Citation: R v Dowling (No 2) [2019] NSWDC 155
Court: District Court of New South Wales
Date: 6 May 2019
Judge: Lerve DCJ
Background
The offender was convicted of the manslaughter of Luke Doyle following a four-week trial in October and November 2018. The conviction, entered on 6 December 2018, arose from events on the night of 12 to 13 March 2012 in Young, New South Wales. The offender, the deceased, and two associates had spent the weekend together using a combination of illicit and prescription drugs, including oxycodone (OxyContin) and Xanax, and had also been drinking alcohol.
In the early hours of 13 March 2012, the deceased became seriously unwell at the home of an associate. He was vomiting and heavily sedated, plainly in need of urgent medical attention. Others present intended to take him to hospital. Instead, the offender drove him from that location to her own home, effectively removing him from those who would have assisted him, and then went to bed without calling for medical or any other help.
The deceased's body was found in the driveway next to the offender's utility vehicle by her mother at approximately 7.30am on 13 March 2012. The cause of death was multi-drug toxicity. These sentencing remarks followed the earlier verdict decision.
Legal Issues
- What sentence was appropriate for manslaughter by criminal negligence, where the offending consisted of a gross omission rather than a direct violent act?
- What weight should be given to the objective seriousness of the offence and the offender's moral culpability?
- Whether an Intensive Correction Order was an available sentencing option for manslaughter.
- Whether special circumstances existed justifying a non-parole period that differs from the standard statutory proportion.
- What weight, if any, should be given to delay between the offence and sentencing?
Decision
His Honour sentenced the offender following conviction at trial, noting at the outset that no discount was available for a guilty plea, while also making plain that the absence of a discount did not mean the sentence was increased by reason of the offender having exercised her right to put the Crown to proof.
The court found that the criminality lay in the offender's gross omission: she had isolated the deceased from others who were actively attempting to get him to hospital, taken him to her home, and then done nothing to summon help while he remained helpless and in obvious urgent need of medical attention. Lerve DCJ was satisfied beyond reasonable doubt that this omission significantly or substantially caused or accelerated the death, and that it amounted to gross criminal negligence, being a great falling short of the standard a reasonable person would have exercised in circumstances involving a high risk of death or grievous bodily harm.
On sentencing options, the court rejected the submission that an Intensive Correction Order was appropriate. Such an order is not available for manslaughter as a matter of law, and in any event the total sentence exceeded two years, placing it outside the threshold for that option regardless. His Honour found that a term of full-time imprisonment was the only appropriate response given the maximum penalty of 25 years and the fact that a human life had been lost.
The court made a modest finding of special circumstances, resulting in a non-parole period of approximately 67.5% of the total sentence rather than the standard 75%. His Honour was not persuaded that delay between the offence (2012) and sentencing (2019) warranted any separate reduction in sentence, having considered the offender's circumstances during that period.
Orders Made
- The offender was convicted of the unlawful killing of Luke Doyle on 13 March 2012 at Young, contrary to s 18(1)(b) of the Crimes Act 1900.
- The offender was sentenced to a total term of 7 years imprisonment.
- Non-parole period: 4 years and 9 months, commencing 6 May 2019 and expiring 5 February 2024.
- Balance of term on parole: 2 years and 3 months, commencing 6 February 2024 and expiring 5 May 2026.
- The court recommended the offender's release to parole at the expiration of the non-parole period.
Key Takeaways
- Manslaughter by criminal negligence can be established through a gross omission rather than a positive act: here, the court found the offender's failure to summon medical help for a helpless, dying person, after removing him from others who would have helped, satisfied the test from Nydam.
- An Intensive Correction Order is not available as a sentencing option for manslaughter in New South Wales, irrespective of the circumstances of the offence or the offender.
- A finding of special circumstances can justify reducing the non-parole period below the statutory default, with the extent of the reduction depending on the individual facts and the offender's rehabilitation prospects.
- Where an offender takes a dying person away from potential rescuers and then fails to act, that sequence of conduct forms the basis for criminal liability even absent a pre-existing formal duty of care, provided gross negligence and causation are established.
- The District Court reaffirmed that no sentence of imprisonment can reflect the value of a human life; the sentence instead must reflect adequate punishment, deterrence, denunciation, and the other purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases:
- R v Tracey Lee Dowling [2018] NSWDC 367 (verdict decision in the same matter)
- R v Barnett [2016] NSWDC 302
- R v Magro [2019] NSWSC 343
- R v Tristan Lee [2019] NSWDC 59
- Dipangkear v R [2010] NSWCCA 156
- R v Byrne (1998) 104 A Crim R 456
- R v Hopley [2008] NSWCCA 105
- Hoskins v R [2016] NSWCCA 57
- Mead v Mead [2007] HCA 25
- DPP v Pinn [2015] NSWSC 1684
- R v Anderson [2012] NSWCCA 175
- R v Donald [2013] NSWCCA 238