R v Bowie

[2023] NSWSC 207

Supreme Court

New South Wales

Medium Neutral Citation:

R v Bowie [2023] NSWSC 207

Hearing dates:

03 March 2023

Date of orders:

17 March 2023

Decision date:

17 March 2023

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

Sentenced to a non-parole period of 18 years, commencing on 5 October 2019, and expiring on 4 October 2037, with an additional term of six years’ imprisonment. The total term of imprisonment is 24 years, expiring on 4 October 2043

Catchwords:

CRIMINAL LAW — Murder — Murder of wife — Intention to kill — Disposal of wife’s body in such a way to elude detection — 40 years between commission of the offence and sentence — 72-year-old offender with medical conditions that can be treated in custody — Objectively serious offence

Legislation Cited:

Crimes Act 1900 (NSW) s 18(1)(a)

Crimes (High Risk Offenders) Act 2006 (NSW) s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21B, 61(1)

Crimes (Sentencing Procedure) Amendment Act 2022 (NSW) sch 2

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Bektasovski v R [2022] NSWCCA 246

Cherry v R [2017] NSWCCA 150

DH v R [2022] NSWCCA 200

Gulyas v Western Australia [2007] WASCA 263; 178 A Crim R 539

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Liu v R [2023] NSWCCA 30

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McKinnan v R [2020] NSWCCA 106

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Park v R [2019] NSWCCA 105

Quinn v R [2018] NSWCCA 297

R v Blanco (1999) 106 A Crim R 202; [1999] NSWCCA 121

R v Bowie (No 4) [2022] NSWSC 1505

R v Bunce [2007] NSWSC 469

R v Burrell [2008] NSWSC 30

R v Cavkic(No 2) [2009] VSCA 43

R v Dawson [2022] NSWSC 1632

R v Dukagjini(No 2) [2021] NSWSC 1668

R v Edwards [2019] NSWSC 1815

R v Hickson (No 4) [2020] NSWSC 340

R v Lane [2011] NSWSC 289

R v Raju [2007] NSWSC 1418

R v Smith (No 4) [2011] NSWSC 1082

R v Stone [2004] NSWSC 224

R v Warwick (No 94) [2020] NSWSC 1168

R v Wilkinson [2009] NSWSC 432

Rogerson v R; McNamara v R [2021] NSWCCA 160

Scott v R [2020] NSWCCA 81

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Category:

Sentence

Parties:

Rex (Crown)
John Douglas Bowie (Offender)

Representation:

Counsel:
A Morris (Crown)
W Terracini SC and K Ng (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
LY Lawyers (Offender)

File Number(s):

2019/00146792

Judgment

1. On 20 September 2022, John Douglas Bowie, the offender, was arraigned on an indictment containing a single count. The count averred that the offender, on, or about, 5 June 1982, at Walgett or elsewhere in the State of New South Wales, did murder Roxlyn Bowie (Roxlyn or the deceased).

2. The offender stood trial before a jury. The trial proceeded over four weeks, commencing on 20 September 2022. Although the indictment contained a single count of murder, manslaughter was also left for the jury’s consideration.

3. The jury retired to consider its verdict on 31 October 2022. The jury returned on the same day, with a verdict of guilty to murder. The sentencing proceedings took place on 3 March 2023. What follows are my remarks on sentence.

4. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act) and carries a maximum penalty of life imprisonment. As at the date of the murder, namely, on, or about, 5 June 1982, a standard non-parole period did not apply to this offence.

Impact on Roxlyn Bowie’s Loved Ones

5. Before I set out the circumstances giving rise to the offence and my findings, it is apt to commence with an acknowledgment of the life lost. The overwhelming evidence was to the effect that Roxlyn was a loving and devoted mother to her two children and had a good relationship with her parents. She was a somewhat quiet and unassuming person. She took on her responsibilities as a wife and mother, living in an isolated country town, doing the best that she could in a relationship with a man who was a self-admitted womaniser, who often drank too much.

6. I have taken into consideration the contents of the victim impact statement, which was read out by Roxlyn’s daughter, Brenda, with a great deal of dignity. I acknowledge that Brenda not only lost her mother when she was a child, but has also lived a life wondering about what happened to her, the circumstances of her death, and the whereabouts of her body.

7. 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.

8. The sentence I impose does not, and cannot, measure the value of Roxlyn’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 prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending.

Facts on Sentence

9. Roxlyn was born in May 1951 to parents Robert and Cecily Padley, who are both now deceased. The offender was born in June 1950.

10. The offender and Roxlyn married in August 1971 and had three children: Brenda, Charlene, and Warren. Charlene tragically died not long after she was born, an event that was deeply distressing for the deceased.

11. On 13 January 1975, the offender joined New South Wales Ambulance. He moved with Roxlyn to Walgett in March 1978 and resided at 93 Euroka Street. Whilst there, the offender was involved in several extra-marital affairs. Roxlyn stayed at home and became the full-time carer to their two children.

12. In May 1982, the offender commenced a sexual relationship with Ms Gail Clarke, who had been holidaying in Walgett for several weeks before returning to her home in Sydney. Between 24 May 1982 and 27 May 1982, the offender was in Sydney where he continued his affair with Ms Clarke.

13. On Saturday, 5 June 1982, at about 5:00pm, the offender finished his shift at the Ambulance Station and returned home for a short time. He gave several accounts of seeing Roxlyn and telling her that he would be going for a drink at the Imperial Hotel in Walgett. He said that Roxlyn replied that if he went out drinking, she would not be there when he returned home. The offender went to the Imperial Hotel before he attended the Walgett Returned and Services League Club (RSL) to continue drinking.

14. The offender’s account at the Coronial Inquest into the death of Roxlyn Bowie (being evidence admitted at his trial) was that at about 11:00pm, on the 5 June 1982, he returned home and found that Roxlyn was not there. The children were asleep in their beds. He looked through the house before going into the backyard and speaking with Eddy and Ruth Ovens, who resided in a caravan in the rear yard of 93 Euroka Street. Eddy and Ruth Ovens saw the offender that night. He searched the caravan, apparently looking for Roxlyn.

15. Mrs Ovens accompanied the offender into the house. Upon entering the house, she found a letter underneath a sugar bowl in the middle of the dining table, written by Roxlyn. This letter was referred to at trial as the “Dear John” letter. It stated:

“Dear John,

I am leaving you with the kids for good. I’ve thought about it for a long time now and tonight I finally did it. I’ve packed a few things and you can have the rest. I don’t want anything to remind me of you or the kids. Don’t try and find me, because I will never come back to you.

Bye

Roxlyn.”

16. After the letter was discovered, the offender went to the pub, bought six cans of beer, attended the caravan, and continued drinking with Mr and Mrs Ovens. With the assistance of Mr Ovens, the offender drove to several friends’ houses looking for Roxlyn, however, no one had seen her.

17. On the morning of Sunday, 6 June 1982, Mr and Mrs Ovens’ son, Brian Coleman, saw the offender carrying a shovel from the front of his property to the rear yard. The offender claimed that on this date, he attended Walgett Police Station to report Roxlyn as missing.

18. On, or about, 8 June 1982, Mrs Padley, the deceased’s mother, received a letter, postmarked 7 June 1982 from Coonamble Post Office. This letter was referred to at the trial as the “Dear Mum & Dad” letter. It stated:

“Dear Mum & Dad,

Just a short note to say that I have left John and the kids for good. I’m making my way to South Australia or Western Australia to start a new life.

Please don’t be hard on John because it wasn’t his fault that I left. I will write again when I settle down.

Love

Roxlyn.”

19. Numerous people who knew Roxlyn described her as a doting mother who loved and lived for her children. Shortly before she went missing, she was planning a birthday party for her two-year-old son, Warren, which was to be held at the family house the week following her disappearance.

20. In the days following Roxlyn’s disappearance, the offender contacted Roxlyn’s friend, Noelene Knight, and told her that Roxlyn had left him and the children. The offender told Mrs Knight that he had been at the Imperial Hotel. When he got home, he told Roxlyn that he was going out drinking and Roxlyn replied: “If you go back John, I won’t be here when you come home”.

21. Mrs Knight subsequently handed the phone to her husband, Brian Knight. The offender asked Mr Knight to come to Walgett to collect Brenda and Warren, and drop them at Roxlyn’s parents’ house. Mr Knight agreed and collected the children in the days after. The offender never contacted Roxlyn’s parents to advise them that Roxlyn was missing.

22. On 11 June 1982, the offender applied for a transfer to Bankstown Ambulance Station, which was granted. He had no ties to the Bankstown area, except to Ms Clarke, the woman he had begun an affair with. The request to transfer came just days after Roxlyn went missing.

23. On 21 June 1982, the offender attended the residential address of Ms Clarke at Condell Park. He sought to continue his relationship with her, however, she rebuffed him.

24. On 25 June 1982, Roxlyn’s cousin, Ms Margaret Rule, travelled to Walgett to commence inquiries on behalf of Roxlyn’s parents. Ms Rule attended Walgett Police Station to officially report Roxlyn as missing. A police investigation subsequently commenced.

25. In light of the jury verdict, I proceed to sentence the offender on the basis that he murdered Roxlyn on or about 5 June 1982. Extensive searches conducted in Walgett and surrounding towns have failed to locate Roxlyn’s remains.

Cause of Death

26. Roxlyn’s body has never been found so the precise way in which she died is not, and cannot be, known. Accordingly, no valid conclusions can be reached about the nature of the act that caused her death. However, I am satisfied beyond reasonable doubt that at the time the offender committed the voluntary and deliberate act or acts that caused Roxlyn’s death, he did so with an intention to kill her. The Crown case at trial was solely based on an intention to kill.

27. Mr Terracini SC, on behalf of the offender, did not take issue with this finding. However, he submitted that I would not be satisfied beyond reasonable doubt that the offender was motivated to kill his wife so that he could pursue an “unfettered” relationship with Ms Clarke. Secondly, I would not be satisfied beyond reasonable doubt that the offender forced, or directed, Roxlyn to write the “Dear John” and “Dear Mum & Dad” letters.

Circumstances of Offence

Submissions

28. Mr Morris, on behalf of the Crown, submitted that the Crown’s case at trial was that the offender “coerced” the deceased to write the “Dear John” and “Dear Mum & Dad” letters. The Crown relied upon this fact as circumstantial evidence to prove the offender’s intention to kill Roxlyn. The Crown pointed to the expert evidence to support this finding. The Crown also relied upon the offender’s motive to have an “unfettered” relationship with Ms Clarke as another circumstance evidencing an intention to kill. The Crown submitted that the combined effect of those circumstances would readily satisfy the Court, beyond reasonable doubt, that the offence was “premediated”.

29. Mr Terracini SC submitted that although the jury did infer, in the ordinary way, the offender’s intention to kill was based on those two circumstances, the verdict itself should not be construed as the jury’s acceptance of either of those circumstances beyond reasonable doubt. Accordingly, it was argued that this Court, at sentence, could not be satisfied of each of those “facts” to the requisite standard.

30. Mr Terracini SC submitted that there was no direct evidence that the offender “coerced” the deceased to write the letters. The height of the expert evidence led by the Crown at trial, was to the effect that the two letters were written differently to Roxlyn’s normal handwriting. It was submitted that the Court could not exclude the possibility that the offender found the letter written by Roxlyn and murdered her because she was going to leave him.

Finding

31. Although I declined to give a direction at trial in accordance with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (a Shepherd direction) (see R v Bowie (No 4) [2022] NSWSC 1505), the jury were directed as follows:

“In respect of the third element, namely, that at the time he caused her death by deliberate act, or acts, he had an intention to kill, the Crown relies upon two inferences that the Crown says you will draw from the established facts. Firstly, that you would be satisfied that the two letters written by Roxlyn Bowie were written under duress, coercion, or instruction by the accused and that they demonstrate a degree of planning or premeditation. Secondly, that the accused’s motive to kill Roxlyn Bowie was to get rid of her so that he could pursue an unfettered relationship with Gail Clarke.

You must scrutinise very carefully the evidence upon which you are asked to draw the inferences in support of an intention to kill on the part of the accused. It is most important that you understand the before you could return a verdict of guilty to murder, the Crown has to establish each of the elements beyond reasonable doubt, including the element of the accused’s state of mind. Here, what the Crown has to prove beyond reasonable doubt in respect of the accused’s state of mind, before you could return a verdict of guilty to murder, is at the time that he caused Roxlyn Bowie’s death, he did so with an intention to kill her.”

32. The Crown case at trial was that the offender voluntarily and deliberately committed an act or acts which caused the death of Roxlyn, with an intention to kill her. Although the Crown case relied on numerous circumstances to establish that Roxlyn was in fact dead, and that her death was caused by the offender, the Crown case in respect of an intention to kill was limited to two specific circumstances, namely, motive and “coercing” the deceased to write the two letters.

33. I am satisfied beyond reasonable doubt that the offender was motivated to kill his wife in order to have a “serious” and “unfettered” relationship with Ms Clarke. I make that finding for the following combined reasons:

1. the offender had a sexual relationship with Ms Clarke;

2. Ms Clarke told police that the offender wanted a serious relationship with her;

3. the offender was with Ms Clarke on the day of the deceased’s birthday;

4. the relationship between the offender and the deceased was deteriorating; and

5. the offender applied for a transfer to the very suburb where Ms Clarke was residing, and moved from Walgett to Sydney to take up that position within a short period after Roxlyn’s disappearance.

34. The fact that Ms Clarke did not want a relationship with the offender does not detract from his feelings for her.

35. I am also satisfied beyond reasonable doubt that the offender “coerced” or “directed” the deceased to write the two letters. The expert evidence established that the exhibit letters were written slowly and deliberately and were unlike Roxlyn’s sample written material. Furthermore, some of the letters and words in the exhibit letters were not consistent with Roxlyn’s style of writing and appeared to be very similar to the offender’s style of writing, giving rise to an inference that she was made to copy the contents. Expert evidence was also led about the indentation in the exhibit letters which did not match Roxlyn’s pattern of variable indentation.

36. In addition, there was circumstantial evidence to support a contention that the exhibit letters were not written voluntarily by the deceased. Firstly, the evidence established that the deceased was a devoted and loving mother, unlikely to have abandoned her children because she had simply had enough of the relationship with her husband. Secondly, her disappearance on a Saturday night from a remote town in western New South Wales, in circumstances where there was no public transport out of town at the relevant time, and no reasonable possibility that she had spent the weekend somewhere before leaving town on the Monday, is circumstantial evidence supporting the contention that the offender directed or forced the deceased to write those letters so that he could later claim that she had simply abandoned him and her children.

37. I am satisfied, therefore, that there was a level of planning. I cannot, however, determine with any certainty as to when the offender directed or coerced the deceased to write the letters. It could have happened on the very day that he killed her. To the extent that there was a level of planning, it was not extensive or sophisticated.

Disposal of Body

38. A body of evidence was adduced at trial about representations made by the offender to the effect that the best way to dispose of a body, was to feed it to the pigs. The Crown does not press a finding that the offender disposed of the deceased’s body in that fashion. I will not, therefore, summarise the evidence given during the trial on that topic.

39. However, for abundant clarity, I am not persuaded that the evidence adduced at trial establishes that the offender disposed of his wife’s body by feeding her to the pigs. Notwithstanding extensive investigation, there was no forensic evidence to support that theory. Furthermore, the accounts given by the witnesses about what the offender had told them were obtained by police many years after the conversations took place. The extent to which these witnesses were reliable in their recounting of the representations and the context in which they were made, is highly questionable.

40. I am satisfied that the offender disposed of his wife’s body in a way that has eluded detection to protect himself and to prevent the body from being available for forensic examination. The disposal of Roxlyn’s body in this fashion, and for these reasons, constitutes an aggravating circumstance. The concealment of the body is not limited in its significance to the absence of remorse: see R v Wilkinson [2009] NSWSC 432 at [61]; R v Cavkic (No 2) [2009] VSCA 43 at [134].

Objective Seriousness

41. An intention to kill is a matter that tends generally to increase the objective seriousness of the offence of murder, in contrast to a death caused by an act committed with an intention merely to inflict grievous bodily harm: see R v Dawson [2022] NSWSC 1632 at [7] (Dawson).

42. While the assessment of objective seriousness is, to some degree, made difficult by virtue of the fact that the mechanism causing death is unknown, there are a number of factors which have been clearly established, and from which an informed assessment about the objective seriousness of the offence can be made. Those factors include the following:

1. the offender committed a deliberate act or acts with an intention to kill the deceased;

2. there was a degree of planning and premeditation, although not extensive or sophisticated;

1. the offender was motivated by a desire to pursue a relationship with Ms Clarke;

2. the offender directed the deceased to write the two exhibit letters as part of the ruse that she had simply left the family home in search of a better life;

3. the offender disposed of the deceased’s body in a way that has eluded detection to protect himself from prosecution and to prevent the body from being available for forensic investigation; and

4. I am not satisfied that Roxlyn was killed in her home. The Crown case at trial was not limited to a killing in the family home, but extended to Walgett and elsewhere in New South Wales.

43. It is not necessary to describe the objective seriousness of the offence by reference to a notional mid-point: see DH v R [2022] NSWCCA 200 at [57] – [62]. Nevertheless, it does remain the duty of this Court to make an assessment of the seriousness of the offence. By reference to the circumstances identified above, and to the extent that the parties have referred to descriptors such as “mid-range”, I am satisfied that the objective seriousness of this offence lies within the mid-range.

Imposition of a Life Sentence

44. During the sentencing proceedings, the Crown submitted that this is not an example of the offence of murder that calls for the imposition of the maximum penalty, namely, life imprisonment.

45. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) relevantly provides:

(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

46. The proper approach to s 61(1) of the CSPA was considered in Rogerson v R; McNamara v R [2021] NSWCCA 160. The Court noted, at [634], that:

“The proper construction of s 61(1) arose recently before this Court, constituted by five members, in CC v R; R v CC [2021] NSWCCA 71. Three members of the Court determined that it was not necessary to decide whether s 61(1) permitted a two-stage approach, concluding that the sentencing judge, who had not imposed a life sentence, did not adopt that approach: at [50] per Bathurst CJ; [73] per Hoeben CJ at CL; and [96] per Wilson J. Hamill J (at [93]) adhered to the view he stated in Qaumi. Adamson J held that the correct approach was that stated in R v Harris (Bell J) as approved in R v Harris (CCA), stating as follows (at [81]-[83]):

“81 …The focus of the court’s attention in s 61(1) is the offender’s ‘level of culpability in the commission of the offence’. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender’s level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing: see R v Burke [1983] 2 NSWLR 93 at 101C-D (Nagle CJ at CL). Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others.

…

83 If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender’s level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge.” (emphasis added)

47. Although the offender’s culpability is serious, it is not so extreme such that the community interests in retribution, punishment, protection, and deterrence, can only be met through the imposition of a life sentence.

Subjective Circumstances

Summary of Psychological Report

48. The offender’s background is before me primarily by way of a report prepared by Ms Julie Dombrowski, psychologist, dated 16 February 2023. The contents of that report can be summarised as follows:

Family Background

49. The offender is now 72 years of age. He grew up in Hornsby and is the fourth eldest child born to his parent’s union. His father worked as a labourer at the local brickworks, and, later, as a cleaner at a school. His father consumed alcohol heavily and gambled regularly, which placed considerable financial strain on the family. The offender reported witnessing regular physical violence between his mother and father. He was also subject to excessive corporal punishment at the hands of his father. On one occasion, the offender recalled that his father whipped him with a garden hose for a minor infraction. His parents separated when he was aged 16. The offender subsequently moved out of his family home to work at a regional location. Despite these challenges, he did not report any neglect or developmental delays in his early childhood.

50. At the time of the subject offence, the offender was living with the deceased and their two young children in Walgett. He reported a discord in his relationship with the deceased, largely around “his heavy use of alcohol, his infidelity, and his desire to move away from Walgett”. Since his arrest, the offender has lost contact with his daughter, Brenda, and most of his siblings.

Education and Employment

51. The offender attended school until the age of 15. He typically achieved “below average” grades and regularly truanted. He was ultimately removed from classes during his final year and spent much of his time conducting groundskeeping duties at the school. After leaving school, he moved to Moree to work as a jackeroo, before joining the Australian Army at the age of 17. He served six years in the military, including serving in Vietnam for a couple of months in 1969 as an engineer on a supply ship. Upon returning to Australia, he worked as a security officer and firefighter, before joining the New South Wales Ambulance Service for approximately 13 years.

Drug and Alcohol Abuse

52. At the age of 17, the offender started using alcohol in social settings. Between 1969 and 1982, including at the time of the subject offence, he consumed alcohol heavily. The offender reported that he typically started drinking in the morning and would consume approximately 375 millilitres of spirits and six beers during the day, including while at work. He would then consume more alcohol at licensed venues after work.

Medical and Psychiatric History

53. The offender was diagnosed with sleep apnoea at the age of 64, and, more recently, he was diagnosed with Type II diabetes. He currently takes medication to manage his coronary health and diabetes, in addition to using a Continuous Positive Airway Pressure machine to aid sleep at night.

54. The offender reported that he attempted to commit suicide on two occasions; first, at the age of 38 when he attempted to shoot himself; and, second, at the age of 52 when he attempted to drive a vehicle of a precipice. Following his second suicide attempt, the offender reported that his mental health declined, and he was unable to keep working. He described experiencing a “strong desire to withdraw”. In 2007, he was admitted to Greenslopes Hospital following a “nervous breakdown”, where he received six weeks of in-patient treatment. He has taken anti-depressant medication for the past 20 years.

55. Psychometric testing administered by Ms Dombrowski resulted in a “valid protocol”. Ms Dombrowski noted that there was no indication of any significant emotional, thought, or behavioural dysfunction. The offender’s responses predominantly consisted of somatic complaints, low positive emotions, and low-level emotional disturbance.

56. Ms Dombrowski opined that:

“it is difficult to comment specifically on any nexus between his psychological functioning and the subject offending given his denial of the subject offence, however his alcohol use and insecure attachment style (and associated difficulties managing emotional dysregulation during interpersonal conflict and distress) are likely significant factors.”

Remorse

57. In his interview with Ms Dombrowski, the offender maintained that he has not harm the deceased, and that she voluntarily left him and the children as she was unsatisfied with their marriage.

58. It is important to note that he is not punished for pleading not guilty and running his trial. However, he has not accepted responsibility for his actions. His daughter and his extended family continue to live with the anguish of not knowing the whereabouts of Roxlyn’s body. I find that the offender is entirely without remorse.

Criminal History

59. The offender’s criminal history in New South Wales commenced in 1984, when he was 34 years of age. His offending then consisted of forgery and property destruction. In 1992, the offender pleaded guilty and was convicted for an offence of shoot at with intent to murder. In his remarks on sentence, Studdert J found that the crime was motivated by the offender’s infatuation with the victim’s wife and involved “unquestionably…a measure of planning”. Nonetheless, Studder J made positive findings regarding the offender’s contrition and prospects of rehabilitation. He was sentenced to a term of imprisonment of four years and six months, with a non-parole period of one year and six months’ imprisonment.

60. In 2017, the offender was charged in Queensland for a number of sexual offences against his stepdaughter. He was sentenced at Toowoomba District Court in 2019 to a term of imprisonment of three years, to be suspended after the offender served 10 months’ imprisonment.

61. The offender’s criminal record, while not extensive in terms of the number of convictions, contains convictions for serious criminal acts for which he received terms of imprisonment. While his criminal record does not operate as an aggravating factor, it deprives him of the leniency that would be afforded a first-time offender, or a person with a limited criminal record.

Prospects of Rehabilitation

62. Ms Dombrowski opined that the offender was a “high to moderate” risk of committing further offences within five years of his release. I am guarded about the offender’s prospects of rehabilitation. He has previously been convicted of serious criminal offences. He shows no remorse for his actions. He is assessed as being a “high to moderate” risk of reoffending.

Summary of Julie Dombrowski’s Evidence at the Sentencing Proceedings

63. Ms Dombrowski was called to give evidence during the sentencing proceedings. In cross-examination, she conceded that, after having regard to the letter authored by Adam Riddell, Acting Governor of the Metropolitan Special Programs Centre (MSPC), the offender’s status in the Special Management Area Placement, is no more or less restrictive than mainstream custody. Ms Dombrowski remained of the opinion that the offender’s diagnosis of Type II diabetes, sleep apnoea, and an unspecified heart condition, would make conditions in custody more onerous.

64. When asked about the offender’s family history and exposure to domestic violence, Ms Dombrowski found no material difference between the offender’s account of “occasionally” or “regularly” witnessing violence perpetrated by his father against his mother. She went on to give evidence that the offender demonstrated, later in life, a pattern of interpersonal relationship difficulties resulting from witnessing violence at home. She did not consider the regularity with which he witnessed the violence as a material factor. A more telling clinical tool is the nature of interpersonal relationships that he formed in adulthood.

65. Ms Dombrowski maintained her opinion that the offender’s alcohol use and insecure attachment style (and associated difficulties managing emotional dysregulation during interpersonal conflict and distress) are likely significant factors contributing to the subject of his offending.

66. In my view, there is insufficient evidence to establish a nexus between the offender’s psychological functioning and the commission of the offence such as to reduce his moral culpability or reduce the weight to be afforded general and specific deterrence.

67. While I accept that the offender was drinking heavily in the relevant period, I am unable to find that his alcohol consumption was connected, in any way, to the commission of the offence. I, therefore, do not take into account the offender’s psychological profile or excessive drinking to reduce his moral culpability, or the weight to be afforded general and specific deterrence and denunciation.

68. I have taken into account the contents of the psychological report, including the offender’s reported history of excessive alcohol use and insecure attachment style, as matters relevant to his subjective case and the process of instinctive synthesis that I must engage in to arrive at a proportionate sentence.

Age and Onerous Conditions in Custody

69. There is no disagreement as to the relevant principles applicable in cases where the offender is of an advanced age: see Gulyas v Western Australia [2007] WASCA 263; 178 A Crim R 539; Liu v R [2023] NSWCCA 30. Where advanced age is coupled with some other factor, for example when there is an age-related mental impairment, allowance may be made for that factor by virtue of a reduction in moral culpability. Account may also be taken of hardship for the offender arising out of his knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of a useful life after release. It has also been said that there are factors associated with advanced age that justify a less severe sentence than might otherwise be the case having regard to the proper weight afforded deterrence and denunciation.

70. In the present case, it is accepted on behalf of the offender, that his age, namely, 72, is not such as to enliven these considerations. The offender does, however, rely upon more onerous conditions in custody by virtue of a combination of factors, which include age and physical ailments. The offender’s physical conditions require medication and monitoring, but do not require specialist treatment or modifications.

71. I accept, as a matter of common sense and human experience, that an ageing prisoner would have more complications in custody as their medical needs increase, a matter that is very likely to render conditions in custody more onerous than they are for a younger, fit individual. A prisoner has no control over the frequency or quality of medical assistance provided to him or her. In the community, an individual has the capacity to make decisions and exercise control over access to medical professionals and medication.

72. Furthermore, as acknowledged by the Crown in written submissions, the Court would take into account that the COVID-19 pandemic has caused some restriction on the offender having face-to-face contact for a period of time: see Scott v R [2020] NSWCCA 81; McKinnan v R [2020] NSWCCA 106, although, given the length of the period of imprisonment that will be imposed, it cannot be assumed that such restrictions will continue to apply.

73. It is difficult to predict the impact of COVID-19 on prisoners in the years to come. While not a material consideration, the restrictions placed on prisoners as a result of COVID-19 is also relevant to onerous conditions in custody.

74. The extent to which these onerous custodial conditions mitigate sentence in this case is modest, however, having regard to the fact that the offender’s medical conditions are adequately treated in custody at present.

Purposes of Sentencing

75. In Quinn v R [2018] NSWCCA 297, the Court said, at [243], that a just and appropriate sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of offenders who kill their spouse.

76. In Cherry v R [2017] NSWCCA 150 (Cherry), Johnson J (with MacFarlan and Harrison JJ agreeing) cited the passage in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, at [55], (Munda):

“…a failure on the part of the state to mete out a just punishment for violent offending may be seen as a failure by the state to vindicate the human dignity of the victim…”

The Court in Cherry went on to observe, at [79], that:

“In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence.”

77. These principles are apposite. In addition, general and specific deterrence are relevant purposes of sentencing. To the extent that specific deterrence is afforded weight, it must be balanced as against the reality that the offender will be spending a lengthy period in custody. He is now 72 years old and will not be eligible for release for some significant time. The reality is that he may die in custody.

78. General deterrence is a weighty consideration. The murder of a spouse, whatever the motivation is, will be met with condign punishment and requires the imposition of a sentence that will deter other like-minded offenders from inflicting violence on their intimate partners.

Delay

79. There has been a delay of some 40 years between the commission of the offence and sentence.

80. The impact of delay when sentencing an offender is a long-standing principle enshrined in R v Blanco (1999) 106 A Crim R 202; [1999] NSWCCA 121, at 306[16]:

“The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach.”

81. There is no evidence that the offender has lived in a state of uncertain suspense during the last four decades. His New South Wales criminal record demonstrates that the last conviction was in 1992 and that he has not reoffended in this State. His Queensland criminal record discloses sexual assaults and domestic violence related offending that he was charged with in 2017 and sentenced for in 2019. While there was a gap of many years between the offending, the offender has committed serious offences in more recent times.

82. The relevance of delay, in my view, is in respect of the application of section 21B of the CSPA, which relevantly provides:

21B Sentencing patterns and practices

(1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing.

(2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing.

(3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if—

(a) the offence is not a child sexual offence, and

(b) the offender establishes that there are exceptional circumstances.

(4) When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing.

83. Schedule 2 of the Crimes (Sentencing Procedure) Amendment Act 2022 (NSW) provides that the amendments made to the CSPA “do not apply to proceedings that commenced before the commencement of the amendments”.

84. In Bektasovski v R [2022] NSWCCA 246, Kirk JA held (with whom Beech-Jones CJ at CL and myself agreed), at [51], that:

“It is open to construe the phrase “proceedings the hearing of which began before the commencement of the amendment” as referring to proceedings on indictment from the time an accused is first arraigned in the court which goes on to hear the substantive trial of the accused.”

85. In this case, the offender was arraigned in the Supreme Court of New South Wales on an amended indictment prior to the commencement of the trial, namely, on 26 September 2022. Accordingly, s 21B of the CSPA does not apply to the offender and he is to be sentenced according to the prevailing sentencing practices at the time of the offence.

86. The practical consequences of that change in sentencing patterns for offences of murder were set out by Grove J in R v Stone [2004] NSWSC 224, at [47]:

“…I am bound by authority to apply a principle that where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, then the sentence now to be imposed should reflect, not the later, but the earlier regime…”

87. I accept, as a general proposition, that sentences for murder have increased considerably in the years since 1982: see R v Hickson (No 4) [2020] NSWSC 340 at [72]; R v Smith (No 4) [2011] NSWSC 1082 at [23] – [24]; R v Bunce [2007] NSWSC 469 at [93]. The introduction of standard non-parole periods for offences of murder committed after 1 February 2003, has been a significant factor in that increase.

88. That said, the comparative cases that have been provided to me, and which will be addressed below, do not necessarily establish a sentencing practice or pattern. By way of observation only, one wonders about the reasonableness of the requirement that a court must sentence in accordance with sentencing patterns and practices at the time the offence was committed (here 1982), where societal attitudes to domestic relations and domestic violence have changed considerably.

89. The offender relied upon three decisions of the Supreme Court of New South Wales in respect of sentences that were imposed for “historical” offences of murder. The following table sets out the penalties imposed in each case.

Case	Sentence
R v Dukagjini (No 2) [2021] NSWSC 1668	20 years’ imprisonment, with a non-parole period of 13 years’ imprisonment.
R v Hickson (No 4) [2020] NSWSC 340	22 years’ imprisonment, with a non-parole period of 15 years’ imprisonment.
R v Warwick (No 94) [2020] NSWSC 1168	Life imprisonment without parole.

90. It is accepted on behalf of the offender that these decisions do not establish any practice, and each depend on their own facts.

Comparable Cases

91. The offender also relied upon the following comparative cases:

R v Raju [2007] NSWSC 1418

92. Mr Raju was found guilty of murdering his wife after trial, and in the circumstances where the body of the deceased was never found. Accordingly, the manner of the murder was not known. The murder in that case was found to be motived by jealously. The trial Judge ultimately found that Mr Raju murdered the deceased with an intention to kill. The offender was sentenced to a term of imprisonment of 21 years, with a non-parole period of 16 years’ imprisonment.

R v Burrell [2008] NSWSC 30

93. Mr Burrell was alleged to have murdered the deceased in 1995. He went to trial in 2007. The body of the deceased was never found, and the means by which the deceased was murdered was unknown. The motivation for the murder was found to be financial gain. The murder was said to have been part of a ploy to extinguish a debt. Although the trial Judge accepted that motivation, it was not accepted that the offending was aggravated by virtue of planning and/or premeditation. The offender was sentenced to a term of imprisonment of 28 years, with a non-parole period of 21 years’ imprisonment.

R v Wilkinson [2009] NSWSC 432

94. Mr Wilkinson pleaded guilty to the murder of his pregnant partner. He had disposed of her body. He sought to withdraw his plea, an application that was refused. The offence was committed after the standard non-parole period provision was introduced. Accordingly, a standard non-parole period of 20 years’ imprisonment applied to this offence. The sentencing Judge found that the offender had murdered the deceased with an intention to kill and had taken other steps in an attempt to conceal the murder. The offender was sentenced to a term of imprisonment of 28 years, with a non-parole period of 21 years’ imprisonment.

R v Lane [2011] NSWSC 289

95. Ms Lane was convicted after trial of causing her daughter’s death, with an intention to kill, shortly after her daughter was born. The body of the deceased was never located. The precise mechanism causing death was unknown. The trial Judge found that the offence was “relatively spontaneous”, but, beyond that, was unable to make any findings about the circumstances of the murder. His Honour was satisfied of two aggravating features in that case, namely, the youth of the deceased, being only two days old, and the abuse of a position of trust. The offender was sentenced to a term of imprisonment of 18 years, with a non-parole period of 13 years’ and five months’ imprisonment.

R v Edwards [2019] NSWSC 1815

96. Mr Edwards was found guilty of murdering his wife. He was sentenced on the basis that he had killed his wife in 2015. Her body was never found. The trial Judge found that although the objective seriousness was difficult to assess in the absence of knowing how the deceased was murdered, the offender had killed his wife after she had expressed an intention to leave him. The trial Judge also found that the offender had an intention to inflict grievous bodily harm, and that he inflicted that harm upon the deceased in her own home. He was sentenced to a term of imprisonment of 24 years, with a non-parole period of 18 years’ and six months’ imprisonment.

Other Comparable Cases

97. The Crown relied upon the case of Dawson. In that case, the offender caused his wife’s death with an intention to kill her. The deceased’s body has never been found. The trial Judge found that the killing was planned, with the decision made at least one week prior to the killing. Harrison J further found that the murder took place in the family home and was motivated by the offender’s infatuation with JC and his strong desire to be exclusively with her. His Honour ultimately concluded that the offence was an objectively very serious offence. The offender was sentenced to a term of imprisonment of 24 years, with a non-parole period of 18 years’ imprisonment.

98. There are some similarities between this case and the circumstances in Dawson. The offender caused Roxlyn’s death with an intention to kill her. There was a degree of planning, given that I have accepted that he “coerced” or “directed” her to write the two letters. The offender has disposed of Roxlyn’s body in such a way as to elude detection. The killing took place some 40 years ago. Unlike the case of Dawson, I cannot find that Roxlyn was killed in her home. Furthermore, I do not find that the offender had formulated a plan to kill Roxlyn days before her disappearance. On the other hand, this offender has a criminal history that disentitles him to leniency.

Use of Comparable Cases and Statistical Data in Sentencing Proceedings

99. The point of sentencing judges having regard to what has been done in other cases is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases and statistical data may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence: see The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26].

100. However, the use of comparative cases and statistical data should be approached with some caution. I bear in mind that information about sentences that have been passed in other cases does not necessarily capture the spectrum of facts in a particular case, or are otherwise determinative of the upper or lower limits of sentencing discretion: see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] – [49]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [25] – [28]; Munda at [39]; Park v R [2019] NSWCCA 105 at [34].

101. The comparative cases summarised above, insofar as they demonstrate a range, reveal a head sentence of between 28 years’ imprisonment and 18 years’ imprisonment, and non-parole periods of between 21 years’ imprisonment and 13 years’ and five months’ imprisonment. Ultimately, a balance must be struck between all the factors to be considered in arriving at the appropriate sentence by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

Special Circumstances

102. The offender urges a finding of special circumstances. The Crown submitted that because of the length of the sentence to be imposed, the usual period of parole will be more than adequate to address the offender’s reintegration into the community.

103. A consideration of whether special circumstances exist, is not confined to a longer than usual parole period for the offender to readjust to life in the community. There are a number of 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.

104. For the reasons set out above, I am satisfied that the conditions of custody will be more onerous on the offender particularly as he ages. I have taken that into account in determining the appropriate term of imprisonment. I am not persuaded that a finding of special circumstances should be made such as to vary the statutory ratio. The offender will be on parole for a lengthy period in any event.

105. The sentence I am about to impose is the result of a process of instinctive synthesis, which includes consideration of the objective seriousness of the offence, the offender’s subjective case, and the various purposes of sentencing. Clearly, a lengthy period of full-time imprisonment is warranted.

106. John Douglas Bowie, for the murder of Roxlyn Bowie, on, or about, 5 June 1982, at Walgett or elsewhere in the State of New South Wales, I sentence you to a non-parole period of 18 years, commencing on 5 October 2019, and expiring on 4 October 2037, with an additional term of six years’ imprisonment. The total term of imprisonment is 24 years, expiring on 4 October 2043. The first day upon which you will become eligible for parole is 4 October 2037.

107. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), I note that the provisions of that Act have potential application to you. I request 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: 21 March 2023