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Supreme Court 20 December 2023

R v Dowling

[2023] NSWSC 1620

Assault & violenceHomicideDomestic & family violence

Citation: R v Dowling [2023] NSWSC 1620
Court: Supreme Court of New South Wales
Date: 20 December 2023
Judge(s): R A Hulme AJ

Background

The offender, a solidly built man aged 35 at the time of the offence, pleaded guilty to the murder of his long-term male partner, aged 65, at a boarding house in Mayfield, Newcastle on 29 June 2021. The deceased was physically frail, suffered from right brachial plexus palsy and traumatic brain injury, and was significantly smaller and lighter than the offender. The two had been in an on-and-off relationship since at least 2004.

The relationship had a documented history of violence. The offender had been convicted of assault occasioning actual bodily harm against the deceased as far back as 2012, and neighbours had repeatedly witnessed or reported incidents of violence in the period before the killing. In the fortnight before the murder, complaints had also been made about the offender's alcohol consumption at the boarding house.

The offender killed the deceased by forcibly pushing his lower dentures from his mouth into the back of his throat, causing death by asphyxiation. He left the boarding house shortly afterwards and did not return for two days, leaving the body in his bedroom. The plea was accepted on the basis of reckless indifference to human life rather than an intention to kill.

  • What is the appropriate sentence for murder committed with reckless indifference to human life, having regard to the standard non-parole period of 20 years as a statutory guidepost?
  • How should the vulnerability of the deceased, the history of domestic violence, and the circumstances of the killing bear on objective seriousness and the offender's moral culpability?
  • What weight should be given to the offender's traumatic upbringing (including parental substance abuse and instances of sexual abuse) in assessing moral culpability, and how does that affect the balance between general deterrence and community protection?
  • How should the sentence be structured in light of an existing sentence the offender was serving at the time of the murder, including the effect of revoked parole?
  • Whether the offence must be recorded as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Decision

The court assessed the offence as serious, reflecting the deliberate and sustained nature of the violence, the extreme vulnerability of the deceased through age, physical frailty, and the power imbalance in the relationship, and the callous abandonment of the body. The agreed facts established a reckless indifference state of mind, and the plea was accepted and sentenced on that basis. The court took into account that the deceased had been subjected to violence both on the day of the killing and throughout the relationship, including being slapped in the presence of CCTV cameras shortly before his death.

The offender offered no remorse. His account to a psychologist was found to be inconsistent with the agreed facts, which further undermined any basis for a favourable finding on that matter. The court noted that the offender's upbringing involved parental substance abuse and instances of sexual abuse, which reduced his moral culpability to some degree. However, that reduction did not translate to a significant lessening of the sentence: the court placed less emphasis on general deterrence as a result but gave greater weight to community protection, given the offender's history of violence towards the deceased and others.

The court considered the sentencing structure carefully in light of a pre-existing sentence the offender was serving at the time of the murder, involving an offence against another person. The revocation of parole had resulted directly from the commission of this offence, and the court resolved to commence the murder sentence 12 months after the offender first entered custody, being 3 July 2022. The court adopted a substantial degree of accumulation while also recognising significant concurrency was appropriate given the circumstances of the revocation.

The court also noted the potential future application of the Crimes (High Risk Offenders) Act 2006 (NSW) to the offender.

Orders Made

  • The offender was sentenced to a total term of 22 years and 6 months imprisonment, comprising a non-parole period of 16 years and 10 months and a balance of term of 5 years and 8 months.
  • The sentence is to date from 3 July 2022, with the offender becoming eligible for parole on 2 May 2039.
  • The court noted that, absent the plea of guilty, the sentence would have been 30 years.
  • Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the offence is to be recorded on the offender's criminal record as a domestic violence offence.

Key Takeaways

  • Where a murder is committed with reckless indifference to human life in a domestic violence context, the vulnerability of the deceased, the history of violence, and the abandonment of the body are all relevant aggravating features that bear on objective seriousness.
  • A traumatic upbringing involving substance-abusing parents and sexual abuse can reduce an offender's moral culpability, but reduced culpability does not uniformly reduce the sentence: it may shift the sentencing emphasis away from general deterrence and toward community protection instead.
  • Absence of remorse, combined with an account to a psychologist that contradicts agreed facts, will be treated as a neutral or adverse factor at sentencing and will not support any mitigatory finding on remorse.
  • Under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a court sentencing for an offence involving a domestic relationship must record the conviction as a domestic violence offence; this is a mandatory declaration, not a discretionary one.
  • The Supreme Court confirmed that, when an existing parole is revoked solely because of the commission of the index offence, a significant degree of concurrency between the new sentence and the balance of the earlier parole period is appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5 and 12(2)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A and 21A(5AA)

Cases:
- Dowling v R [2017] NSWCCA 98