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Supreme Court 21 August 2000

R v Bowtell

[2000] NSWSC 803

Homicide
CRIMINAL LAW SENTENCE REDETERMINATION OF LIFE SENTENCE

Citation: R v Bowtell [2000] NSWSC 803
Court: Supreme Court of New South Wales (Common Law Division)
Date: 21 August 2000
Judge(s): Hidden J

Background

The applicant was sentenced to penal servitude for life on 20 July 1989 after pleading guilty to manslaughter on the basis of diminished responsibility. The Crown accepted this plea in full satisfaction of a murder indictment. The offending occurred in September 1988 when the applicant was 17 years old, and the sentencing judge, Mathews J, described the circumstances as the worst she had ever encountered.

The offence involved an unprovoked and fatal attack on an 81-year-old woman who was a stranger to the applicant, accompanied by serious sexual violence and other degrading conduct. At the time of the offence, the applicant was on bail for an armed robbery committed the previous month.

More than a decade after the original sentence, the applicant sought redetermination of his life sentence under s 13A of the Sentencing Act 1989, seeking the court to set minimum and additional terms in place of the indeterminate sentence.

  • Whether the life sentence should be redetermined by substituting a fixed total sentence with minimum and additional terms
  • What total sentence and minimum term were appropriate, having regard to the nature and objective gravity of the offending, the applicant's background, psychiatric history, and progress in custody
  • How to treat the pre-existing concurrent sentence for armed robbery when calculating the commencement date of the minimum term

Decision

Hidden J granted the application and substituted a determinate sentence for the original life term. His Honour considered the extreme objective seriousness of the offence, balanced against the applicant's youth at the time (17 years old), his significantly disturbed psychiatric state, his deprived background, his low intelligence, and the substantial period he had already spent in custody.

The court referred to comparable redetermination decisions, including the Court of Criminal Appeal's decision in R v Previtera and other similar applications, noting that while those cases offered some assistance, the differences between them and the present case were as significant as the similarities.

In arriving at the minimum term, His Honour took into account the concurrent armed robbery sentence, which had been imposed under the Probation and Parole Act 1983. That sentence carried a non-probation period (rather than a conventional non-parole period), and the applicant was likely released from it after approximately 12 months once remissions were applied. The minimum term was accordingly dated from 23 September 1988, the date the applicant was first remanded in custody in respect of the manslaughter offence.

His Honour noted that, should the applicant be released on parole, a lengthy period of supervision and the sanction of parole was desirable. The court also confirmed that, despite the application having been made under the (now repealed) Sentencing Act 1989, the transitional provisions of Schedule 2 to the Crimes (Sentencing Procedure) Act 1999 meant the application was to be dealt with under the earlier Act, though the relevant substantive provisions of both Acts were the same.

Orders Made

  • Application granted
  • Life sentence set aside and replaced with a total sentence of 21 years imprisonment
  • Minimum term of 15 years, dating from 23 September 1988, expiring 22 September 2003
  • Applicant eligible for release on parole from 23 September 2003
  • Formal orders to be pronounced after hearing from the parties on the appropriate procedure

Key Takeaways

  • Under s 13A of the Sentencing Act 1989 (now reflected in Schedule 1 to the Crimes (Sentencing Procedure) Act 1999), an offender serving an indeterminate life sentence may apply to the Supreme Court to have minimum and additional terms set in substitution for that sentence.
  • A guilty plea to manslaughter on the basis of diminished responsibility, even in circumstances of extreme objective gravity, does not preclude a successful redetermination application where factors including youth, psychiatric impairment, and background are established.
  • Where a concurrent sentence imposed under the Probation and Parole Act 1983 was in force at the time of the relevant offending, the court treated what was formally a "non-probation period" differently from a standard non-parole period, and factored in the likely effect of remissions on the actual time served under that sentence.
  • Comparable redetermination decisions serve as a useful but limited guide; the court emphasised that differences between cases are as significant as similarities.
  • Suitability for parole in redetermination cases may warrant a lengthy additional term to ensure adequate supervision upon release.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1 and Schedule 2, cl 21(2)
- Probation and Parole Act 1983 (NSW), ss 5 and 11(1)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Previtera (1997) 94 A Crim R 76
- R v Patrick Francis Horan (unreported, 20 March 1998)
- R v Leaver (Court of Criminal Appeal, unreported, 23 November 1994)