R v Floyd Leslie DOWLEY

[2009] NSWSC 722

CITATION:	R v Floyd Leslie DOWLEY [2009] NSWSC 722
HEARING DATE(S):	27 March 2009, 22 May 2009
JUDGMENT DATE :	30 July 2009
JUDGMENT OF:	Hidden J
DECISION:	Manslaughter: Imprisonment for 11 years, NPP 7 years, from 24 .11.07. (Deemed) larceny of motor vehicle: FT 12 months from 24.11.07.
CATCHWORDS:	CRIMINAL LAW: - manslaughter - plea of guilty - killing by stabbing of de facto partner - substantial impairment - drug abuse
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act 1990 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
PARTIES:	REGINA (Crown) Floyd Leslie DOWLEY (Offender)
FILE NUMBER(S):	SC 2008/13851
COUNSEL:	P Ingram (Crown) P Pearsall (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Crown) S O'Connor (Legal Aid Commission) (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday 30 July 2009

2008/13851 Floyd Leslie DOWLEY

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Floyd Leslie Dowley, has pleaded guilty to the manslaughter of his partner, Susan Knott, at Berkeley on 24 November 2007. That plea was accepted by the Crown in satisfaction of an indictment for murder. The basis of the plea is substantial impairment by abnormality of mind: s 23A of the Crimes Act 1900. He stands for sentence for that offence. I am also asked to deal with a related offence of deemed larceny of a motor vehicle on a certificate under s 166 of the Criminal Procedure Act 1986. This arises from his taking and driving a vehicle, also at Berkeley, without the consent of its owner: s 154A(1) of the Crimes Act.

Facts

2 At the time of the killing, the offender was 41 years old and Ms Knott was 44. They had been in a relationship for some years. Both of them used illicit drugs, particularly the form of amphetamine known as “ice”, and it seems that he was frequently violent towards her. In 2001 he had been diagnosed as suffering from a mental illness, being a delusional disorder of a paranoid type, and had been prescribed medication. However, some time before the killing he had ceased taking any medication.

3 In October 2007 they moved into a home unit at Berkeley rented by a friend of the offender, Tony Armstrong. In the morning of 24 November 2007, the offender attacked Ms Knott with a serrated edged knife. It was a savage assault. He slit her throat, causing what was described on a post mortem examination as a “complex deep incisional wound across the anterior neck, transecting both carotid and both vertebral arteries, both jugular veins, and transecting the larynx and the cervical spinal cord”. The post mortem examination also disclosed “multiple associated stab wound defects to the left posterior neck consistent with multiple perforating thrusts”, “an extensive complex stab/incised wound of the right scalp with de-scalping injury and a complex lacerated incised wound of the left occipital region”, together with blunt force injuries to the head, face, trunk and limbs consistent with “multiple blunt force contact”. Also detected were incised wounds to the left hand consistent with “defence” injuries. It was the wounds to the neck which were the direct cause of death.

4 During the previous night, Mr Armstrong saw the offender prepare two syringes of ice, one of which he used to inject himself and the other he took to Ms Knott, who was in their bedroom. He also took about twenty alcohol based sterilization wipes, and squeezed the alcohol out of them into a syringe. With this also he injected himself. All three of them then shared two “cones” of cannabis.

5 Mr Armstrong rose at about 7 o’clock the following morning, at which time the offender and Ms Knott were arguing. During the morning a number of other residents in the unit block heard their voices raised in argument. At about 7.45am Mr Armstrong left the unit for a short time to visit the residents in another unit, Mr Kevin Dutton and Ms Nicole Carfray (who is the offender’s cousin). When he returned, he heard Ms Knott screaming. He went to their bedroom, where he saw that Ms Knott was crying. She said, “Look what he has done with a knife, he held it to my throat.” Mr Armstrong saw a small scratch on the front of her neck.

6 Mr Armstrong walked from the bedroom to the lounge room and the offender followed him. The offender said, “Do you know how to clean up and get rid of a body?” Mr Armstrong replied, “You got to be fuckin’ joking.” The offender then winked at him, as if he had been.

7 Mr Armstrong left the unit again to visit another neighbour in the block. Returning to his unit a short time later, he saw the offender in the foyer area. He asked the offender whether things were “right now”, to which the offender replied, “You better go home and clean up the mess on the floor.” Mr Armstrong ran back to his unit, opened the locked front door, and saw Ms Knott lying face down in a pool of blood between the kitchen and the lounge room. He checked for her pulse but could find none. He ran to another neighbour’s unit to raise the alarm, and police were called.

8 In the meantime, the offender had gone to Mr Dutton’s unit. There he said, “I’ve got no more problems now.” Shortly thereafter, outside the unit, he said to Ms Carfray, “I’ve got to go clean up my mess.” She said, “What mess are you talking about?” He said, “I fixed up my problem and now I’m going to fix the next problem.”

9 The offender left the unit block and went to the Unanderra area, where he stole a Toyota Land Cruiser with a trailer attached. This is the offence on the s 166 certificate. In the early afternoon he drove to the home of Mr Paul McGarry at Primbee. He had known Mr McGarry for many years through their previous employment in the commercial fishing industry, but had not been to Mr McGarry’s home for about seven years.

10 Mr McGarry inquired about the Toyota Land Cruiser and trailer, and the offender said that he had stolen them. When Mr McGarry rebuked him for having done so, the offender said, “That’s nothing compared to something else I have done.” Mr McGarry asked, “What are you on about?” The offender slowly moved his thumb from one ear across his throat to the other ear. Mr McGarry said, “What, cut someone’s throat?” The offender said, “Yeah, the missus … I should have done this years ago.” During this conversation Mr McGarry observed that the offender had a smirk on his face, and at the time he did not take what he said seriously.

11 Upon his arrest the offender made further statements about Ms Knott which were both callous and bizarre. After leaving Mr McGarry’s home, he was intercepted by police driving the stolen vehicle in the Figtree area. While he was being searched he made a particularly crude observation about her, questioning her sexuality, which I do not find it necessary to recite. He was taken to Port Kembla Police Station. There an officer confirmed that he understood that he was under arrest for murder. When the officer asked him whom he had murdered, he replied, “Some bloke with tits.” Later, while in the charging dock, he was asked by the custody officer about some blood on his foot. He said, “I cut her.” When asked whose blood it was, he said that it was his own, but a little later he said, “She tried to fraud me …” Later again, he shouted, “No wonder girls are getting raped and stolen.” The custody officer said, “Who did that?” He said, “The poofs.” Asked who were the poofs, he replied, “The bitch I cut the throat of.”

12 In the evening the offender took part in an electronically recorded interview by detectives. The interview was relatively short, largely because he was aggressive and unco-operative. No purpose would be served by examining it in any detail. It is sufficient to say that he made no clear admission of having killed Ms Knott, and the effect of what he said was that he had little recollection of what had occurred. When asked if he knew why he had been arrested, he said, “Somebody told me I murdered somebody.” Asked if he knew anything about that, he said that he had “slow flashbacks”. He said that he remembered blood hitting the floor, but did not know when that occurred or whose blood it was. Asked if it was Susan’s blood, he said, “maybe”, but then said that he did not know who Susan was.

13 After this series of questions, he said, “Oh, I’m flyin’ on gas, mate, I dunno what I’m fucken saying, so it’s a waste of time me even answerin’ any questions, I’ve been that fucked on the crystal meth for the last week and a half, I dunno what I’m fucken doing.” Other answers to the detectives’ questions were unresponsive and suggestive of disordered thought.

14 In 2008 the offender was interviewed in custody by two well known forensic psychiatrists, Dr Olav Nielssen and Dr Bruce Westmore. I shall turn to their reports shortly. To those doctors also he claimed to have little memory of the killing. In the result, it can be said that the offence appears to have been preceded by his arguing with Ms Knott, and it is clear that what he did was the product of an abnormal state of mind and, no doubt, the ingestion of ice. However, the circumstances of this ferocious attack are otherwise unexplained.

Victim impact statements

15 I received victim impact statements from two daughters of the deceased, Sarah Knott and Katie Cardamone. Both of them express, simply but eloquently, the effect on them of the senseless and violent death of their mother. Ms Cardamone’s statement also explains the emotional effect of this tragedy upon her son, the deceased’s grandchild. Sarah Knott read her statement to the Court. That can not have been an easy task and she was obviously, and understandably, deeply distressed. To both those ladies, to other members of Susan Knott’s family, and to all those affected by her untimely death I express my deepest sympathy.

Subjective case

16 The offender has a disturbing criminal history. There are a number of entries for offences of violence, including common assault and assault occasioning actual bodily harm. I have been supplied with statements of facts in relation to the most significant of those entries, arising from seven incidents which occurred between 2001 and 2007. It is sufficient to refer to these in summary form.

17 In the first incident, occurring in March 2001, the offender assaulted his mother, his estranged wife, Joanne Dowley, their infant child and his uncle. A considerable level of violence was involved, particularly directed to his mother. The second and fifth incidents, occurring in March 2001 and February 2005, involved assaults upon men who, apparently, were strangers to him at a shopping centre. There does not seem to be any rational explanation for his behaviour on any of these occasions, although at the time of the first incident he was intoxicated.

18 The third incident, occurring in November 2002, was bizarre. The offender went to the home of two brothers who were known to him. He accused them of having stolen his kidneys and liver while he was asleep. He seized a bow and arrow belonging to one of the brothers and fired arrows at both of them. In the fourth incident, in December 2002, he broke into his mother’s home, in breach of an apprehended violence order. The sixth and seventh incidents, in January and March 2007 respectively, were assaults by way of threatened or actual violence upon the deceased, Susan Knott. There does not seem to be any rational explanation for these assaults either.

19 Charges arising from the first, second and seventh incidents were dealt with in the ordinary course, resulting in a non-custodial order, a short term of imprisonment and a fine respectively. Charges arising from the other four incidents were dismissed under s 32 of the Mental Health (Criminal Procedure) Act 1990 (as it was then known).

20 I was also supplied with police records of two complaints against the offender by his estranged wife, which she did wish to be pursued by prosecution. In the first, occurring in November 1999, he struck her after an argument. The second, in January 2001, involved an assault upon her by the offender’s sister, Ms Debbie Scerri, which he encouraged.

21 The offender has some earlier criminal history, in the later 1980s and sporadically through the 1990s, for offences which for the most part are considerably less serious. It is the history from 2001 which is troubling. The explanation for these later offences is to be found in his personal circumstances and, in particular, in the onset of his mental illness and his drug abuse. That material emerges from the psychiatric reports of Dr Nielssen and Dr Westmore, together with the evidence of his sister, Ms Scerri. The allegation that she assaulted his wife, Joanne was not raised with her in evidence. Whatever might be the truth of that matter, I must say that I found her an impressive witness. She presented as a person who cared deeply for her brother but whose account, nevertheless, was frank and realistic.

22 Notwithstanding his brushes with the law before 2001, his earlier life appears to have been stable enough. One of four children, he was brought up in the Port Kembla area. He did not fare well at school and left before he turned 15. Dr Nielssen assessed his intelligence to be “in the lower part of the normal range”. Nevertheless, he was gainfully employed until the year 2000, although he did not work thereafter.

23 In his early 20s he married Joanne, and they had four sons. For a time the relationship was a good one. His sister said that in these earlier years he was a popular and generous person, who had many friends. Although he had used marijuana since his mid teens, he was opposed to the use of harder drugs and, indeed, tried to dissuade his younger brother from doing so.

24 He was affected by the death of his father from a heart attack in 1990. Ms Scerri observed him to become withdrawn and to be frequently depressed. Nevertheless, the marriage endured and he continued in employment. For a period he went with the family to Queensland where he worked as the caretaker of a farm. He appeared to enjoy his time there but, eventually, he began to express paranoid delusional thoughts in telephone conversations with Ms Scerri. He told her that he believed that people were going to kill him and his family and that, when his wife and children were sleeping in the caravan in which they were housed, he would climb a tree above the caravan to keep watch on them. The relationship with his wife was deteriorating, they fought and sometimes he treated her violently.

25 They separated in 2000, and his sister observed a marked deterioration in him. As she put it, he “just went downhill really bad,” was generally depressed and neglecting himself. It was at this time that he took to the abuse of ice and became dependent on it. In the ensuing years he also used heroin on occasions, but it appears that he did not become dependent on that drug. His cannabis use continued.

26 As I have said, it was in 2001 that he was first diagnosed as suffering from mental illness and placed on medication. This was during a period that he was in custody. In the following year, while again in custody, he was found by Dr Stephen Allnutt, another well known forensic psychiatrist, to be suffering from schizophrenia. Dr Allnutt noted a history of persecutory delusions, and he observed delusions of the same kind during his consultation with him. He recommended that the offender refrain from drug and alcohol, continue to take anti-psychotic medication, and undergo follow-up psychiatric treatment upon his release.

27 That was the period of custody arising from the third and fourth of the incidents of violence to which I have referred. Upon his release in early 2003 until the later part of 2005, the offender’s treatment was supervised by the Illawarra Area Health Service. During that period he attended regularly to receive medication, and it seems that he generally stayed out of trouble and, at least at times, refrained from drug abuse. That said, he accepted the regime of medication reluctantly and sometimes complained that it made him feel “like a zombie” and that it was doing nothing for him.

28 After that period he was to receive his medication from his general practitioner. The extent to which he did so is not clear from the material before me, but what is established is that he did not take his medication for about four months before he killed Ms Knott. In the weeks leading up to the killing, Mr Armstrong observed a change in his demeanour. He described him as becoming “more cantankerous and aggressive” towards Ms Knott and “more paranoid”, expressing fears that she was having affairs with other people. When Mr Armstrong urged him to obtain his medication, he took offence and said that it stopped “the effect of the crystal from working”. The reference to “crystal”, of course, was to crystal methamphetamine or ice. He told Dr Nielssen and Dr Westmore that, while he could not remember how much of the drug he had used on the day of the offence, he had been taking four or five “shots” of 0.1 grams per day.

29 He has been in custody since his arrest that day, 24 November 2007. Upon his admission to prison he was found to be psychotic, giving what was described as a “disorganised and irrelevant” account of the circumstances leading to his arrest and expressing a variety of other delusional beliefs of a paranoid kind. He underwent treatment over the ensuing months, including admission to the psychiatric ward of the prison hospital. He has since been on a regime of medication, and more recently he has been undergoing drug and alcohol counselling.

30 After a consultation with him in June 2008, Dr Nielssen diagnosed him as suffering from schizophrenia, the alternative diagnosis being amphetamine induced psychotic illness, and substance abuse disorder. In his report the doctor expressed his conclusion that he was “probably acutely mentally ill at the time of the offence, notwithstanding the effect of any additional amphetamine taken on the day of the offence”. He saw that psychotic state as likely to have affected his perception of events, his ability to judge right from wrong, and his capacity to control his actions. He noted that the offender remained “acutely psychotic” for months after his arrest and recovered only after a period of consistent treatment by medication. During that period of psychosis he had demonstrated “abnormal irritability and aggressiveness”, but this had not been apparent since his response to treatment.

31 After a consultation in November 2008, Dr Westmore’s conclusions were much the same as those of Dr Nielssen. In his report the doctor expressed his finding in this way:

The disinhibiting effects of the drugs he consumed and his mental illness are all likely to have played a role in the offending behaviour. Because he was acutely mentally ill, I believe that he was suffering from an abnormality of mind which would have compromised him and his ability to understand that what he was doing was wrong in relation to the deceased or care, from a moral perspective, and his capacity to control his actions would also have been compromised.

In a report of March of this year, Dr Westmore expressed the opinion that the drugs which the offender had taken would have engendered “a state of disinhibition”, ice being associated with “poor judgment, impulsiveness and aggressive behaviour”. However, he concluded that the offence occurred “principally because of his mental illness which was precipitated and/or aggravated by his use of the illicit drugs”.

32 I should note that, in providing a history to both doctors, the offender claimed to have a memory that before the killing Ms Knott had approached him carrying a knife from the kitchen. Realistically, his counsel did not rely upon this as a matter in mitigation of sentence and I find it unnecessary to make any finding about it. Even if she had done so, it would provide no explanation, let alone justification, for the ferocity of his attack upon her.

33 Ms Scerri gave evidence that, during her visits to him in prison, he maintained that he had no memory of what he had done but acknowledged that it was bad and that he would have to pay for it. He also appeared to her to realise that drugs had destroyed his life and that he had to stay off them upon his release. She said that, upon his return to the community, she would do everything she could to help him.

34 Obviously, an important question is whether he might pose a danger to the community upon his release. Dr Westmore expressed a view about this in his more recent report, with which Dr Nielssen agreed in a further report. As one would expect, this turns upon his compliance with anti-psychotic medication and abstinence from illicit drugs. Dr Westmore put it this way:

The history indicates that Mr Dowley has demonstrated extremely disturbed behaviour in the context of illicit drug use and his mental illness. If at any time he returns to any form of illicit drug use or he redevelops acute symptoms of his mental illness, then his potential risk to the community, in view of his previous history, should be considered to be high. Obviously much will depend on what specific symptoms he develops but the presence of paranoid symptoms will be particularly important and relevant to the issue of future dangerousness.

Sentencing

35 I have not found this an easy sentencing exercise. The offence is clearly a serious one. This was a brutal killing, perpetrated by the use of a knife. I have referred to blunt force injuries observed on post mortem examination which, presumably, were inflicted at the same time. However, it is not clear how these were occasioned. The inference that the offender intended to kill Ms Knott is irresistible, and his counsel put no argument to the contrary.

36 That said, it is clear that the offence was to a large extent the product of acute psychosis. The opinions of both psychiatrists are supported by the very ferocity of the attack, the offender’s curious and irrational behaviour on the day of the killing up to and after his arrest, and the obvious hallmarks of mental illness observed after his entry into prison custody. While neither Dr Westmore nor Dr Nielssen in their recent reports were prepared to assign the degree of his mental impairment to a position within a notional scale, I am satisfied that it was considerable. This, of course, is relevant to the assessment of the offender’s culpability and the need for the sentence which I pass to reflect considerations of deterrence.

37 Nevertheless, as the Crown prosecutor pointed out in submissions, the case highlights the tension which can arise in matters of this kind between general and personal deterrence: between the leniency which mental illness might afford an offender, on the one hand, and the legitimate function of sentencing in protecting the community, on the other. He referred to the offender’s criminal history and noted, correctly, that it should have alerted him to the risk of violent behaviour if he neglected prescription medication and used illicit drugs. Moreover, the Crown prosecutor submitted, despite his compliance with a regime of medication while in custody, one could not be confident that that risk would not come home upon his release into the community.

38 These are arguments of substance, and I have given them careful consideration. Nevertheless, I am satisfied that the offender’s culpability for the crime is significantly reduced by his abnormal mental state. I am guarded about his prospects of rehabilitation, but Ms Scerri’s evidence discloses that he has some insight into the gravity of his behaviour and the reasons for it. Between 2003 and 2005 he demonstrated a capacity to maintain a program of supervised treatment. I entertain some hope that when he is returned to the community, with his sister’s support and under appropriate supervision, he will not re-offend. Obviously, parole supervision would be directed primarily to his compliance with psychiatric treatment and abstinence from illicit drugs. He could be in no doubt that any failure in that respect would be likely to see his return to custody.

39 In these observations I have dealt with what I see as the relevant aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that there are special circumstances warranting a departure from the statutory proportion between sentence and non-parole period, affording the offender the opportunity of release for a lengthy period under supervision and the sanction of parole. This would serve the interests of the community by fostering his rehabilitation.

40 Nevertheless, I am mindful of the need for the non-parole period to reflect the gravity of his crime and an appropriate measure of retribution for it. He pleaded guilty to manslaughter upon his arraignment in this Court, and had indicated his willingness to do so before he was committed for trial for murder. I shall recognise the utilitarian value of that plea by a 15 % reduction of the sentence which would otherwise have been called for.

41 That sentence, in my view, would be imprisonment for 13 years. The result of a 15 % reduction, in round figures, is 11 years. In association with that sentence I shall fix a non-parole period of 7 years. For the offence of deemed larceny of a motor vehicle, I shall pass a wholly concurrent sentence for a fixed term of 12 months. I shall not specify a non-parole period in respect of that sentence because it will be subsumed within the non-parole period for the manslaughter.

42 Floyd Leslie Dowley, for the manslaughter of Susan Knott you are sentenced to imprisonment for a non-parole period of 7 years, commencing on 24 November 2007 and expiring on 23 November 2014, and a balance of term of 4 years, commencing on 24 November 2014 and expiring on 23 November 2018. For the offence of deemed larceny of a motor vehicle, you are sentenced to imprisonment for a fixed term of 12 months, also commencing on 24 November 2007.

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