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Supreme Court 11 November 2024

R v Bowden

[2024] NSWSC 1428

Assault & violenceHomicide
CRIME SENTENCE MANSLAUGHTER EXCESSIVE SELF DEFENCE FINDINGS OF FACT AFTER TRIAL

Citation: R v Bowden [2024] NSWSC 1428
Court: Supreme Court of New South Wales
Date: 11 November 2024
Judge(s): Yehia J

Background

In the early hours of 24 September 2020, the offender stabbed the deceased in the chest at a reserve in Emu Plains, causing his death. The deceased was 23 years old; the offender was 21 at the time and 25 at sentencing. The offender was arrested in November 2020, refused bail, and has remained in custody since.

Four men, including the offender, were charged with murder on the basis of joint criminal enterprise. At an Early Appropriate Guilty Plea (EAGP) case conference, the offender offered to plead guilty to manslaughter on the basis of extreme provocation. The Crown rejected that offer. The matter proceeded to a six-week joint trial.

The jury acquitted the three co-accused of both murder and manslaughter. It returned a verdict of not guilty of murder but guilty of manslaughter in respect of the offender. Sentencing proceedings were conducted on 6 November 2024.

  • What findings of fact should the sentencing judge make, consistently with the jury's manslaughter verdict, as to the basis on which manslaughter was established (extreme provocation, unlawful and dangerous act, or excessive self-defence)?
  • Whether the offender intended to kill the deceased or only to inflict grievous bodily harm.
  • Whether the offender's complex post-traumatic stress disorder (PTSD) materially contributed to the offence and reduced his moral culpability.
  • What weight to give the offender's severely disadvantaged and deprived background, his youth, and his prospects of rehabilitation.
  • Whether a 25% sentencing discount applied under the EAGP provisions, given the Crown had previously rejected the offender's plea offer to manslaughter.
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio.

Decision

Factual findings after trial. Yehia J applied the well-established principles from R v Isaacs (1997), which require that findings adverse to an offender at sentencing be established beyond reasonable doubt, and that the facts adopted must be consistent with the jury's verdict. The primary Crown eyewitness, the offender's then-girlfriend, was found to lack credibility and reliability; the jury's acquittal of the co-accused was consistent with rejection of her evidence. The judge declined to make findings based on her evidence alone.

Basis for the manslaughter verdict. Because manslaughter had been left to the jury on three alternative bases, the judge was required to identify which basis was consistent with the verdict. Her Honour found that the manslaughter was established on the basis of excessive self-defence, meaning the offender believed on reasonable grounds that his actions were necessary to defend himself, but used more force than was reasonably necessary. The judge also found, on the evidence, that the offender intended to cause grievous bodily harm rather than to kill.

Moral culpability and subjective matters. The offender's complex PTSD was found to have materially contributed to the offence, reducing his moral culpability. His severely disadvantaged and deprived background, consistent with the principles in Bugmy v The Queen (2013), further reduced that culpability. His youth at the time of the offending was also a mitigating factor. The court found the offender had very good prospects of rehabilitation and was unlikely to reoffend.

Discount and special circumstances. A 25% discount was applied under ss 25E(2) and 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), reflecting the utilitarian value of the manslaughter plea offered and rejected at the EAGP stage. Special circumstances were found to exist, warranting a significant variation of the standard non-parole period ratio, given the offender's mental health needs upon release, the significant period spent in segregation (including during COVID-19 restrictions), the fact this was his first time in custody, and his strong rehabilitation prospects.

Orders Made

  • The offender is convicted of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
  • Sentenced to 7 years imprisonment, with a non-parole period of 4 years and 1 month commencing 10 November 2020 and expiring 9 December 2024; additional term of 2 years and 11 months expiring 9 November 2027.
  • First eligible for release on parole: 9 December 2024.
  • A 25% discount applied to reflect the utilitarian value of the guilty plea.
  • The offender's legal representatives directed to advise him of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application to the offence, in compliance with s 25C of that Act.

Key Takeaways

  • Under the EAGP scheme in the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% discount is available even where a plea offer to a lesser offence was made and rejected by the Crown at the case conference stage, and the offender is later convicted of that lesser offence at trial.

  • Where manslaughter is left to a jury on multiple alternative bases, the sentencing judge must determine, consistently with the verdict and beyond reasonable doubt, which factual basis underpins the conviction before fixing sentence.

  • A finding that complex PTSD materially contributed to an offence can reduce an offender's moral culpability; this sits alongside, but is analytically separate from, the mitigating effect of a severely deprived and disadvantaged background as recognised in Bugmy v The Queen.

  • Special circumstances justifying a variation to the non-parole period ratio can rest on a combination of factors, including mental health needs on release, extended periods of custody in segregation, first-time incarceration, and strong rehabilitation prospects.

  • The Supreme Court emphasised that no sentence can measure the value of a life lost; the sentencing exercise reflects proper principle, not an equation of punishment with human worth.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 25E(2), 25E(3)(a)
- Evidence Act 1995 (NSW), s 32

Cases
- R v Isaacs (1997) 41 NSWLR 374
- Bugmy v The Queen (2013) 249 CLR 571
- BAP v R [2024] NSWCCA 206
- BP v R (2010) 201 A Crim R 379
- Britton v R [2024] NSWCCA 138
- Davidson v R (2022) 300 A Crim R 214
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- DS v R; DM v R (2022) 109 NSWLR 82
- Goundar v R [2012] NSWCCA 87
- KT v R (2008) 182 A Crim R 571
- Newburn v R [2022] NSWCCA 139
- Patel v R [2019] NSWCCA 170
- R v Dawes [2004] NSWCCA 363
- R v Edwards (1996) 90 A Crim R 510
- R v Hoerler (2004) 147 A Crim R 520
- R v King; R v York [2024] NSWSC 620
- R v Loveridge (2014) 243 A Crim R 31
- R v MJ [2023] NSWCCA 306
- R v Wood (2014) 244 A Crim R 501