domestic violence offences. However, I accept the reduction of the offender's moral culpability should lead to less emphasis being given to general deterrence (but not none at all). I accept the offender's concession that there needs to be greater weight placed on the protection of the community. That, and the need for personal deterrence, is because of the offender's repeated offending generally but particularly violent offender and while on parole.
Counsel accepted that there is an insufficient basis to make a finding that the offender is genuinely remorseful. I am satisfied that he is not at all remorseful, but he is not to be punished for that. It simply means he cannot expect the measure of leniency that might have been extended if he was remorseful.
The offender's history of repeated offending indicates his stated commitment to rehabilitation and avoiding further offending is doubtful. The same applies to his commitment towards abstinence from drugs and alcohol which Dr Seidler described as "likely naïve" and his belief that intervention by mental health professionals would not be useful. The offender indicated a similar commitment when he was sentenced for the aggravated robbery group of offences: Dowling v R at [21].
The offender is entitled to a sentencing discount of 25% for having entered his plea of guilty in the Local Court.

Special circumstances

It was submitted that "consideration should be given to a finding of special circumstances". I accept that there are some forms of therapeutic treatment that are needed by the offender that are not available in custody and, generally speaking, he would benefit from close supervision over a lengthy period. There will be ample time in the potential parole period allowed by the sentence to be imposed for that to occur, if he chooses to comply. The non-parole period will be the usual proportion of the total term but subject to some minor rounding down to achieve a practical result.

Comparative sentences

The Crown provided information about other cases with some relevant similarities with the present case. I have reviewed them and some others. As expected, no case is identical in all respects. The Crown (correctly with respect) emphasised that consistency in sentence is concerned with the application of principle.

Pre-sentence custody

The following matters are relevant to consideration of pre-sentence custody and the extent to which the sentence is to be backdated. 1. The offender has been in continuous custody since his arrest on 3 July 2021. 2. Parole was revoked solely because of the alleged commission of the murder and he served the balance of the term of the sentence for the aggravated robbery group of offences from 3 July 2021 to 20 May 2022. 3. He served the non-parole period for the assault occasioning actual bodily harm upon Mr Jones from 3 December 2021 to 2 December 2022. 4. He was entitled to statutory (automatic) parole from 3 December 2022 to 2 June 2023. That parole was not revoked. The only thing that prevented him being released was the fact he was bail refused in respect of the murder.
This decision is a matter for discretion and the application of the totality principle. I have taken into account: 1. It would be open to backdate the sentence as far as 3 July 2021 when the offender was arrested and refused bail. 2. I accept that the offence against Mr Jones was entirely separate which points towards a substantial degree of accumulation. 3. The revocation of parole was solely because of the commission of the index offence which points towards significant concurrency with service of balance of parole. 4. The 12-month non-parole and approximately 10.5-month balance of parole periods overlap by about 5½ months. 5. The balance of term of the sentence concerning the offence against Mr Jones should count completely as custody that is solely referable to the index offence because he would otherwise have been released on statutory parole if not for it.
Weighing all of this up I have resolved to commence the sentence 12 months after the offender entered custody, so from 3 July 2022.

Crimes (High Risk Offenders) Act 2006 (NSW)

The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to the offender. His solicitor will advise him of that fact and the ramifications of it.

Family victim impact statement

Finally, a family victim impact statement was provided by Mr Kevin O'Sullivan, older brother of Brian O'Sullivan. They were among the four children of their parents who grew up in Brisbane and enjoyed reasonably happy childhoods. Brian was described as a very dependable and supportive member of the family who had a beautiful and placid nature. He became a valued member of his community and a good uncle to his nephews and nieces. He suffered from hurtful homophobic attitudes but eventually began a relationship with the offender. Sadly, it became one which was tainted by abuse and ended in tragedy.
Kevin O'Sullivan is to be thanked for his courage in providing this statement. The terrible impact upon him, and all of the family and loved ones of Brian O'Sullivan who have suffered irredeemable loss, is beyond description. I extend to them my sincere condolences.

Sentence

Sentenced to imprisonment comprising a non-parole period of 16 years and 10 months and a balance of the term of the sentence of 5 years and 8 months. The sentence is to date from 3 July 2022. The offender will become eligible for release on parole upon the expiration of the non-parole period on 2 May 2039.
That is a total sentence of 22 years and 6 months. Without the plea of guilty, it would have been one of 30 years.
Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 the offence is to be recorded on the offender's criminal record as "a domestic violence offence".

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: 21 December 2023

At a glance

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