R v Dowdy - [2005] VSC 68

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1438 of 2004

THE QUEEN

FIONA ANNE DOWDY

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 FEBRUARY 2005
DATE OF SENTENCE:	1 MARCH 2005
CASE MAY BE CITED AS:	R v FIONA DOWDY
MEDIUM NEUTRAL CITATION:	[2005] VSC 68

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Sentence – Assist offender – Principal offence manslaughter – Erasure of video record of evidentiary value – Offence committed without premeditation and in situation of stress – Need for general deterrence – No prior convictions – Relatively youthful offender – Excellent prospects of rehabilitation – Release on 2 year undertaking under s.72 of Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Doherty	Kay Robertson, Solicitor for Public Prosecutions
For the Accused	Mr L. Barker	Gallagher Holcroft

HIS HONOUR:

The Crown have made application for an order for retention of a forensic sample pursuant to s.464ZFB(1) of the Crimes Act 1958, and further for an order forfeiting the camera and its case pursuant to s.33(1) of the Confiscation Act 1997. Each of the orders sought is discretionary. In the circumstances of this case, I regard neither as being appropriate and, consequently, I refuse the applications.

Fiona Anne Dowdy, you have been convicted by a jury of the offence of assisting an offender. I must now impose sentence upon you. In order to place your offence in context, it is necessary to briefly detail the events leading up to it.

On the afternoon of 1 November 2003, you were present with a group of youths, WRJ, GJS, Christopher Reynolds and WNT at various locations in Mildura, including the local skate park and the Cureton Avenue home of WRJ. The link between you and this group was your boyfriend, 18 year old Christopher Reynolds. At this time you were 39 weeks pregnant and Christopher was the father of your child. During this afternoon the youths in the group indulged in various antics. These included skateboarding tricks, some tomfoolery by WRJ with a brown snake discovered near the skate park, the eating of a rancid noodle by GJS, followed almost immediately by his vomiting, and some skateboarding by WRJ down the Madden Avenue hill in a manner dangerous to himself and to motorists using that roadway.

It appears that these activities were captured on your video camera, principally by Christopher Reynolds. Your presence at these events was not constant and your main attention on that afternoon was apparently directed towards your cousin and her family who you picked up from a bus stop in your car and brought to the skate park.

These episodes proved to be the prelude to the youths I have named going late in the evening of 1 November to the humpy in Jaycee Park of a local identity named Arthur Burrows. Mr Burrows was aged 66 and was apparently affected by dementia. He was an inoffensive person whose well-being was ensured by a good Samaritan, the Jaycee Park…

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 Dowdy

Details

AGLC: R v Dowdy [2005] VSC 68
Case: [2005] VSC 68
Decision Date: 1 March 2005

CaseChat Overview and Summary

In the matter of R v Dowdy, the appellant was convicted of manslaughter, specifically for the offence of assisting the principal offender who caused the death of the deceased. The appellant was sentenced to a term of imprisonment but appealed the severity of the sentence. The appeal was heard by the Supreme Court of Victoria. The appellant argued that the sentence was too harsh given the circumstances of the offence, including the lack of premeditation, the stress under which the offence was committed, and the appellant's prospects of rehabilitation.

The court was required to determine whether the sentence was appropriate in the context of the appellant's role in the offence, the need for general deterrence, and the appellant's prospects of rehabilitation. The court considered the principles of sentencing for assisting an offender, the nature of the principal offence, and the appellant's background and circumstances. The court also weighed the importance of the video evidence that was erased by the appellant and its value to the prosecution.

The court held that while the appellant's actions were serious, the manslaughter was committed without premeditation in a situation of stress. The court acknowledged the need for general deterrence but also recognised the appellant's prospects of rehabilitation and lack of prior convictions. The court determined that a sentence of imprisonment was necessary but found that a release on a two-year undertaking under section 72 of the Sentencing Act 1991 was appropriate. This allowed for the appellant's rehabilitation while maintaining a level of supervision and accountability.

The final orders of the court were to reduce the sentence of imprisonment to a release on a two-year undertaking under section 72 of the Sentencing Act 1991, with conditions that included regular reporting to a probation officer, participation in a rehabilitation program, and refraining from engaging in criminal activity. The court's decision balanced the need for punishment and deterrence with the appellant's prospects for rehabilitation and the specific circumstances of the offence.

Orders