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District Court 4 December 2009

R v Jonathan LOWE

[2009] NSWDC 329

Homicide
SENTENCE MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT

Citation: R v Jonathan LOWE [2009] NSWDC 329
Court: District Court of New South Wales
Date: 4 December 2009
Judge(s): Murrell SC DCJ

Background

The offender, a 22-year-old man, lived in a detached flat on his family's rural property at Dural. In May 2008, while drug-dependent and using methamphetamine, he assisted a co-accused to manufacture an improvised explosive device (IED) containing a highly volatile substance called triacetonetriperoxide (TATP). The device was manufactured over several weeks at the offender's flat and sold to his drug supplier for $3,000, primarily to reduce the offender's drug debt.

After the purchaser indicated he had no immediate use for the device, the offender retrieved it and left it outside his flat. His father, the deceased, a scientist with relevant knowledge, discovered the IED, confronted the offender, and took it upon himself to dispose of it safely. Two or three days later, the IED exploded while the deceased was apparently attempting to dismantle it, fatally injuring him.

The offender was charged with manslaughter on the basis of an unlawful and dangerous act: manufacturing the IED. He initially contested causation but pleaded guilty after the Crown called its first witness at trial. He also undertook to give evidence in the separate trial of the co-accused.

  • Whether the offence fell within the mid-range of objective seriousness for manslaughter, given the indirect causal connection between the IED's manufacture and the deceased's death.
  • What weight to give to the offender's plea of guilty, his remorse, his personal circumstances, his drug dependency background, and his participation in a residential rehabilitation program.
  • What discount to apply for the offender's substantial assistance to authorities, including his undertaking to give evidence against the co-accused.
  • Whether the offender's sentence should be deferred under section 11 of the relevant Act to allow him to complete his rehabilitation program.

Decision

The court assessed the objective seriousness of the offence as towards the lower end of the mid-range. While the unlawful act itself was serious (manufacturing a lethal device for profit over several weeks), the causal link between that act and the deceased's death was indirect. The IED was not directed at the deceased, and the sequence of events leading to the death would have been difficult to foresee at the time of manufacture. The court also noted that the deceased, a scientist familiar with firearms and gunpowder, substantially contributed to his own death by attempting to dismantle the device himself.

The court identified several relevant aggravating factors under section 21A(2), including that the offence involved explosives, occurred at the victim's home, was planned, was committed for financial gain, and was committed while the offender was on conditional liberty. Mitigating factors included genuine remorse, good prospects of rehabilitation, the guilty plea, pre-trial disclosure, and the undertaking to give evidence against the co-accused.

The court set a starting point of five to six years full-time imprisonment, then applied a one-third discount for the guilty plea and the substantial section 23 assistance. This produced a non-parole period of two years and a balance of term of one year and nine months, with further deductions for time already served in custody and time spent on the residential rehabilitation program (ONE80TC), which the court treated as a partial deprivation of liberty.

The court placed significant weight on the offender's completion of the ONE80TC program. It found that failure to complete the program would very likely lead to relapse into drug dependency and further offending, and would also severely affect the offender's ability to come to terms with his father's death. In those circumstances, the court adjourned proceedings under section 11 to allow the offender to demonstrate rehabilitation, with the prospect of a periodic detention order rather than full-time imprisonment if he continued to participate well in the program.

Orders Made

  • The offender was found guilty of manslaughter.
  • Proceedings adjourned pursuant to section 11 to a date to be specified, to allow the offender to demonstrate rehabilitation through continued participation in the ONE80TC program.
  • Bail granted for that purpose.
  • If the offender continued to participate well in the program, proceedings to be further adjourned for the maximum period permitted under section 11, with a periodic detention order to follow.
  • If the offender failed to participate well in the program, the court indicated it would very likely impose a sentence of full-time imprisonment.

Key Takeaways

  • The District Court confirmed that the indirect nature of a causal connection between an unlawful act and a victim's death is a relevant factor in assessing the objective seriousness of a manslaughter offence, capable of placing it towards the lower end of the mid-range even where the act itself was dangerous and deliberate.
  • A victim's voluntary and informed intervention in circumstances contributing to their own death can reduce an offender's moral culpability for that death, even where causation is established.
  • Substantial assistance to authorities, including a credible undertaking to give evidence against a co-accused in a pending trial, attracted a significant sentencing discount when assessed as timely, truthful, reliable, and reasonably complete.
  • Where an offender is engaged in a structured, full-time residential rehabilitation program, time spent in the program may be treated as a partial deprivation of liberty warranting a reduction in the custodial component of any sentence.
  • Under section 11, a sentencing court may defer imposing a final sentence to allow an offender to demonstrate rehabilitation, with the nature of the ultimate penalty contingent on the offender's conduct during the adjournment period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 21A(2) and (3) (aggravating and mitigating factors)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 11 (adjournment for rehabilitation), section 23 (assistance to authorities)

Cases:
- No cases were cited in the portions of the judgment provided.