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Supreme Court 1 March 2018

R v Susan Dowdle

[2018] NSWSC 240

Homicide
CRIME SENTENCING MANSLAUGHTER SUBSTANTIAL IMPAIRMENT MERCY KILLING VICTIM SEDATED AND ASPHYXIATED

Citation: R v Susan Dowdle [2018] NSWSC 240
Court: Supreme Court of New South Wales
Date: 1 March 2018
Judge: Hamill J

Background

The offender, a 57-year-old woman, pleaded guilty to the manslaughter of her adult son, who had been severely brain-damaged in a car accident in 2008. From the time of the accident until his death, she was his primary carer. He had developed serious alcohol and drug dependencies, was frequently hospitalised, and was physically abusive toward her, including incidents of choking and burning.

On the night of 22-23 January 2016, after years of exhaustive caring, the offender sedated her son with medication she had obtained that afternoon, conducted internet searches about overdose, and then asphyxiated him by placing a plastic bag over his face. At the time, she was suffering a severe depressive episode arising from an underlying psychiatric condition, most likely bipolar disorder, though there was some evidence pointing to a diagnosis of schizophrenia dating back to when she was 19 years old.

The offender had originally been charged with murder. She offered a plea to manslaughter in July 2016 on the basis of substantial impairment, supported by psychiatric evidence from two experts. The Crown accepted that plea in September 2016, and it was formally entered in the Local Court on 3 October 2017. By the date of sentencing, she had already spent just over two years in custody.

  • What sentence was appropriate for manslaughter by a carer acting under a severe psychiatric disorder, in circumstances resembling a mercy killing?
  • What reduction, if any, applied for the utilitarian value of the guilty plea?
  • Were there special circumstances justifying a non-parole period shorter than the statutory default?
  • Should the offender be released immediately, given time already served?

Decision

Hamill J opened by acknowledging the profound gravity of any homicide offence. Even in circumstances of deep sympathy, the court was required to protect the sanctity of human life, impose adequate punishment, deter similar conduct, and hold the offender accountable. His Honour rejected a submission that a non-custodial bond was appropriate, concluding that a full-time custodial sentence was the only disposition available in a case involving an intentional killing.

On the question of objective seriousness, his Honour assessed the starting point at four years' imprisonment. The Crown accepted, and his Honour agreed, that a 25% reduction for the utilitarian value of the guilty plea was appropriate, reducing the head sentence to three years. His Honour then turned to the extraordinary mitigating circumstances: the offender's lengthy history of caring for a difficult and abusive dependent, her good character and the testimony of her employer, her severe psychiatric condition at the time of the offence, and her own difficult personal history including her husband's suicide and a troubled childhood.

His Honour found special circumstances justifying a non-parole period of two years rather than the standard proportion. Because the sentence was three years or less, the offender was entitled under s 158 of the Crimes (Administration of Sentences) Act 1999 to be released at the expiration of the non-parole period. That period had already expired by the date of sentencing. Accordingly, his Honour directed that the offender be released from custody forthwith.

His Honour also paused to acknowledge the deceased, noting that the law regards all human life as sacred regardless of whether a victim impact statement is tendered, and observing that the person most likely grieving the deceased was the offender herself.

Orders Made

  • The offender was convicted of manslaughter.
  • She was sentenced to a non-parole period of two years, commencing 23 January 2016 and expiring 22 January 2018.
  • A balance of term of one year, commencing 23 January 2018 and expiring 22 January 2019, was imposed.
  • The offender was to be released to parole at the expiration of the non-parole period.
  • His Honour directed that the offender be released from custody forthwith.

Key Takeaways

  • Even in deeply sympathetic cases, the Supreme Court held that a full-time custodial sentence remained the only appropriate disposition for an intentional killing, given the need to protect the sanctity of human life and give effect to the statutory purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.
  • A 25% reduction for the utilitarian value of a guilty plea was applied without controversy, consistent with established practice, where the plea was offered at an early stage and supported by psychiatric evidence.
  • Where a sentence of three years or less is imposed for manslaughter, s 158 of the Crimes (Administration of Sentences) Act 1999 entitles the offender to release at the expiration of the non-parole period, a provision that became decisive here because the non-parole period had already elapsed by the time of sentencing.
  • Special circumstances were found on the basis of the offender's first time in custody, the restricted conditions of her imprisonment, and her anticipated need for support upon reintegration into the community.
  • Substantial impairment by a major depressive disorder, arising from an underlying and longstanding psychiatric condition, operated as a significant mitigating factor at the sentencing stage, having already formed the basis for reducing the charge from murder to manslaughter.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- R v Dawes [2004] NSWCCA 363