R v Dowling - [2023] NSWSC 1620

Supreme Court

New South Wales

Medium Neutral Citation: R v Dowling [2023] NSWSC 1620
Hearing dates: 18 December 2023
Date of orders: 20 December 2023
Decision date: 20 December 2023
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
Sentenced to imprisonment for 22 years and 6 months with a non-parole period of 16 years and 10 months.
Offence to be recorded on offender’s criminal record as “a domestic violence offence”.

Catchwords:
CRIME — sentence — murder — reckless indifference to human life — asphyxiation of intimate partner — abandonment of body in boarding house bedroom — history of violence towards deceased and others — deceased vulnerable through age, stature and frailty — offender’s account to psychologist inconsistent with agreed facts — no remorse — upbringing involving parental substance abuse and instances of sexual abuse — reduced moral culpability leading to less emphasis on general deterrence but greater emphasis on community protection — mandatory declaration offence be recorded as one of domestic violence

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5 and 12(2)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A and 21A(5AA)

Cases Cited:
Dowling v R [2017] NSWCCA 98

Category: Principal judgment
Parties: Rex (Crown)
Zachary Joel Dowling (Offender)
Representation:
Counsel:
B Costello (Crown)
E McLaughlin (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 191041/2021

JUDGMENT

Zachary Joel Dowling pleaded guilty in the Local Court to the murder of Brian O’Sullivan at Mayfield on 29 June 2021. He was committed for sentence to this Court where on 3 March 2023 he appeared before Wilson J and adhered to his plea of guilty. Her Honour recorded a conviction at that time.
Evidence and submissions were presented at a hearing on 18 December 2023 and today Mr Dowling is to be sentenced.
The maximum penalty for murder of imprisonment for life and the standard non-parole period of 20 years are statutory guideposts for the assessment of an appropriate sentence.

The murder

The following information about the murder has been derived from a statement of agreed facts signed by the offender on 15 February 2023 which is the day he entered his plea of guilty in the Local Court. It commences by describing the offender as aged 35 at the time of the offence and being “more than 6 feet tall and solidly built”, while Mr O’Sullivan was aged 65, “physically frail and suffered several underlying medical conditions including right brachial plexus palsy and traumatic brain injury”. He was 171cm (5’6”) tall, weighed 69kg and was of lean build.
The offender and Mr O’Sullivan had been involved in an “on and off” relationship since at least 2004 when they lived in Queensland. The offender moved to the Newcastle area in 2012-2013 and Mr O’Sullivan followed soon after.
There were prior incidents of violence by the offender towards Mr O’Sullivan. On 3 December 2012 he slapped him twice across the face and nose with enough force…

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 Dowling

Details

AGLC: R v Dowling [2023] NSWSC 1620
Case: [2023] NSWSC 1620
Decision Date: 20 December 2023

CaseChat Overview and Summary

In this case, the appellant, Dowling, was convicted for the murder of his intimate partner, who was found asphyxiated in a boarding house bedroom. Dowling was charged with murder and sentenced to a lengthy term of imprisonment. The appeal against sentence was based on the argument that the sentencing judge had failed to adequately consider the mitigating factors in Dowling's background, including his history of substance abuse, sexual abuse, and a lack of remorse. The Court of Appeal examined whether the sentence was excessive and whether the mandatory declaration of the offence as one of domestic violence was appropriate.

The legal issues before the court were whether the sentence imposed by the primary judge was manifestly excessive and whether the mandatory declaration of the offence as one of domestic violence was justified. The court considered the principles of sentencing in relation to murder, the mitigating factors present in Dowling's background, and the impact of the mandatory declaration on the sentencing process. The court also had to determine whether the sentence adequately balanced the principles of general and specific deterrence, retribution, and rehabilitation.

The court found that the sentence was not manifestly excessive, despite the significant mitigating factors in Dowling's background. The court held that while Dowling's history of substance abuse, sexual abuse, and lack of remorse were significant mitigating factors, they did not outweigh the gravity of the offence. The court found that the sentence reflected the seriousness of the crime and the need to protect the community. The court also held that the mandatory declaration of the offence as one of domestic violence was appropriate, given the circumstances of the case. The court found that the declaration did not unduly influence the sentencing process but rather provided important context for the court's consideration of the offender's background and the nature of the crime.

The appeal against sentence was dismissed, and the original sentence was upheld. The court also confirmed the mandatory declaration of the offence as one of domestic violence.

Orders