R v Bowden

[2024] NSWSC 1428

Supreme Court

New South Wales

Medium Neutral Citation:

R v Bowden [2024] NSWSC 1428

Hearing dates:

6 November 2024

Date of orders:

11 November 2024

Decision date:

11 November 2024

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1)   Mr Bowden is convicted.

(2)   Mr Bowden is sentenced to a period of imprisonment of 7 years. The Court sets a non-parole period of 4 years and 1 month commencing on 10 November 2020 and expiring on 9 December 2024, with an additional term of 2 years and 11 months, expiring on 9 November 2027. The first date upon which Mr Bowden is eligible for release on parole is 9 December 2024.

(3)   In fixing the sentence, I have applied a 25% discount to reflect the utilitarian value of the plea of guilty.

(4) In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. I direct that the offender’s legal representatives advise him of the existence of the Act and its application to this offence.

Catchwords:

CRIME – Sentence – manslaughter – excessive self-defence – findings of fact after trial – whether the offender intended to kill the deceased as opposed to inflict grievous bodily harm – whether the offender’s complex post-traumatic stress disorder materially contributed to the offence – disadvantaged and deprived background – youth – reduction in moral culpability – very good prospects of rehabilitation – unlikely to reoffend

Legislation Cited:

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), 21A(2)(b), 21A(2)(c), 25E(2), 25E(3)(a)

Evidence Act 1995 (NSW), s 32

Cases Cited:

BAP v R [2024] NSWCCA 206

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

Britton v R [2024] NSWCCA 138

BugmyvThe Queen (2013) 249 CLR 571; [2013] HCA 37

Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153

Director of Public Prosecutions (Cth) vDe La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R;DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Goundar v R [2012] NSWCCA 87

KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51

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; [2004] NSWCCA 184

R v Isaacs (1997) 41 NSWLR 374

R v King; R v York [2024] NSWSC 620

R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120

R v McDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep)

R v MJ [2023] NSWCCA 306

R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184

Smith v R [2015] NSWCCA 193

Tammer-Spence v R [2013] NSWCCA 297

TM v R [2023] NSWCCA 185

Category:

Sentence

Parties:

Rex (Crown)
Jayden Bowden (Offender)

Representation:

Counsel:
S Sloane (Crown)
A Evers (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Offender)

File Number(s):

2020/00320700

JUDGMENT

1. In the early hours of 24 September 2020, Mr Bowden (“the offender”) stabbed Mak Muon (“the deceased”) in the chest at Bunyarra Reserve in Emu Plains. Mr Muon died shortly after. Mr Muon was 23 years old at the time. Mr Bowden was aged 21 and is now 25 years old.

2. At the time of the stabbing, it was alleged that Mr Bowden was in the company of Jake Leroy Dillon, Zackary Locke, and Evan Taylor and that each was responsible for the death by way of joint criminal enterprise or extended joint criminal enterprise.

3. Each of the four men were arrested and charged with murder. Mr Bowden was arrested and charged on 10 November 2020. He was refused bail and has remained bail refused since that date.

4. At the Early Appropriate Guilty Plea (“EAGP”) case conference, Mr Bowden offered to plead guilty to the alternative offence of manslaughter, on the basis of extreme provocation. That plea offer was rejected by the Crown. On 16 December 2022, Mr Bowden was committed for trial.

5. On 14 April 2023, Mr Bowden was arraigned on an indictment containing a single count that he, on 24 September 2020, at Emu Plains in the State of New South Wales, did murder Mak Muon. He entered a plea of not guilty to the offence of murder. The matter was set down for joint trial on 20 May 2024.

6. In pre-trial proceedings before me on 13 May 2024, the offender was arraigned and entered a plea of not guilty to murder but guilty to manslaughter. On 20 May 2024 a jury was empanelled, and the trial commenced. The offender confirmed the plea entered before me on 13 May 2024, when he was arraigned before the jury panel. The other three accused entered a plea of not guilty to murder. The trial proceeded over a period of about 6 weeks.

7. Mr Evers appeared on behalf of Mr Bowden at trial. His opening address identified the issues. It was not in dispute that Mr Bowden stabbed the deceased causing his death. Mr Bowden has always accepted that he did so. The issue in the trial was whether his acts amounted to murder or manslaughter.

8. Although the indictment contained a single count of murder, an alternative charge of manslaughter was left for the jury’s consideration in the case of each accused. The jury returned on 4 July 2024 with a verdict of not guilty to murder but guilty to manslaughter in the case of Mr Bowden. In the case of each of the other accused, the jury returned verdicts of not guilty to murder and not guilty to manslaughter. The sentence proceedings for the offender were conducted before me on 6 November 2024.

9. The Crown accepts that having offered to plead guilty to manslaughter in the Local Court, an offer which was rejected by the Crown, the offender is entitled to a 25% discount by virtue of ss 25E(2) and 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). I will apply a 25% discount in sentencing Mr Bowden.

10. Mr Bowden must now be sentenced for manslaughter, an offence contrary to 
    s 18(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment. A standard non-parole period does not apply to this offence.

11. Although no Victim Impact Statement has been provided, it is appropriate to commence these remarks by acknowledging the life lost. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

12. The sentence I impose does not, and cannot, measure the value of Mr Muon’s life. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and the protection of the community. It must hold the offender to account and reflect the objective seriousness of the offence. It must also reflect the offender’s subjective case, his moral culpability, his prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending.

Facts after trial

13. Although many of the events leading up to the stabbing are not in dispute, the facts as to what took place in Bunyarra Reserve immediately before and during the stabbing, were hotly contested. Furthermore, manslaughter was left to the jury on three different bases, namely, extreme provocation, unlawful and dangerous act and excessive self-defence.

14. The principles relevant to fact finding by a sentencing judge following a jury verdict are well established and are summarised in R v Isaacs (1997) 41 NSWLR 374 at 377-378:

“1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury: R v Harris [1961] VR 236; see also Kingswell v The Queen (1958) 159 CLR 264 at 283, per Mason J.

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury’s verdict, and thus may be required to sentence on a basis different from the judge’s personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: R v Lupoi (1984) 15 A Crim R 183 at 184.”

15. The Crown case at trial was that the deceased had been set upon by Mr Bowden, accompanied by the co-accused. The primary Crown witness was Jaysin Hay, Mr Bowden’s girlfriend. Other than the accused, she was the only eyewitness to the events that unfolded at Bunyarra Reserve.

16. It is not necessary to set out, in any detail, the evidence Ms Hay gave at trial. She made an induced statement to police on 30 October 2020 in which she gave a version of events which included that all four accused, upon driving into Bunyarra Reserve and exiting their vehicle, chased after the deceased, caught up with him and punched and kicked him. On the Crown case, it was during this physical altercation, that the deceased was fatally stabbed.

17. It became apparent during the trial, that Ms Hay had deliberately lied in relation to the participation of Evan Taylor. That lie was uncovered as a result of conversations between Ms Hay, Mr Bowden and other members of his family, captured by listening device product at premises in Diamond Beach.

18. Ms Hay was unable to remember significant aspects of relevant events and numerous applications were made to refresh her memory pursuant to s 32 of the Evidence Act 1995 (NSW). The acquittal of Messrs Dillon, Locke and Taylor, in respect of both murder and manslaughter is consistent with the jury rejecting the evidence of Ms Hay. Having observed her give evidence in the trial, I found her to be a witness whose credibility and reliability was questionable. I cannot make any findings with respect to the events at Bunyarra Reserve based on her evidence alone.

Findings as to the basis for manslaughter

19. As indicated above, manslaughter was left for the jury’s consideration on three alternate bases: excessive self-defence, extreme provocation, and unlawful and dangerous act.

20. On behalf of the offender, I am urged to proceed to sentence him on the basis of excessive self-defence. The Crown accepts that it is open to sentence Mr Bowden on the basis of excessive self-defence. The Crown contends it is also open to sentence him on the basis of manslaughter by unlawful and dangerous act.

21. Mr Bowden gave evidence at trial, as did Messrs Dillon and Locke. The jury must have accepted Mr Bowden’s account of the events that occurred at Bunyarra Reserve. Although his case was opened on the basis that he was acting under extreme provocation, he gave limited evidence of having “lost control.” Rather, the effect of his evidence was that he was acting in self-defence and in response to a threat that he perceived.

22. I find that Mr Bowden was both honest and reliable in the evidence he gave. He repeatedly said that he was motivated by a desire to retrieve property stolen from him by the deceased in the early hours of 24 September 2020. There is no dispute that in the early hours of 24 September 2020, the deceased, in company of two men and whilst armed, committed a “home invasion” at Mr Bowden’s premises.

23. Mr Bowden gave evidence that when he got out of the car in Bunyarra Reserve and approached the deceased, he was still in possession of a knife. He saw a metal object in the deceased’s hand. The deceased took hold of Mr Bowden, causing him to fear for his life. These events precipitated the actions of the offender, which he described as: “just started swinging.”

24. The offender’s evidence was that the altercation with the deceased took place on the top of the creek bank, close to the location where the Nissan Murano (“the Murano”) collided into the creek. I accept that the deceased was armed with a metal object, likely a screwdriver. This finding is consistent with the objective evidence including the location of a screwdriver found by police at the top of the creek bank, from which the DNA profiles of both the deceased and Gregory Ambler, were recovered.

25. Furthermore, the deceased’s blood trail commenced at the location where the screwdriver was recovered and led to the location where the deceased collapsed and died. This is consistent with the confrontation and stabbing occurring at the location where the blood trail commenced, and the screwdriver was found.

26. The offender admitted that he was both scared and angry immediately before the confrontation and during it. In cross-examination by the Crown prosecutor at trial, the following question was put to the offender:

“Q. Did you say anything to Mr Muon like, ‘Let go of me. I’ve got a knife’?

A: No. I wasn’t thinking. My head wasn’t on the right mind state. He’s grabbed my shirt; I’ve seen his had a metal object and I’ve just blacked out. I’ve just started swinging. I felt, felt scared. I believed that if I didn’t do it, he would have done it to me. They’ve just - they just ran from my house, they’ve stabbed me, they’ve put a gun to my head. Who knows what’s going to happen?”

27. The Crown accepts that it is open to find that the jury must have accepted that Mr Bowden believed that it was necessary to stab the deceased but that it was not in fact a reasonable response in the circumstances as he perceived them. The Crown urges a finding that at the time of the fatal blow the offender intended to kill the deceased, as opposed to an intention to inflict grievous bodily harm. In support of that contention, the Crown relies on the following evidence:

1. The offender’s evidence that when he saw the metallic object in the deceased’s hand he was thinking “it was me or him.”

2. The offender’s evidence that “I have – when I’ve confronted him, I’ve seen a metal object in his hand. It’s either I die or he dies. I – well, so if I didn’t do something, what about if I died?”.

3. Evidence regarding the nature and location of the fatal wound and the knife used to cause it.

28. The Crown’s contention that at the relevant time Mr Bowden had an intention to kill the deceased, ignores other evidence which the offender gave that he had no such intention. In examination-in-chief by Mr Evers, the following questions were put to the offender:

“Q. Did you want Mr Mak to die that night, Mr Muon to die that night?

A. No, definitely not. Definitely not.

Q. When you set off in the car in pursuit of your belongings, did you think this was how things were going to end up?

A. Definitely not. No way.

Q. When you got out of the car at Bunyarra Reserve, did you think that was how things were going to end up?

A. No, thought I was just going to [confront] him.

Q. As you [ran] across the creek in pursuit of the white man, did you think this was how things were going to end up?

A. No, definitely not.”

29. In cross-examination, the offender gave evidence that his intention was to get his property back:

“Q. I’d suggest that you did want to stab Mr Muon, do you agree or disagree with that?

A. I disagree because I said before if I wanted to actually harm the person, I could’ve done it before the altercation, the other meetings we had together.

Q. I’d suggest to you that you wanted to stab Mr Muon because you wanted to cause him really serious injury or to kill him.

A. No.

Q. Do you agree or disagree?

A. I disagree with you.

…

Q. When you stabbed Mr Muon, you did that because you wanted to kill him?

A. No, I didn’t.”

30. I proceed to sentence the offender on the basis that although he believed it was necessary to stab the deceased to protect himself, his response was not a reasonable response in the circumstances as he perceived them. I am not satisfied beyond reasonable doubt that at the time of the stabbing, Mr Bowden intended to kill the deceased. Instead, I sentence him on the basis that the relevant state of mind was an intention to inflict grievous bodily harm.

Facts on Sentence

31. Having made findings about the areas in dispute and the basis of manslaughter, I turn to summarise the facts upon which Mr Bowden is to be sentenced.

32. In September 2020 the offender resided at 15A Lauder Street, Doonside. That residence was a granny flat at the premises. The offender’s mother, Stacey Byrne, and her partner, Shane Stirling, resided in the main house, along with Mr Bowden’s younger half-sister, Macayla.

33. The offender was in a relationship with Ms Hay at that time. She would stay over on occasion. On the evening of 23 September 2020, Ms Hay and the offender were at 15A Lauder Street.

34. In the early hours of 24 September 2020, the deceased attended the offender’s home with two other males. One of the men was Gregory Ambler. The deceased was armed with a pistol. The other two males were armed with metal objects (these objects were described by a number of witnesses as a knife and a machete). Mr Ambler gave evidence at trial, describing the item he was holding as a piece of metal. He agreed that the other intruder was armed with a machete.

35. The men demanded money from Mr Bowden. A gun was put to his head, and a machete was also used to threaten him. Mr Bowden was backed into a corner and asked about his bikes. After being threatened by the armed intruders, Mr Bowden gave them $2,000. One of the men told Ms Hay to get into the bedroom.

36. Ms Hay called Mr Bowden’s mother who was present in the main house to alert her to what was happening. The intruder who was armed with the machete tried to snatch the phone out of Ms Hay’s hand and threatened her with the weapon. After a struggle the male took the phone. In addition to the cash and Ms Hay’s phone, the intruders stole two bags belonging to Mr Bowden.

37. At one point during the “home invasion”, Mr Bowden was told to open his shed where his bikes were stored. Ms Byrne arrived as her son was opening the shed. A verbal argument ensued between Ms Byrne and the intruders.

38. The deceased put a pistol to the offender’s head and threatened him with it. Ms Byrne stood between the deceased and her son, saying “Don’t point a gun at my son.” The deceased then pointed the gun at Ms Byrne’s chest. The confrontation became heated with a lot of yelling. As the intruders were leaving, Mr Bowden attempted to retrieve one of his bags. He was struck with the machete, causing a wound to his arm.

31. The intruders began to retreat. As the men left, they moved a trolley towards the offender and his family. There was also an altercation between one of the intruders and Mr Stirling.

32. Mr Bowden obtained a knife from the kitchen and went to the front of the house where his mother, Ms Hay, Mr Stirling, and the intruders were present. The intruders drove away in the Murano.

33. Ms Hay insisted that she wanted to retrieve her phone. The phone could be tracked using the “Find my iPhone” application. Mr Bowden telephoned Mr Dillon, asking him to help him retrieve his property. Shortly after Messrs Dillon, Locke and Taylor arrived at the premises. I accept that Mr Locke happened to be with Mr Dillon, at the time he received the call from Mr Bowden. This is not a case where the three men attended the premises, having engaged in any degree of planning.

34. In the meantime, Ms Hay discovered that her car keys were missing. Mr Bowden’s mother provided the keys to her white Audi (“the Audi”), so that the group could pursue and find the intruders, using the “Find my iPhone” application. In hindsight, the decision to provide the keys was ill-advised. I accept that Ms Byrne has deeply regretted her decision to provide the keys to her son.

35. Mr Stirling gave evidence that he followed the group on his motorbike to make sure that no harm came to Mr Bowden. As it was, Mr Stirling followed for only a short distance. Mr Bowden accepted that when he left his premises with the group, he was still in possession of the knife he had obtained from the kitchen. He gave evidence that he was angry that his house had been broken into and that he and his family had been threatened in the way they had been. He maintained that his only intention in pursuing the intruders was to retrieve his property.

36. Ms Hay drove the group to Bungarribee, following the location indicated by the “Find my iPhone” application. The car stopped in Bungarribee, where Mr Bowden and at least two of the other men got out and looked for the phone. They were unable to locate it, so they returned to the vehicle.

37. From that point, Mr Taylor drove the Audi. The “Find my iPhone” application was refreshed and a location in Emu Plains was indicated on the phone. Ms Hay was in the back seat of the vehicle at that point. Mr Locke then occupied the front passenger seat of the vehicle, with Mr Dillon and Mr Bowden in the back.

38. The car was driven to Emu Plains. During that trip, contact was made with Mr Bowden’s eldest sister, Ashlei May. As will become evident, after I summarise the offender’s subjective case, Ms May was not only his older sister, but in many ways, was a mother figure to him during his childhood and adolescence.

39. Using the application, the car was driven to McAuley Crescent. In the meantime, police attended Lauder Street because of a report of someone being slashed with a machete. Constable Jordan Burnett attended at approximately 3:55am. Whilst he was at the premises he spoke with Ms Byrne. She reported that there had been an argument between the offender and Mr Stirling, and that there was no machete involved. She called the offender during that conversation. The offender spoke with Constable Burnett. Among other things, the offender said, “It’s finished now, nothing happened anyway.” Neither Mr Bowden nor his mother, reported the “home invasion” incident to police.

40. The failure to report the “home invasion” to the police, was emphasised during the trial, as a circumstance tending to support the Crown case that the accused was not motivated by a desire to retrieve his property, but rather a desire to track down the intruders and inflict serious violence upon them.

41. In light of the verdicts, I am not satisfied to the requisite standard that the offender failed to report the “home invasion” to the police because he intended to pursue the intruders, assault and seriously harm them. The failure to report to police is better understood having regard to the subjective background of Mr Bowden and the lifestyle of some of his family members.

42. Both of his parents had been previously charged with criminal offences and served periods of imprisonment. His mother had been arrested on at least two occasions and served two separate periods in custody. Mr Bowden’s eldest sister, Ashlei, whom he respected, was in a relationship with Jamie Saliba, who has (or had) associations with the Rebels Outlaw Motorcycle Gang (“OMCG”). In those circumstances, it is not at all surprising that neither Mr Bowden nor his mother reported the “home invasion” to police.

43. Ms Alison Cullen, psychologist, prepared a psychological report which is relied upon by the offender in the sentence proceedings. She was also called to give evidence and was cross-examined at length. Her evidence will be summarised in due course. Relevantly, for present purposes, Ms Cullen was cross-examined about the offender’s failure to report the “home invasion” to police, instead taking it upon himself to pursue the intruders. She gave evidence which included the following:

“…But at that point in time he was fixated on getting his belongings back and that is explained through the stress response and also the normalisation throughout his childhood not to involve police in matters like this.

It was more throughout the domestic violence his mother endured, the domestic violence his sister endured. Even the fact his mother went away in 2014 was to do with her unwillingness to work in collaboration with the police. So there is this instilled belief about - and his experience of what he reported happened to him by a police officer following his [mother’s] arrest at age 15 or 16.

Those attitudes, those experiences will also contribute to attitudes he holds in terms of the benefit of police being involved.”

52. I pause here to note that although the failure to seek police assistance is contextualised in this way, it was an irresponsible and highly misguided decision on the part of both the offender and members of his family.

53. The Murano was located by Mr Bowden and his group, in McAuley Crescent. Instead of proceeding to that vehicle and confronting the occupants of it, Mr Bowden deferred to his sister, Ashlei, who told him to wait at the end of the street until she got there.

54. Upon her arrival, she drove to the Murano, accompanied by Ms Hay. It was there that Ashlei became involved in a verbal confrontation with others during which she yelled words to the effect of “Did you motherfuckers point a gun at my mother and run through my brother’s house?”.

55. After hearing a car horn, Mr Bowden ran down the street, still in possession of the knife he had brought from his home. He had the knife in his hand. Two of his companions also ran down the road after him. The deceased and Mr Ambler were present in McAuley Crescent. During this verbal altercation, they got into the Murano and drove away.

56. Mr Bowden and his group did not immediately follow the Murano. Instead, whilst sitting in the Audi, they observed the Murano drive past. They then pursued that car, following it into Bunyarra Reserve. Mr Taylor was still driving the Audi. The vehicles entered Bunyarra Reserve at approximately 4:22am, which was about one hour after the “home invasion” had taken place.

57. The Murano drove through Bunyarra Reserve, colliding into the creek bed. The deceased and Mr Ambler left the vehicle and ran up the creek bed, running in different directions. Messrs Bowden, Dillon, Locke and Taylor, exited their vehicle. I am satisfied that Mr Taylor ran after Mr Ambler.

58. Mr Bowden approached the deceased. I am satisfied that he did so, still motivated by a desire to retrieve his property and not wanting the deceased to get away until he had done so. Mr Bowden was still in possession of the knife. He observed that the deceased had a metal object in his hand, which, as indicated earlier, I am satisfied was a screwdriver. Mr Bowden was both angry and scared. Those emotions were in part fuelled by the events that occurred a short time earlier when the deceased and his group forced their way into his premises whilst armed with weapons, making threats, inflicting violence and stealing property.

59. The deceased grabbed the collar or trunk of Mr Bowden’s t-shirt. Mr Bowden immediately started swinging at the deceased, inflicting the fatal wound. Mr Bowden gave evidence that at that time he felt the knife come into contact with the deceased, he felt the knife bend. When he looked down, he realised that there was a snapped knife handle in his hand. He dropped the knife handle where he was standing, turned around, and walked off.

60. In light of the verdicts, I accept that at the time of this physical confrontation, Mr Bowden was acting alone, believing he had to do what he did to protect himself.

61. When Mr Bowden returned to the vicinity of the Audi, he and Mr Locke looked through the contents of a satchel that was in the possession of either the deceased or Mr Ambler. Ms Hay’s mobile phone was located amongst the items in that satchel.

62. Mr Taylor drove the Audi away. Mr Dillon indicated that he thought the deceased was seriously hurt. Mr Bowden contacted his sister, Ashlei, and told her to ring an ambulance. The group returned to Lauder Street. Mr Bowden told his mother to call an ambulance because he thought someone had been hurt.

63. The deceased was pronounced dead at the scene. The blade of a knife was still present in his chest.

64. Mr Bowden’s mother woke him the following morning to advise him of a news report that someone had died at Emu Plains the previous night.

65. The deceased had suffered the following injuries as a result of Mr Bowden’s actions:

1. A stab wound to the upper anterior chest, with the knife blade still present in the wound.

2. An incised wound to the chest on the left anterior.

3. An incised wound on the right side of the scalp, just above and behind the ear.

4. A stab wound on the central upper occiput (back of the head).

Objective Seriousness

66. There is no category of manslaughter that is to be considered more or less serious than others, however it is important to identify with clarity, the basis upon which an offender is to be sentenced: Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153 at [204] per N Adams J (agreeing with Brereton JA, as his Honour then was).

67. The circumstances giving rise to a manslaughter offence are so varied that the penalties imposed in other cases are of little assistance: see R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184 at [88]; R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184 at [56]; R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at [193], [227]; Goundar v R [2012] NSWCCA 87 at [43].

68. Sentences imposed for the offence of manslaughter must reflect the fact that there has been a felonious taking of human life: R v Dawes [2004] NSWCCA 363 at [32]; R v Edwards (1996) 90 A Crim R 510 at 517; R v McDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep).

69. The relevant principles for manslaughter based on a finding of excessive self-defence are outlined in Newburn v R [2022] NSWCCA 139 (“Newburn”) at [39]:

“It is clear from the authorities that:

(1) A conviction of manslaughter based on a finding of excessive self-defence carries with it the implication that the offender perceived that he or she was in a position in which it was necessary that they act in order to defend himself or herself: Smith v R [2015] NSWCCA 193 at [44]; Patel v R [2019] NSWCCA 170 at [14];

(2) Central to the sentencing exercise is the identification of:

(a) the circumstances as the offender (rightly or wrongly) perceived them to be; and

(b) what, precisely, the conduct was that the offender believed was necessary in order to defend himself or herself: Smith at [44]-[45]; Patel at [14];

(3) The offender’s perception of the circumstances is relevant to the determination of what he or she believed it was necessary to do in order to defend himself or herself: s 421(1)(c) Crimes Act 1900; Smith at [45];

(4) An offender’s perception is also integral to the issue of the reasonableness of his or her conduct in responding to those circumstances: s 421(1)(b) Crimes Act; Smith at [45], [56], [58];

(5) Both questions are to be assessed by reference to the offender’s subjective perception regardless of whether that was objectively reasonable, taking into account any intoxication: Smith at [45]; and

(6) The anterior conduct of the offender, including the reasons for their attendance at the scene of the crime and the reasons for their decision to enter into a confrontation with the deceased, forms no part of the actual offence and is not directly relevant to the assessment of the gravity of the offending: Patel at [14].”

70. An assessment of the objective seriousness in cases of excessive self-defence requires a consideration of to what extent the offender’s response was disproportionate to the circumstances as perceived by him: Smith v R [2015] NSWCCA 193 (“Smith”) at [59].

71. It is necessary to identify the circumstances as the offender perceived them and what, precisely, the conduct was that the offender believed was necessary in order to defend himself, so that an assessment can be made of the reasonableness of his conduct: R v King; R v York [2024] NSWSC 620 at [54]; Newburn at [39]; Smith at [56].

72. A matter of principle arose during the sentence proceedings that must be addressed before an assessment of objective seriousness is made. Mr Evers, on behalf of the offender submitted that in determining the extent of the threat as perceived by the offender and the degree of unreasonableness, I am entitled to have regard to the actions of the deceased during the “home invasion”.

73. In written and oral submissions, the Crown contended that the conduct of the deceased is “anterior conduct” and can only be considered as “context.” The Crown submitted that “the anterior events form no part of the actual offence and are not directly relevant to the assessment of the gravity of the offending”: Newburn at [39], [41]; Patel v R [2019] NSWCCA 170 (“Patel”) at [14]. Those events are relevant only insofar as they provide context to the actual offence.

74. The Crown’s submission in this regard is misconceived. In Patel the Court of Criminal Appeal was concerned with an appeal against the asserted severity of sentence. Ms Patel asserted that the sentencing judge failed to take into account all material facts, in particular, that she went to the deceased’s unit for a legitimate purpose to retrieve her passport.

75. It was in that context that Harrison J (as his Honour then was) held at [14] that:

“…Her criminality is to be measured by her actions performed in the course of committing the offence and the extent to which she exceeded what a reasonable person in her position would have done in the same circumstances. It is not in my view to be assessed by a ‘nuanced’ examination of the reasons why Ms Patel and Ms Joshi came to be at the premises on the morning in question. Whatever intentions or motives Ms Patel might have had for going to Ms Joshi’s unit in the first place must necessarily have been overtaken by the jury’s acceptance of the fact that Ms Patel acted in self-defence. …”

76. His Honour went on to say:

“…Certainly, on the facts of this case the reasons for Ms Patel being present at Ms Joshi’s home are not relevant to the assessment of the objective gravity of offending. …” (Emphasis added.)

77. Patel is not authority for the proposition that a sentencing judge is prohibited from taking into account the actions of the deceased (which are known to an offender) in determining the level of threat perceived by that offender or in assessing the extent of the unreasonableness of the offender’s response.

78. In Newburn, the Court of Criminal Appeal was again dealing with an appeal against the severity of sentence imposed upon the applicant for an offence of manslaughter on the basis of excessive self-defence. In that case the sentencing judge had taken into account the “anterior conduct” of the offender in assessing the objective seriousness of the offence. The anterior conduct included the offender refusing to allow his ex-partner to leave their shared accommodation and to take her property with her.

79. In upholding the appeal, the Court set out at [39] (reproduced above at [69]) the principles relevant to sentencing an offender for manslaughter based on a finding of excessive self-defence. The “anterior conduct” in that case was the conduct of the offender which had nothing to do with an assessment of his perception as to the level of threat or a determination about the degree of unreasonableness of the response.

80. The Court in Newburn emphasised that what is required is firstly, to identify the threat which the applicant perceived. In that regard, the actions of the deceased were relevant. It is only after identifying the perceived threat that an assessment can be made as to the extent to which the response exceeded what was reasonable: Newburn at [42], [47].

81. In the present case, the evidence of the deceased’s actions during the “home invasion” is crucial to informing an assessment of the perceived threat and the extent to which the offender’s response was unreasonable. As set out above, the deceased, in company of two others, committed a violent and armed “home invasion” at the premises of Mr Bowden, during which time they threatened and inflicted violence upon him and threatened members of his family. Those events necessarily inform the evidence given by Mr Bowden that he was both angry and scared at the time he inflicted the fatal wound. I am satisfied that I can take into account the deceased’s actions during the “home invasion”, in identifying the perceived threat and assessing the extent to which the offender’s response was unreasonable.

82. When the offender fatally stabbed the deceased, he was not responding simply to a man who was armed with a “metal object” and who had taken hold of him by the collar of his t-shirt. The offender was responding to a man who had, shortly before, perpetrated significant violence, whilst armed with a gun, towards the offender.

83. In assessing the objective seriousness of the offence, I note that objective seriousness and moral culpability are separate but related concepts. Matters personal to an offender may impact on an assessment of objective seriousness: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [71], [77]. This has been recently emphasised in Britton v R [2024] NSWCCA 138 at [165] where I said:

“The sentencing exercise is a complex but integrated process requiring an evaluative assessment of all relevant factors in determining the proportionate sentence. An assessment of the objective seriousness of an offence and the moral culpability of an offender, are essential components of the sentencing process. The objective seriousness of an offence relates to the circumstances of the offending, while moral culpability relates to the moral blameworthiness of the offender. However, the factors informing an assessment of objective seriousness and moral culpability can sometimes overlap, and have, on occasion, resulted in a conflation of the two concepts.”

84. On behalf of Mr Bowden, Mr Evers submits that this offence falls at the lower end of objective seriousness because the offender’s conduct was not a substantial departure from what would have been a proportionate response to the circumstances perceived by him.

85. The Crown submits that the offence is at the mid-range of objective seriousness for offences of this type, relying upon a combination of factors as set out in the Crown’s written submissions, supplemented by oral submissions. In summary, the Crown relies upon the following factors as relevant to an assessment of objective seriousness:

1. The distance and time that had elapsed since the “home invasion”;

2. The vehicle the offender was travelling in, the Audi, had pursued the vehicle the deceased was driving in until the Murano became stuck in the creek;

1. The offender exited the Audi and moved towards the Murano;

2. When exiting the Audi, the offender was armed with a large kitchen knife (that he had brandished a short time before in McAuley Crescent);

3. The offender inflicted injuries upon the deceased with that knife, which included the fatal stab wound; and

4. The nature, size and location of the fatal stab wound.

86. Having considered the respective submissions, the evidence, and my findings, I am satisfied that this offence falls below the mid-range of objective seriousness but not at the lowest end of the range. In summary, although the “home invasion” occurred approximately one hour before the fatal stabbing, as already explained, the actions of the deceased inform the offender’s perception of the threat at the time the deceased took hold of him in Bunyarra Reserve, whilst armed with a screwdriver. The asserted significance of the lapse of time between the “home invasion” and the stabbing is diminished when one has regard to the evidence of Ms Cullen about the physiological reaction that the offender had when his post-traumatic stress disorder (“PTSD”) was triggered by the events constituting the “home invasion”. I will return to this issue once I have summarised Ms Cullen’s evidence in that regard.

87. While the offender’s response was clearly unreasonable, having regard to the number of stab wounds and the severity of the fatal wound, I am not satisfied that it very significantly exceeded a reasonable response. I have had regard to the fact that there was no planning or deliberation by Mr Bowden and that his acts were spontaneous in the context of the threat he perceived.

88. I am satisfied that Mr Bowden, in pursuing the Murano was motivated by a desire to retrieve his property, rather than with an intention to seriously harm the deceased. As indicated earlier, his decision to pursue the deceased to retrieve his property, was highly irresponsible and misguided. I have taken into account his anterior conduct as context, only, for the offending.

89. In relation to aggravating factors, pursuant to s 21A(2) of the CSPA, I have had regard to the fact that the offence was committed with the use of a weapon, namely a large kitchen knife: s 21A(2)(c) of the CSPA.

90. I reject the Crown’s submission that a further aggravating factor to be considered is that the offender used violence to inflict injuries on the deceased at the time of the offence pursuant to s 21A(2)(b) of the CSPA. I have already taken into account the violence perpetrated by Mr Bowden, in assessing the objective seriousness of the offence.

Subjective Circumstances

91. The offender’s subjective case is before me primarily by way of a psychological report prepared by Ms Cullen, dated 21 September 2024; Ms Cullen’s evidence; New South Wales Police records relating to matters of family violence; references; and certificates of achievement. The subjective background can be summarised as follows.

Developmental History

92. Mr Bowden’s background is marred by profound deprivation due to his exposure to significant domestic and family violence causing unresolved trauma. The Crown does not dispute the history given by Mr Bowden and his mother about the nature and extent of that violence.

93. Mr Bowden is the youngest of four children. He has three older siblings, Kylie, Alicia and Ashlei and a younger half-sister, Macayla. The offender has a strong, supportive, and loving relationship with his mother. He reported that “She’s the best relationship I’ve got. She’s everything to me.”

94. Mr Bowden’s mother was the victim of significant domestic violence at the hands of his father, long before Mr Bowden was born. When Mr Bowden was a baby, he also became a victim of that violence, but he was too young to remember it. He became aware of this earlier violence because his mother told him about it. His parent’s relationship ended in 2001 when he was aged one or two years old.

95. Following the end of that relationship, Mr Bowden’s mother re-partnered with Matthew Iddles. The relationship was also one in which Ms Byrne was the victim of severe domestic violence. A COPS entry (E70932402) provides a summary of an incident of violence during which Mr Iddles punched Ms Byrne several times to the back of her head whilst seated in a motor vehicle with their young daughter present. He then pulled her by the hair whilst simultaneously punching her to the face and chest.

96. This is only one example of the incidents of domestic violence. It is unnecessary to set out the details of other instances of violence. It is sufficient to observe that the violence overall was persistent and severe.

97. Ms Byrne and Mr Iddles were together for approximately three years. They had one child together, Macayla. Mr Iddles has had limited contact with the family since she was born. Although still very young, Mr Bowden was exposed to that domestic violence.

98. When the offender was about eight years old, his mother was arrested and incarcerated for drug related offences. His sister, Ashlei, who was 16 years old at the time, became responsible for the care of her siblings, including the offender. The offender reported that he was aware that his mother was “taking and dealing drugs” as random people would often come to the family home and the family home was raided on several occasions. This was the first period of separation between the offender and his mother.

99. Mr Bowden reported that when he was 15 years old, he experienced a traumatic event of witnessing his mother being arrested by police for drug-related offending. He remembered the confrontation as a violent one and reported that he was very protective of his mother. He tried to hold onto his mother as she was forcibly taken away by police. This was the second occasion in which Ms Byrne was arrested and taken into custody. She was in custody from 2014 until 2017.

100. A minor factual dispute arose during the proceedings as to whether the arresting police had kicked down the door before arresting Ms Byrne or whether they were allowed entry after knocking. I accept that they were allowed entry after knocking. However, that finding in no way undermines the significance to the offender of this event. He was 15 years old at the time that he witnessed his mother’s arrest. The evidence reveals that in addition to however many police officers attended, an Operational Support Group (“OSG”) team was present, comprising between six and eight officers.

101. The impact on a 15 year old, of witnessing the arrest and removal of his mother by several police officers, must have been extremely distressing.

102. Ms Byrne gave an account to Ms Cullen about this second period of incarceration. Her eldest daughter, Ashlei had commenced a relationship with Jamie Saliba, described by Ms Byrne as “a notorious criminal” with OMCG associations. The account of how Ms Byrne came to be in possession of a large quantity of prohibited drugs, resulting in her arrest and incarceration, is set out in the psychological report. Upon his mother’s incarceration, Mr Bowden chose to live with his maternal aunt. He stayed with her between the ages of 15 to 18.

103. Ms Cullen diagnosed the offender as suffering from complex PTSD. I will summarise that evidence in due course. Relevantly, for present purposes, Ms Cullen gave evidence that although a number of factors contributed to the offender’s onset of PTSD, a prevalent factor was the arrest of his mother in 2014, which constituted a second period of disruptive attachment with his mother.

104. The exposure to domestic violence was not limited to the violence perpetrated upon Ms Byrne. The relationship between Ashlei and Mr Saliba was also marred by significant domestic violence. Ms Byrne gave an account of witnessing some of that violence, including witnessing an occasion where Mr Saliba king hit Ashlei when she was pregnant. Mr Bowden witnessed that event and together with others tried to assist his sister. Ms Byrne describes that event as triggering her own experiences of domestic violence when her children had tried to assist her.

105. Mr Bowden had limited contact with his mother during this period of her incarceration. It was difficult for him to see her in custody. He became more isolated, and his only friendship during that period, was with a young man who died in a motorbike accident. This was a traumatic event which resulted in the offender engaging in occasional drug use. Other than occasional experimentation with prohibited drugs, the offender does not, however, have substance abuse issues.

106. Following her release from custody in 2017, Mr Bowden moved in with his mother. She was experiencing some mental health issues and sought professional help. To her credit, she was able to overcome her past, abstain from drug use and obtain employment. In addition, Ms Byrne formed a relationship with Shane Stirling, and they have had what has been described as “a normal family” ever since. Mr Stirling became a stable father figure in the offender’s life.

107. The offender’s relationship with his biological father was estranged. On the occasions where there was contact, his father was aggressive and abusive. On at least one occasion police were called and Apprehended Domestic Violence Orders (“ADVOs”) were put in place to protect each family member.

108. Mr Bowden’s last contact with his father was in 2019. His father was diagnosed with cancer and died in November 2022. Mr Bowden was in custody, bail refused for the present matter at that time. Although a request to attend his father’s funeral had been approved, he could not be transported due to staff shortages. He declined to watch his father’s funeral via Audio Visual Link (“AVL”).

109. Mr Bowden continues to have a strong relationship with his family. He is in constant communication with his mother, some of his siblings, and Mr Stirling. He also has the continuing support of his partner, Jaysin Hay, with whom he has been in a relationship now for six years. The relationship is described as “positive, prosocial and loving.” They communicate daily while he has been in custody, and she visits “almost every week.”

Education and Employment History

110. The offender left school in Year 10, during the second period of his mother’s incarceration. Following school, he worked in various manual and construction jobs. Following his arrest and detention, Mr Bowden has been employed in custody when his classification allows him to take up employment. For instance, he has worked as a sweeper at the Metropolitan Remand and Reception Centre (“MRRC”), as well as taking jobs in heavy engineering, furniture fabrication and in the cafe. He has completed a number of courses in custody, completing a Certificate II and III in hospitality and Certificate II in spray painting, and panel beating. He has also commenced a Certificate II in animal studies, which was interrupted when he was transferred to MRRC for his trial. Since the conclusion of his trial, he has been employed in ground maintenance.

111. His future vocational goals include completing an apprenticeship in building or mechanics as he enjoys “fixing up bikes and cars.”

Psychological Profile and Medical History

112. In addition to the traumatic events experienced by Mr Bowden during his childhood, he reported witnessing the stabbing of a family friend at the age of 11. He reported experiencing nightmares, intrusive thoughts, and avoidant behaviours soon after. He did not receive any professional treatment following this event and claims not to have thought about it in a long time.

113. Several psychological tests were administered by Ms Cullen, the results of which indicate a diagnosis of complex PTSD, moderate persistent depressive disorder and intermittent major depressive disorder. Ms Cullen remarked on the offender’s history as follows:

“5.2 This assessment reveals that Mr Bowden was subjected to a significantly emotionally and socially deprived childhood characterised by: severe family violence (including perinatal, infant and childhood exposure to domestic violence and physical abuse perpetrated by his father); early and enduring exposure to parental substance abuse (related to his mother using and selling of substances, thereby resulting in various raids on the family home); transience (including both geographical and familial placements) as well as social exclusion, both attributable to his mother’s criminality; low sociodemographic background; and interrupted school attendance, as evidenced by dropping out during Year 10 following his mother’s subsequent incarceration (for three [3] years), during a critical developmental period.

5.3 The unstable, chaotic, and transient environment in which Mr Bowden was raised undoubtedly predisposed him to: marked (anticipatory) anxiety; emotional deprivation and therefore a vulnerability toward self-subjugation driven by self-preservation (thereby accounting for his PDS profile); a withdrawn interpersonal style; and a poor self-concept. It is highly probable that Mr Bowden thereby became overly protective of his mother, as he appraised her presence as providing a level of stability, and predictability, in his life.”

114. Ms Cullen opined that it is likely that at the time of the commission of the subject offence he satisfied the DSM-5-TR diagnostic criteria for complex PTSD. Ms Cullen outlined a causal link between the offender’s diagnosis and his offending:

“5.8 As stated above, Mr Bowden’s complex PTSD, resulted in him becoming overly protective of his mother, which is indeed relevant in the context of the index offence. Mr Bowden, and his mother, have claimed that he readily complied with the demands made by the assailants involved in the home invasion (an assertion that is accepted based on his personality profile). Following his mother later becoming involved, where she stands between Mr Bowden and the assailant pointing a gun toward him, during which time he is attacked with the machete, Mr Bowden’s genuine fear and anger escalates, such that his decision making, consequential thinking, emotional regulation, perspective taking, and self-monitoring becomes impaired. These functions were further impeded by Mr Bowden’s young age at the commission of the offence, at which time he was only 21 years old, and accordingly his pre-frontal cortex has not quite reached full development, thus making him more vulnerable to suboptimal cognitive functioning, whereby he believes that by approaching (after tracking) the perpetrators responsible for the home invasion, he could readily retrieve the belongings they stole. Accordingly, this assessment reveals a direct nexus between Mr Bowden’s mental health impairments (i.e., cPTSD) and the index offences. In other words, if Mr Bowden’s mother did not become involved in the home invasion (to thereby trigger his cPTSD and fears concerning her being ‘taken’ away from him), it is unlikely the situation would have escalated to him being attacked with a machete, and thereby perusing the assailants in the company of friends and family (through a bandwagon effect). Furthermore, in the absence of Mr Bowden having been assaulted by the victim, it is likely that the index offence would not have transpired.”

115. Ms Cullen gave evidence during the sentence proceedings and was cross-examined at some length. She maintained her opinion that there was a causal link between Mr Bowden’s complex PTSD and his offending. In her evidence- in-chief, Ms Cullen expanded upon her reasons for reaching that opinion and explained the physiological process that Mr Bowden experienced and the way in which it contributed to his offending:

“Q. Now if we move forward then to the events on the night that we are dealing with here, which is an occasion when Mr Bowden was the victim of a home invasion by three armed intruders, in terms of Mr Bowden’s response to those events does did his complex PTSD play a role in the way he responded so far as you are concerned?

A. Yes.

Q. What role did it play?

A. Okay. I’ll try to speak slowly but there is a lot of information to provide your Honour. Firstly, what is interesting is that my assessment identified a withdrawal in his interpersonal side, so that is what we first see when he is approached by the assailants, he is woken up within his own home and so clearly he has got marked anxiety and marked vulnerability. From his account his attempts to flee the assailants are unsuccessful, which therefore resulted in him having a fawn trauma response, whereby he tries to appease the demands of those assailants by unlocking his motorbikes.

It is not until just after that, according to Mr Bowden’s account, where his mother then intervenes and stands between Mr Bowden and the assailant who is holding a gun towards Mr Bowden. At that point in time you see a switch from the flee and fawn trauma response into a fight trauma response. And clearly that is compounded by the fact that he is also slashed by a machete during that ordeal. But certainly the presence of his mother and the potential harm that may have been inflicted upon his mother appears to be very relevant in terms of understanding his stress response and, therefore, his decision‑making.

Q. How does his history of PTSD impact upon his stress response at that point in time?

A. Sure. So when a threat is first identified our limbic system is activated. Within the limbic system there is the amygdala. With people with PTSD that amygdala has a heightened sensitivity, which is why as we see in the DSM, the diagnostic criteria is increased startle response, increased hypervigilance that is directly responsible through the amygdala. The fear ‑ when we’re perceiving stimuli and when we’re perceiving threat. The amygdala then in turns activates what is called the hypothalamic‑pituitary‑adrenal‑‑

Q. Stop, those terms you’re using are complex, would you mind spelling them first, amygdala and the last word.

A. Sure, a‑m‑y‑g‑d‑a‑l‑a.

Q. Then you referred to‑‑

A. Yep, so the amygdala through the hypothalamus activates the hypothalamic pituitary gland, which is referred to as the “HPA”. Did you want me to spell that as well? Is HPA suffice?

HER HONOUR: No, you can continue.

WITNESS: Okay. So the HPA is then responsible for two main processes of the stress response. The first being the release of adrenalin, so that adrenalin is obviously there to fuel the body in order to activate the sympathetic nervous system to either flee, fawn, fight or freeze. So that’s the first part of the HPA access.

The second part, which occurs about 45 to 60 minutes later is the release of cortisol. Now cortisol is associated with heightened risk‑taking and reduced risk perception. So when the cortisol is released it explains why we become hyper fixated or there’s an increase salience on obtaining a reward, because it’s the reward system. In this case, in Mr Bowden’s case, that reward, what is salient, what he is fixated upon is retrieval of the belongings that were stolen from him.

Now research has shown that increased amounts of cortisol, which is indeed relevant to Mr Bowden’s childhood and the diagnosis of the complex PTSD increased amounts of cortisol in turn reduce the amount of hippocampal volume. So that reduction in the hippocampal performance or volume leads to an impairment of fear conditioning and increase in impulsivity, which is why a plethora of research also shows this correlation between people who suffer with PTSD and impulsivity.

Q. In terms of the impact of PTSD on cortisol and adrenalin reduction is there a link?

A. Sorry, can you repeat that?

Q. In terms of the impact of PTSD on cortisol and adrenalin production is there a link?

A. Yes, so as I mentioned before, I might not have made it explicit, cortisol is a stress hormone that is released every time there is a stressor or a threat and because Mr Bowden has experienced so many of them throughout his life he has an increased amount of cortisol, which over time would have reduced his hippocampal volume and performance.

Q. And that impacts upon his impulsivity and fear responses?

A. That’s correct and affect dysregulation in general.

Q. Okay. If we can then look upon those facts or those matters in relation to Mr Bowden, for example, his decision to try and retrieve his property, does his complex PTSD have a role to play in that decision that he makes to retrieve his property rather than simply leave?

A. Yeah, absolutely it does. So the enhancement of risk‑taking behaviour is to re‑establish the power and control that he has felt in that moment, so to regain that empowerment over the situation. So his decision‑making is certainly influenced by his life history, which is his complex PTSD, and the impact that has had obviously on the stress response ‑ which I have detailed in 5.4 of my report. So having regard to his diagnosis of complex PTSD and the impact that has of the interplay with his stress response, in addition to the fact that once his mother became involved he gained not only self‑efficacy in relation to feeling that he had ‑ he was able to pursue the assailant through safety in numbers or whatever, however, his decision‑making was made in that regard, but he had more perceived control over that situation, which obviously would have further motivated his decision. The fact that his mother was also part of that initially, to regain that sort of lost control that he had.

The other really important factor, which I have also detailed in my report in paragraph 5.8, is the fact that he was only 21 years of age at the time. So, again, when we are talking about decision‑making the prefrontal cortex and the development thereof is also relevant, has a bearing on his decision‑making at that point in time.

Q. Is that because the brain have not yet fully developed?

A. That’s correct”

116. Ms Cullen explained in some detail the physiological reaction experienced by Mr Bowden when his PTSD was triggered. The release of adrenalin and cortisol were likely still impacting on the offender at the time he stabbed the deceased. Cortisol is associated with heightened risk-taking, reduced risk perception and impulsivity. In the circumstances of this case, the lapse of time between the “home invasion” and the stabbing is of little significance because the offender was still behaving, in the context of a stress response brought about by his PTSD.

117. The principles to be applied when sentencing an offender suffering from a mental illness or a mental health condition were succinctly summarised by McClellan CJ at CL in the Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]:

“177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24].”

118. I am satisfied that Mr Bowden’s complex PTSD contributed, in a material way, to his offending such as to reduce his moral culpability and moderate the weight to be afforded to general deterrence.

Bugmy Principles and Youth

119. The offender’s background has been comprehensively summarised. It is a background of disadvantage and deprivation. Prolonged exposure to violence may cause children to experience trauma and PTSD which have lasting effects on the child’s development, behaviour and wellbeing. The offender’s history of deprivation and disadvantage is relevant to an assessment of moral culpability.

120. The history of deprivation and disadvantage is relevant in the way set out in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 where the plurality held at [43]-[44]:

“[43] The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ’full weight’ to an offender’s deprived background in every sentencing decision. However this is not to suggest… that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

121. In R v MJ [2023] NSWCCA 306 Simpson AJA emphasised that the relevant link is between the profound disadvantage experienced by an offender and their impaired socialisation. At [5] her Honour eloquently observed:

“Implicit in those observations is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender’s impaired socialisation and adjustment to, and conduct in accordance with, those social norms. To search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence. It ignores the compromise of the ’capacity to mature and to learn from experience’: Bugmy at [43]. The plurality in the High Court were, as I understand [40] and [43] of the judgment, acknowledging the pervasive effect of profound deprivation, which is not confined to the commission of a single offence (or series of offences).”

122. I have taken into account Mr Bowden’s background of deprivation and disadvantage in reducing his moral culpability. The offender’s age is also relevant to the assessment of moral culpability.

123. The applicant was not a child at the time he committed the offence. However, he was a relatively young man, aged 21. I bear in mind that in sentencing young offenders, the sentencing principles make clear that retribution may be given less significance and considerations of rehabilitation may be more significant: BAP v R [2024] NSWCCA 206 at [91]; TM v R [2023] NSWCCA 185 at [47]-[50]; Tammer-Spence v R [2013] NSWCCA 297 at [36]; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [4]; KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[26].

124. The offender’s complex PTSD, his background of disadvantage and his relative youth are separate and independent considerations which are relevant to an assessment of his moral culpability. Although separate considerations, they operate together, in this instance, to reduce the offender’s culpability to a significant degree. They also operate to reduce the weight to be afforded to general deterrence and denunciation.

Conditions In Custody

125. The offender has experienced marked anxiety since he entered custody. He reported feeling both “lonely” and “depressed” which he attributed to spending extended periods of time in segregation. There is no dispute that he has spent a total of 594 days in segregation through no fault of his own. The classification as a “non-association inmate with OMCG”, is a result, it appears of his sister’s relationship with Mr Saliba. There is no suggestion that the offender is associated with OMCG. The offender has made multiple requests to have his classification removed, without success.

126. Ms Cullen opined that the offender’s mental health issues are exacerbated due to the extensive time spent in segregation and the restrictions imposed, for a period, by the COVID-19 pandemic. Ms Cullen further noted that:

“Research shows that even short periods of isolation can lead to detrimental and potentially irreversible health effects, with little, if any rehabilitative potential. Segregation can cause or worsen mental health conditions such as depression, anxiety, post-traumatic stress, psychosis, and cognitive deficits (Luigi et al., 2020).”

127. Ms Cullen’s diagnosis of moderate persistent depressive disorder, with intermittent major depressive disorder, is made in the context of the offender being in custody on remand for four years and having had prolonged periods in custody and segregation. I am satisfied that the conditions in custody are made more onerous by reason of Mr Bowden’s mental health issues that are exacerbated due to the periods he has spent in isolation.

128. Although there have been three disciplinary matters during his time in custody, they do not deprive the offender from a finding that he is a person of good character. Those infractions relate to a caution in 2021 when he was cooking in his cell which set off the fire alarm. The second infraction related to the possession of tobacco, which he was apparently holding for someone else. The last incident occurred just after the trial. He had a “dirty urine” which related to the use of Avanza which was not prescribed to him.

Prospects of Rehabilitation

129. The offender has accepted responsibility for his actions. At trial, he entered a plea of guilty to manslaughter. He had indicated his willingness to enter a plea of guilty to manslaughter from a very early stage of the proceedings. He gave evidence that he did not want the deceased to die that night, he was “devastated” that he did not call for an ambulance and expressed insight into the devastation his conduct caused to the deceased’s family. He reported to Ms Cullen:

“I’m very remorseful they had to bury their son, brother, (and/or) uncle. I wish I could take it back. I regret it. It was an honest mistake. It’s very, very ugly. I hate myself for what has happened…I’m very sorry to the victim’s family for everything that happened. I wish I could take it all back so he could still be there with his family.”

130. The offender continues to regret his decisions on that night. I accept that the offender is remorseful and has acknowledged the harm that it has caused the deceased and the continued anguish his family will face for the rest of their lives.

131. The offender has no prior criminal convictions. Whilst in custody, he has generally been of good behaviour and has undertaken a number of jobs and courses.

132. The offender was administered the LSI-R and HCR-20 assessment tools which presented that the offender was a low risk of reoffending for future violence. In terms of his prospects of rehabilitation, Ms Cullen opined that:

“5.12 This assessment has identified various protective factors which support favourable rehabilitation prospects and subsequently a lowered risk of recidivism, which include: Mr Bowden’s full accountability for the (accidental) index offence, as supported by his requests to have ambulance attend to the victim as well as Mr Bowden not having made any attempt to minimise or justify his actions; the lack of any past or current alcohol/drug misuse, which would otherwise increase his propensity for impulsivity; his strong family support; his commitment to work; future-orientation; work prospects and stable accommodation available following his release from gaol; and his (genuine) contrition.”

133. The Crown submitted that I would be cautious about making a finding that the offender was a low risk of reoffending. That submission is largely premised on the evidence that the offender has not expressed a willingness to engage in psychological treatment or counselling. There is no evidence that he has sought to do so and on the occasion that he was offered psychological counselling in custody he rejected it.

134. The Crown also submitted that having regard to the diagnosis of complex PTSD, there is a level of uncertainty about whether future triggers would result in reoffending.

135. The evidence is that the offender has been on remand for four years. Ms Cullen gave evidence that in her experience, the amount of treatment that is required for someone with complex PTSD is not readily available in custody.

136. The offender was offered psychological services on one occasion, following the death of his father. His refusal to engage with a psychologist on that occasion, must be assessed in the context of his grief about his father’s death and his frustration at not being able to attend the funeral.

137. There is no evidence that the offender has sought psychological counselling services in custody. However, it must be noted that the diagnoses made by Ms Cullen post-date her consultation with the offender on 17 September 2024. She has not had an opportunity to discuss those diagnoses with the offender.

138. Mr Bowden has experienced a disadvantaged background where he has been exposed to family and domestic violence, drug use and drug-related criminality, and family members who have been involved in the criminal milieu. In the face of that background, he has no criminal record, has maintained a stable relationship with his girlfriend and has engaged in employment. Ms Cullen maintained her assessment that the offender was a low risk of reoffending.

139. I find that Mr Bowden has very good prospects of rehabilitation and is unlikely to reoffend.

Purposes of Sentencing

140. Section 3A of the CSPA provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

141. The sentence I impose must denounce Mr Bowden’s conduct and hold him accountable for his actions. Punishment is also a relevant consideration. Notwithstanding, that he acted genuinely believing that he had to do what he did to protect himself, Mr Bowden used a knife to take the life of another human being.

142. General deterrence remains a relevant consideration. However, the weight to be afforded to general deterrence is moderated having regard to the offender’s mental health issues and his background of deprivation and disadvantage. Contrary to the Crown’s submissions, this is not a matter that warrants significant focus on personal deterrence. In light of my findings about the offender’s prospects of rehabilitation and the unlikelihood of his reoffending, personal deterrence is not a significant consideration in the sentencing exercise.

143. Mr Bowden’s background, youth, and future prospects warrant emphasis being placed upon rehabilitation and the protection of the community that successful rehabilitation affords.

Special Circumstances

144. A consideration of whether special circumstances exist, is not confined to a limited set of criteria. There are several factors that could justify a finding of special circumstances. There is no exhaustive list. The question as to whether such a finding is made will depend upon the circumstances of the individual case.

145. The offender urges a finding of special circumstances. Mr Evers relies on the offender’s age and subjective material revealing a significant history of disadvantage and deprivation, whereby the availability of appropriate treatment will be best available in the community. The offender has spent a significant portion of his sentence in segregation due to his non-association classification status. He was also taken into custody when COVID-19 restrictions were in place which resulted in increased periods of isolation and limited access at that time to family, education, and psychological services.

146. The Crown accepts that it would be open to make a finding of special circumstances.

147. I make a finding of special circumstances warranting a significant variation of the statutory ratio. I make that finding because I accept that the offender will require assistance in obtaining counselling to address his mental health conditions, upon his release. Furthermore, this is the applicant’s first time in custody. He is a relatively young man who has spent four years on remand with a significant portion of that time in segregation. I have also had regarding to this positive prospects of rehabilitation.

Sentence

148. Accordingly, I make the following orders:

1. Mr Bowden is convicted.

2. Mr Bowden is sentenced to a period of imprisonment of 7 years. The Court sets a non-parole period of 4 years and 1 month commencing on 10 November 2020 and expiring on 9 December 2024, with an additional term of 2 years and 11 months, expiring on 9 November 2027. The first date upon which Mr Bowden is eligible for release on parole is 9 December 2024.

3. In fixing the sentence, I have applied a 25% discount to reflect the utilitarian value of the plea of guilty.

4. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. I direct that the offender’s legal representatives advise him of the existence of the Act and its application to this offence.

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Decision last updated: 12 November 2024