R v Bowden

Case [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

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R v Bowden [2024] NSWSC 1428
Case
[2024] NSWSC 1428
Decision Date

CaseChat Overview and Summary

In this matter before the Court of Appeal, the appellant, Bowden, sought to appeal his conviction and sentence for the manslaughter of his former partner. Bowden had been convicted by a jury of the lesser-included offence of manslaughter, on the basis that he had acted in excessive self-defence. Bowden contended that the primary judge should have found that he intended only to inflict grievous bodily harm, rather than to kill, and that his post-traumatic stress disorder materially contributed to the offence. Bowden also sought to rely on his disadvantaged and deprived background, his youth, his reduced moral culpability and his very good prospects of rehabilitation in seeking a reduced sentence.

The central legal issues before the Court of Appeal were whether the primary judge erred in concluding that Bowden intended to kill the deceased and whether the primary judge erred in not sufficiently taking into account Bowden’s post-traumatic stress disorder in assessing sentence. The Court of Appeal held that the primary judge was correct to find that Bowden intended to kill the deceased, as the evidence established that he had made a conscious decision to kill. While Bowden did suffer from post-traumatic stress disorder, the Court of Appeal held that it did not materially contribute to the offence, as the evidence established that Bowden had been able to control his actions and that the disorder did not distort his perception of the events. The Court of Appeal also held that Bowden’s background and prospects of rehabilitation were properly taken into account by the primary judge in sentencing.

The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The Court of Appeal held that the primary judge had not sufficiently considered the totality of Bowden’s circumstances in imposing sentence, and that the sentence was manifestly inadequate. The Court of Appeal ordered that the matter be remitted to the sentencing judge for re-sentencing.

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