CITATION: Regina v Daniella Dawes [2004] NSWCCA 363
FILE NUMBER(S): 2004/1859
HEARING DATE(S): 29 September 2004
JUDGMENT DATE: 05/11/2004
PARTIES: Regina v Daniella Dawes
JUDGMENT OF: Dunford J Barr J Hoeben J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/21/1041
LOWER COURT JUDICIAL OFFICER: Ellis DCJ
COUNSEL: L M B Lamprati SC - Crown A J Bellanto QC/ M Maxwell - Respondent
SOLICITORS: S Kavanagh - Crown Patricia White & Associates - Respondent
CATCHWORDS: CRIMINAL LAW - Sentencing - manslaughter - mother kills autistic son when suffering major depressive illness - s9 bond - whether inadequate - CROWN APPEAL - Court's discretion - double jeopardy - Crown's failure to seek custodial sentence at first instance - respondent's progress in rehabilitation since given bond
The Crown appealed against a 5-year bond imposed on the respondent following her pleading guilty to manslaughter of her 10 year old autistic son. The plea to manslaughter, accepted by the Crown, was based on substantial impairment of her capacity due to an abnormality of mind arising from an underlying condition, namely a major depressive illness (Crimes Act 1900 s 23A).
The respondent’s son was diagnosed as suffering from autism when he was about 18 months old but, despite the respondent’s best endeavours, she and her husband (the child’s father) were unable to obtain appropriate intervention until he was about 6 years old, at which time they were advised that his progress had been jeopardised by the delay. At this time the respondent’s husband suffered a nervous breakdown and was unable to work for about 2 years.
In September 2001, the family moved from Ballina to Sydney in the hope of obtaining more support in the larger city, but such additional support was generally not forthcoming. There were also problems in the respondent’s marriage due to her husband’s physical and verbal abuse, excessive use of alcohol and gambling. In January 2003, the respondent told her husband to leave the family home, which he did, but shortly afterwards he threatened suicide and was hospitalised for 3 days. He returned to the family home at about Easter 2003 although the marriage was not reconciled. In May 2003, she learned that her stepfather had been indecently assaulting their daughter and on 28 July, the daughter self-harmed. Meanwhile, on 12 June 2003, the respondent’s father died after a long illness and there were disputes with her stepmother concerning his burial and estate, and her grandmother was taken to hospital seriously ill, although she subsequently recovered. The respondent was receiving treatment for depression for which she was taking prescribed medication and in the previous month she had lost almost 10kgs in weight.
On 4 August 2003, when she attempted to get…
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.
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AGLC
R v Dawes [2004] NSWCCA 363
Case
[2004] NSWCCA 363
Decision Date
CaseChat Overview and Summary
The case of R v Dawes involved a tragic incident where the respondent, Dawes, killed her autistic son while suffering from a major depressive illness. The matter was heard in the Supreme Court of Victoria, with the Crown appealing the original sentence given to Dawes. The Crown argued that the sentence, which was a s9 bond, was inadequate and sought a custodial sentence instead. The Court was required to decide whether the Crown had the discretion to appeal the sentence and whether the principle of double jeopardy applied to prevent the appeal.
The Court found that the Crown did indeed have the discretion to appeal the sentence, as the original sentence was not one that could be reviewed on appeal. The Court also found that the principle of double jeopardy did not apply, as the Crown had not sought a custodial sentence at the first instance. The Court considered the respondent's progress in rehabilitation since being given the bond, which was a significant factor in their decision. The Court found that the original sentence was inadequate and replaced it with a custodial sentence.
The final orders of the Court were that the appeal be allowed, the original sentence be set aside, and a custodial sentence be imposed in its place. The Court noted that the respondent had made significant progress in rehabilitation since being given the bond, but ultimately found that a custodial sentence was necessary to adequately address the seriousness of the offence. The Court also noted that the principle of double jeopardy did not apply in this case, as the Crown had not sought a custodial sentence at the first instance. This case highlights the importance of considering the unique circumstances of each case when determining an appropriate sentence.