It involves the mercy killing of a son by his mother; a mother who had, for many years, cared for her son who was severely disabled as a result of a terrible car accident. He had become, partially at least as a result of that accident, an alcoholic and a drug abuser He was abusive to her and he was extremely needy. Since 28 August 2008 Ms Dowdle tried her best to care for her son and was relentless in her pursuit of his needs and was his staunchest advocate. On 22-23 January 2016 Ms Dowdle could take it no longer. At some stage in the afternoon, possibly at around 3.40pm when she made a 'phone call to a doctor trying to obtain some sedatives for her son who was both drunk and out of control, she set upon a course which manifested that night in her killing him.
She obtained the sedatives and, at some stage during the evening, she made searches on the Internet concerning overdose from the sedative she had obtained. She made a record of the sedatives she was administering, as she had done over many years, and then she placed a plastic bag over his face and he died of asphyxiation.
At that time she was substantially impaired by a major depressive disorder which had its genesis in earlier and underlying psychiatric conditions, probably bipolar disorder, although there is some evidence in the material of the suggestion of schizophrenia, for which she may have been diagnosed and treated poorly, when she was 19 years of age.
Ms Dowdle pleaded guilty to manslaughter when the matter was in the Local Court. The basis of her plea was that she was so substantially impaired by the psychiatric disorders to which I have referred that her liability for murder, with which she was then charged, should be reduced to manslaughter. In making an offer to plead guilty to manslaughter on 15 July 2016, she provided the prosecuting authorities with a report of Dr Richard Furst dated 13 July 2016. The Crown subsequently engaged a Dr Anthony Samuels, who provided a report which is quite lengthy but which ultimately supported the availability of the defence of substantial impairment, a defence which is a partial excuse for homicide and reduces what would otherwise be murder to the crime of manslaughter.
R v Susan Dowdle [2018] NSWSC 240 | Case summary | Zoe
It was on 18 September 2016 that the Crown indicated it would accept Ms Dowdle's offer to plead guilty and that plea was formally entered in the Local Court on 3 October 2017. It is not controversial in those circumstances that the penalty should be reduced as a result of what lawyers like to call the "utilitarian value" of her plea. Generally, the maximum reduction for such utilitarian value is 25%. The Crown Prosecutor does not contest that that is appropriate in this case and so I propose to reduce the penalty that would otherwise be imposed by that mathematical number, 25%.
The crime of manslaughter is one of the most serious crimes known to the law. It carries a maximum penalty of 25 years' imprisonment. Fundamental in any sentencing exercise concerning homicide is the need for the law to protect, and to be seen to protect, the sanctity of human life. That is reflected in the maximum penalty and the maximum penalty must always be borne in mind by judges called upon to sentence people for the taking of another person's life.
Sympathy which is legitimately aroused, and leniency and compassion that should properly be afforded, must never mask the objective gravity of any offence of homicide, especially a homicide such as this one, where an offender has set about to take human life and acted with an intention to kill. Sentencing in such cases, even in the extraordinary sad and compelling circumstances that apply here, must be seen to send a message to the community that nobody, however desperate things may get, is justified in taking it upon themselves to expunge human life.
The purposes of punishment as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) must always be kept firmly in mind, as must the maximum penalty applicable to an offence of this seriousness. I have to ensure that Ms Dowdle is adequately punished. I have to prevent similar offences by deterring other people from committing such offences. I have to protect the community, to make Ms Dowdle accountable for her actions, to denounce her conduct and recognise the harm done both to the victim, her son, and to the community. And I must also promote the rehabilitation of the offender.
The learned Crown Prosecutor, with his customary fairness and decency, accepts that those purposes, in the present case, would be satisfied by the imposition of a sentence of imprisonment which would end soon. At this stage, Ms Dowdle has been in custody since her arrest on 23 January 2016, so she has spent a little over two years in gaol. Ms Manuell, Senior Counsel for Ms Dowdle, has contemplated that given the amount of time her client has spent in custody, it may be an appropriate case in which to impose a bond of some kind, having taken into account the fact that she has already served a prison sentence of a little more that two years.
I accept the concession made by the Crown. However, I am unable to accept the submission that a bond is appropriate. I am satisfied that the only appropriate disposition of this case is the imposition of a custodial sentence. However, I am satisfied that Ms Dowdle has been punished enough and I intend, when I make my formal orders, to direct her immediate release from custody. It is necessary before I get to that, though, to go through with a little more particularity the extraordinarily sad circumstances that brings us all here today.
Ms Dowdle is a 57 year old woman. She had two sons, Digby, now deceased, who was born in July 1989, and Roy, who was born in 1992. She and her husband divorced in 2005 and her ex-husband committed suicide in 2006. It was at that stage that the offender came to take care of both of the boys, now teenagers. Digby was then 16. It was a hard time for her, partially because of the history of difficulties she had in her childhood, which I will speak to presently.
In 2008 things got very much worse. Digby was involved in a car accident and, as a result, suffered multiple injuries, including serious brain damage. This changed him. His girlfriend at the time said that his behaviour and personality changed:
"His personality was affected by the accident and I feel like he took it out on his mum more, and Sue [that is Ms Dowdle] would be running around, picking up the pieces. Digby took advantage of her unconditional love for him and she was always worrying about him".
Today I had the benefit of hearing some evidence from Mr Terence Taylor, who also described the difficulties that Ms Dowdle had from 2008 or thereabouts until the tragic events of 2016. Mr Taylor was Ms Dowdle's boss at work. He told me that the deceased was a troubled boy who would ring his mother often and constantly, would turn up at her workplace, he had become an alcoholic, he took drugs. Even though Ms Dowdle never complained and never said anything adverse about her son, it was obvious to Mr Taylor that things were taking their toll on her. He observed injuries to her and, even though she was generally what he called "closed", she told him about incidents of violence when her son would choke or attempt to choke her. He observed, on one occasion at least, cigarette burns or a cigarette burn, and he saw bruises.
It was, as I have said, a terrible time for Ms Dowdle and she did her best. I can scarcely imagine how difficult that must have been for her.
In any event, in spite of everything, and what must have seemed to be the hopelessness of the situation, she continued to be Digby's advocate, she assisted him in prosecuting a personal injuries claim for which he received a substantial payout, she then assisted him in using that money sensibly, whereas he had, it seems, a tendency to waste the money, and she arranged for him to buy his own home.
There are descriptions of Digby's mental state included in the evidence including the fact that he was would start drinking at 9am and drink until he passed out, that he would fall down stairs, that he had frequent altercations with neighbours and police. His mother told Dr Anand that she may need to call the police twice a week and that he was hospitalised as often as that. Dr Anand noted at that time that he has a very supportive mother and brother but they appear to be under severe strain because of his ongoing issues with substances. He noted the multiple engagements that Digby had with drug and alcohol services, counsellors, psychiatrists, psychologists, in an attempt to deal with those problems which arose at least largely, if not entirely, out of the car accident. Ms Dowdle tried from time to time to get her son into drug and alcohol programs, she tried at times to get him into mental health facilities but it seems for the most part she found herself alone in trying to deal with the difficulties that existed for her son, his brother and for her.
By January of 2016 I accept that Ms Dowdle was in a state of pathological or medical depression and that that was a result of a combination of factors including an underlying condition about which there are some conflicting opinions but which unquestionably existed and probably comprised bipolar disorder but also resulting from what I can only imagine would have been the exhaustion of caring for her son, on her own, with all of those difficulties he had over many, many years. And so it was that the events of 22 January 2016 unfolded.
Certainly Ms Dowdle did not instigate those events. At that stage, on that day, Digby called her at about 3 o'clock and was noticeably drunk. He asked his mother to buy him "credits for the Internet" and, if she would not do, he asked or demanded that she take him to the beach. Digby's brother's girlfriend questioned Ms Dowdle about the wisdom of going to Digby's house when he was drunk but she said stoically: "If I don't go he'll come over to your house and then it will be everyone's fault". So, as she had done many times before, she responded to the cry for help from her disabled son and she took him to the beach as he had asked her to do. While they were at the beach a stranger noted that she was on the 'phone, that is Ms Dowdle was on the phone, and it has emerged that she was on the phone to a family doctor, Dr Suri, and said to him:
"I have Digby with me, Digby is drunk. Can you write me a prescription for a sedative, I can't manage him on my own. The psych hospital can't help us, the police can't help us, we are looking into having him admitted to involuntary drug and alcohol treatment at the North Shore Hospital".
Dr Suri, who had a fairly good idea of the difficulties confronting both mother and son, agreed to write a prescription and that she could pick it up from his surgery. She did so and that script was filled at a local chemist. It was for a sedative called Zopiclone.
Ms Dowdle then went to a local bottle shop and purchased some bourbon and coke and they returned to Digby's house. She made him a bed on the floor downstairs because of the concern that if he went upstairs he may fall down as he had before. Both of them consumed some bourbon and coke and she told police later that she massaged his feet and face and was administering the sedative Zopiclone as he was lying on the couch cushions on the lounge room floor. She recorded the times and the amounts of the drug that she gave him because that was something that she had always done.
There were some Internet searches made by her at 8 o'clock or 8.10 and 10.30pm and they were searches relating to overdosing on that drug. There was evidence that those searches were deleted from the search history.
Then, shortly before 11pm, Ms Dowdle sent a message to her partner Sam, saying, "He's dead". Sam replied, asking "Who's dead?" She responded, "My son, my mess".
Digby's brother Roy came over to the house because he lived nearby and the offender told him:
"You don't need to worry about this, just say goodbye to your brother, I helped him die and it is now my responsibility and I take responsibility for that".
Roy called triple-0 and police attended the scene and the offender explained that "he was not sleeping, he was carrying on with his usual garbage and that she had got a plastic bag, put it over his head, he was placid, he was simply placid." She was asked whether she had murdered her son to which she said, "Tricky, I think, I think possibly made that choice." She told the police why she would do that and her explanation was:
"That she wanted to end his pain, to just stop the pain. I think as a mother I don't know there was that, there was, there was that, I've reached out for years and years and years and watched his pain, pain, pain, pain".
The police placed Ms Dowdle under arrest and she has been in custody ever since.
The Crown Prosecutor points to a number of possible aggravating circumstances arising from that set of facts. I accept that the victim was vulnerable because of his disability and his intoxication, that the offence took place in his own home where he was entitled to feel safe. While I do not think it should be taken into account, technically under 21A of the Crimes (Sentencing Procedure) Act, the reality is that Ms Dowdle was his guardian and mother and, in a sense, was in a position of trust and the person who had looked after him for many years and, even then, was morally obliged to protect him. The Crown also pointed to the fact that the plastic bag was used as a weapon and whilst that is a matter to be taken into account in an assessment of the objective gravity, I do not think in the circumstances it further aggravates the offending.
Against that there are a number of mitigating factors. Perhaps most compelling is the history that I have recounted and the fact that Ms Dowdle had over many years protected her son and done everything, in most awful of circumstances, to make his life as good as it could be. Of course her mental condition has resulted in the charge being reduced from murder to manslaughter and I do not think it is appropriate in the circumstances to further mitigate the seriousness of the offence by reference to that consideration.
However, there is no doubt that Ms Dowdle is a person of good character. There is an abundance of evidence of that before me and the Crown does not gainsay that proposition. Again, referring back to the evidence I heard from Mr Taylor, the offender was - I am sorry - Ms Dowdle was in employment for many years at a school for children with special needs. She was essentially at the front line of the school, in the front office, and she held that position I think for some seven years and she did so with great distinction according to Mr Taylor, who was then the principal of that school. He has in fact travelled from India to give evidence in these proceedings and will travel back there tomorrow, which gives some indication of his opinion of Ms Dowdle. She is unquestionably a person of good character.
She has one prior offence on her criminal record being an offence of middle range PCA in 2008. I propose to disregard that offence and comfortably find that she is a person who has no significant record of previous convictions. There is nothing in her past, and nothing in the reports including a presentence report prepared recently, which suggests that she will ever offend again and I find that she has excellent prospects of rehabilitation.
The offence was not part of a planned or organised criminal activity and of course she has by her actions throughout demonstrated significant remorse.
Going back to speak briefly about her life before she married and then divorced and had the children, she also had a troubled childhood herself. There is evidence before me that she was subject to sexual abuse by two relatives, the people who should have been protecting her. There is evidence that by her late teenage years she suffered from a significant psychological or psychiatric illness and indeed was admitted to a psychiatric hospital and treated with electroconvulsive therapy. She may have had schizophrenia. She may have had a bipolar disorder. But certainly she had real psychiatric problems even as a teenage girl and therein lies the underlying condition relevant to her ultimate defence of substantial impairment.
As I have said, she was a highly regarded employee at the special school and the courtroom is almost full with members of her family and supporters, many of whom have travelled great distances to be here. I think that community and family support that she has will be very important as she goes back into the community, as shortly she will, and attempts to pick up the pieces of her life.
In the case of R v Dawes [2004] NSWCCA 363 the Court of Criminal Appeal by majority held that the imposition of a bond in similar circumstances was inadequate. Ms Manuell correctly points out that that was not a case in which the offender has spent two years in custody, but it is not so much the result, but rather the words of Barr J, who thought a bond was appropriate, that Ms Manuell quotes and I would like to quote as well because I think those words resonate in the present case. What Barr J said at [71] was:
"I find it almost impossible to comprehend the combined effect on the respondent of the waves of misfortune which had swept over her. For her, life was almost unbelievably cruel."
And I think the same applies to Ms Dowdle.
There have not been, as is often the case, any victims impact statements tendered. I suspect the person who grieves Digby the most is in fact sitting before me in the dock. I am sure his brother too, and I am not sure if he is present, misses him, but I do take a moment to remember Digby. As I have said, the law regards all human life as sacred whether someone comes along and reads a victim's impact statement or not. He obviously had a troubled life and I think we all now should take a moment to remember him.
Because human life has been taken, as I have said, I have come to the conclusion that no sentence other than a full-time custodial sentence is appropriate. I would assess, in the extraordinary circumstances of the present case, that an appropriate starting point for that sentence would be four years. I would reduce that sentence by 25% for the utilitarian value of the plea, resulting in a total (head) sentence of three years.
I accept that there are special circumstances in the case, not least of which is the fact that the evidence before me suggests that Ms Dowdle has been restricted to two visits a week by Corrective Services over the last two years. It is her first custodial sentence and she will need time to adjust to life back in the community. Having found special circumstances, I propose a non-parole period of two years.
I should also indicate because the sentence is three years or less, Ms Dowdle will be entitled to be released at the expiration of the non-parole period: Crimes (Administration of Sentences) Act 1999 (NSW) s 158. That non-parole period has already expired.
Ms Dowdle, I am now going to sentence you.
1. You are convicted.
2. You are sentenced to a non-parole period of two years commencing on 23 January 2016 and expiring on 22 January 2018.
3. There will be a balance of term of one year commencing on 23 January 2018 and expiring on 22 January 2019.
4. You are to be released to parole at the expiration of the non-parole period.
5. I direct that Ms Dowdle be released from custody forthwith.
6. I must advise you that because you have been charged with the crime of manslaughter, the provisions of the Crimes (High Risk Offenders) Act apply to you and I leave it to Ms Manuell and your solicitor to explain what that means.
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Decision last updated: 02 March 2018