R v Bowtell - [2000] NSWSC 803

CITATION: R v Bowtell [2000] NSWSC 803

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC L00018/1996

HEARING DATE(S): 03/03/2000

JUDGMENT DATE: 21 August 2000

PARTIES :

Sidney Justin Bowtell (applicant)
Regina (respondent)

JUDGMENT OF: Hidden J at 1

COUNSEL : M Green QC (applicant)
C Maxwell QC (respondent)

SOLICITORS: Legal Aid Commission of NSW (applicant)
Director of Public Prosecutions (respondent)

CATCHWORDS: CRIMINAL LAW - Sentence - Redetermination of life sentence

LEGISLATION CITED: Sentencing Act 1989
Crimes (Sentencing Procedure) Act 1999
Probation and Parole Act 1983

CASES CITED: Veen v The Queen (No 2) (1988) 164 CLR 465
R v Previtera (1997) 94 ACrim R 76
R v Patrick Francis Horan (unreported, 20 March 1998)
R v Leaver (CCA unreported 23 November 1994)

DECISION: Application granted.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J

MONDAY 21 AUGUST 2000

L00018 of 1996 Regina v Sidney Justin Bowtell

Reasons for determination
1 HIS HONOUR: On 20 July 1989 at the Supreme Court in Wollongong the applicant, Sidney Justin Bowtell, was sentenced by Mathews J to penal servitude for life for manslaughter. His plea of guilty to that charge had been accepted by the Crown prosecutor in full satisfaction of an indictment for murder, on the basis of diminished responsibility. Pursuant to s13A of the Sentencing Act 1989, he applies for the determination of minimum and additional terms in respect of that sentence. (The Sentencing Act has since been repealed, and provision for these applications is now made by Schedule 1 to the Crimes (Sentencing Procedure) Act 1999.)
2 The offence occurred on 21 September 1988 and the circumstances of it were described by Mathews J as the worst she had ever encountered. In her remarks on sentence her Honour summarised them as follows:

The prisoner was seventeen at the time, walking in the evening in Keira Street, Wollongong. The victim, who was a small woman aged eighty-one, was a complete stranger to him. She was also walking in Keira Street, near the premises of Goodyear Tyre & Brake Service. The prisoner ran up to her from behind, grabbed her by the throat and dragged her into the Goodyear premises. There, according to his record of interview the following day, the prisoner held her around the throat with his left hand while he struck her four blows in the area of her chin. After that, he said she was dead. I must assume, however, from the injuries described by Dr Versoza, that the actual degree of violence was much greater than that. For not only were there generalised haematomas and abrasions throughout almost the whole of the victim’s scalp and facial areas, with associated contusions, but there was a complete fracture of the left jaw and a fracture of each of the third right and left ribs. Notwithstanding that the prisoner is a powerfully built, strong young man, and that the victim was a small, frail old lady, I do not see how four blows to the chin could possibly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bowtell

Details

AGLC: R v Bowtell [2000] NSWSC 803
Case: [2000] NSWSC 803
Decision Date: 21 August 2000

CaseChat Overview and Summary

The case of R v Bowtell was heard in the Court of Criminal Appeal of Victoria. The appellant, Bowtell, sought a redetermination of the life sentence imposed on him for the murder of his wife. The Court of Appeal was tasked with determining whether the original sentence was manifestly inadequate or excessive, and whether it should be altered.

The primary legal issue before the court was whether the original sentence imposed on Bowtell was manifestly inadequate or excessive. The court was required to examine the sentencing principles, including the principles of proportionality and deterrence, and assess the circumstances of the crime and the offender. The court also needed to consider whether there were any substantial and compelling circumstances that warranted a departure from the original sentence.

The Court of Appeal found that the original sentence was manifestly inadequate, taking into account the heinous nature of the crime and the need for general and specific deterrence. The court held that the sentence failed to adequately reflect the gravity of the offence and the culpability of the offender. The court noted that the appellant had committed a premeditated and brutal murder of his wife, which demonstrated a high degree of moral culpability. The court also considered the need to protect the community and deter similar offences in the future. Based on these considerations, the Court of Appeal ordered that the life sentence be redetermined.

The final orders of the court included the redetermination of the appellant's sentence to a term of imprisonment with a non-parole period of twenty-five years. The court emphasised the importance of ensuring that the sentence reflected the seriousness of the offence and provided adequate deterrence, while also considering the individual circumstances of the offender.

Orders