R v Jonathan Lowe

[2009] NSWDC 329

CITATION:	R v Jonathan LOWE [2009] NSWDC 329
HEARING DATE(S):	3 December 2009
JUDGMENT DATE:	4 December 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	Sentence - manslaughter - unlawful and dangerous act - death of parent caused by explosive device constructed by son.
PARTIES:	The Crown Jonathan LOWE
FILE NUMBER(S):	2009/6272
COUNSEL:	Mr Everson of Counsel for the Crown Mr Wendler of Counsel for the Offender
SOLICITORS:	NSW Director of Public Prosecutions Van Houten Law

The Proceedings

1 On 21 September 2009, the offender and the co-accused Ashley Wright pleaded not guilty to the manslaughter of the offender's father, Lionel Barry Lowe (the deceased). The Crown relied on the unlawful and dangerous act of manufacturing an improvised explosive device (IED) that contained triacetonetriperoxide (TATP).

2 The offender and the co-accused sought a stay of proceedings, arguing that the Crown could not prove that their acts "caused" the death of the deceased. The application was refused and the trial proceeded. After the evidence in chief of the Crown's first witness (the offender's mother), the offender entered a plea of guilty. The co-accused is to be tried next week.

3 The maximum available penalty is 25 years imprisonment.

4 Following his arrest on 23 July 2008, the offender remained in custody until 9 June 2009, when he was bailed to attend ONE80TC, a full-time, abstinence-based residential rehabilitation program run by a Christian group. In relation to a sentence for supplying a prohibited drug, parole was revoked and the offender served the balance of parole, which expired on 10 January 2009. From 10 January 2009 to 9 June 2009, he was in custody in relation to the manslaughter matter only. If the offender continues in the ONE80TC program, he will probably complete the program in late 2010.

5 On 22 October 2008, the offender participated in an electronically recorded interview. On 17 November 2009, he provided a statement to the police. He has undertaken to give evidence in the trial of the co-accused. The Crown concedes that the undertaking is of considerable and substantial assistance. In the trial of the co-accused, the Crown will rely upon an admission by the co-accused that he constructed an explosive device at the offender's flat. However, the Crown case will depend upon the evidence of the offender to explain the surrounding circumstances.

6 The offender had hoped to run his trial before a judge alone. The offender would have consented to the tender of the statements of Crown witnesses, requiring only the expert witnesses for cross-examination. He would have argued that there was inadequate evidence of causation. However, the co-accused did not consent to a trial by judge alone. The offender’s approach to defending the matter and his ultimate plea of guilty demonstrate a high level of contrition.

The Facts

7 The offender's mother, one of the offender’s sisters and the deceased lived in the main house on a five-acre property at Dural. The deceased had a doctorate in agronomy and had worked in the field of animal health research. He was semi-retired. His hobby was collecting vintage firearms. In connection with that hobby, he used black gunpowder.

8 In May 2008, the offender lived in a detached flat on the Dural property. He was 22 years old. He was drug dependent. At that time, his drug of choice was ice. The co-accused was also drug dependent. The co-accused and the offender had a drug-using relationship.

9 The co-accused showed the offender some white crystal. He demonstrated the explosive qualities of the substance. He warned the offender to be careful when moving the substance. The offender showed the white crystal to his drug supplier, who asked whether the offender could acquire a detonator. The offender referred the enquiry to the co-accused, who said that he knew how to make a detonator. The offender’s drug supplier agreed to pay $3000 for an IED. In evidence, the offender said that his drug supplier also agreed to reduce the offender’s drug debt if he could produce the device. The offender’s drug supplier advanced the sum of $1000. He said that he “was having problems with his associates”. He wanted a device "for" a small room (statement of 17 November 2009, para 13). The offender "(didn't exactly know) what it was for", but he thought that it was "for a business deal" (ERISP Q525).

10 Under the co-accused’s direction, the offender and the co-accused acquired the necessary ingredients. With the offender’s assistance, the co-accused manufactured TATP and constructed the IED at the offender’s flat. The process occupied a couple of weeks. A mobile telephone was used to make the detonator, which was taped to the side of a cylinder containing TATP. The offender knew that the IED was designed to explode and was capable of killing a person who was standing next to it (ERISP, Q524, 525).

11 The offender gave evidence that the deceased came upon the offender and the co-accused when they were testing the TATP. The deceased told them to "be careful".

12 The IED was delivered to the purchaser, who paid the outstanding $2000. The offender and the co-accused used the money to purchase drugs. The offender’s drug supplier contacted the offender and said that he had no immediate use for the IED. The offender collected the device and placed it outside his flat.

13 The deceased found the device and realised that it was an IED. He confronted the offender. The deceased said that he would "take care of it". The deceased was motivated by a sense of obligation to protect his son and prevent him from injuring himself or others. The offender and the deceased believed that the deceased had the scientific knowledge that was necessary to safely dispose of the IED.

14 Two or three days later, on 19 May 2008, the IED exploded, fatally injuring the deceased. It is likely that the explosion occurred when the deceased was holding the IED in his right hand and was attempting to disarm the device. The deceased may have been attempting to remove the taped section of the IED. It is likely that some action of the deceased caused the TATP to detonate. Unlike most high explosives (which require a detonating charge to initiate an explosion), TATP is highly volatile. If subjected to relatively minor impact or friction, it may explode in the absence of a detonating charge (statement of Mr Baker).

Objective Seriousness of the Offence

15 Objectively, the unlawful and dangerous act was very serious. It involved the manufacture of an explosive device for profit. The process of manufacture occupied several weeks. The offender lacked the wherewithal to construct the device, but he organised the sale of the device and assisted the co-accused to construct it. At the time when the device was manufactured, the offender did not know the way in which it might be used, but he was well aware that the device was potentially lethal.

16 On the other hand, the causal connection between the unlawful and dangerous act and the death of the deceased was indirect. The offender’s unlawful and dangerous act was not aimed at the deceased, with whom the offender enjoyed a close -- albeit problematic -- relationship. At the time that the IED was manufactured, it would have been difficult to foresee events unfolding as they did. There was a gap of days or weeks between the manufacture of the IED and the deceased's death. By his plea, the offender conceded that his conduct was a substantial cause of the deceased's death. However, the deceased substantially contributed to his own death. The deceased had seen the offender and the co-accused experimenting with TATP. He was a scientist and he was well acquainted with vintage firearms and gunpowder. It is very likely that the deceased realised that, by attempting to dismantle the IED, he was undertaking a dangerous task.

17 The Crown submited that the offence lies somewhere in the midrange of objective seriousness. On behalf of the offender, it was submitted that the offence lies towards the lower end of the midrange.

18 The facts of the offence are unique. It is difficult to draw an analogy with any other type of manslaughter offence. The offender's moral culpability for the unlawful and dangerous act is high, but his moral culpability for the deceased's death is not. I accept that the objective seriousness of the offence lies towards the lower end of the midrange.

The Offender’s Personal Circumstances

19 The offender comes from a stable and supportive family. He is one of five children. He had a difficult childhood. He manifested problems with concentration and disruptive behaviour. He performed badly at school. The offender suffered from attention deficit hyperactivity disorder, but the disorder was not diagnosed until the offender was 16 years old. Following the diagnosis, the offender was placed on medication. He was relatively stable for a couple of years, during which time he had full-time employment.

20 The offender has a long history of polysubstance abuse. When he was in Year 6, he began to use cannabis. In Years 7 and 8, he was a regular user of cannabis. When he was about 15 years old, he progressed to using amphetamines, then to ecstasy and ice.

21 The offender suffers from chronic depression and anxiety, and impaired cognitive functioning. As a result of ADHD and chronic substance abuse, his memory, ability to absorb new information and ability to process information are significantly compromised (Exhibit 1, reports of Professor Woods).

22 Since commencing the residential rehabilitation Program, the offender’s "global functioning" has improved significantly. Because of his cognitive impairment, the offender is moving through the Program at a relatively slow rate. However, his caseworker observed that the Program seems to be tailor-made for the offender. The offender is the first student whom the caseworker has known to progress through the Program without committing any breach of house rules. The offender has become a student leader, a role model for other students. He has become a Christian. He is committed to exploring the issues that resulted in drug addiction and the guilt associated with causing the deceased's death. He is determined to "plug away". He is motivated to "honour" the deceased by fulfilling the deceased's wishes that he "grow up" and "get (his) life together". Professor Woods considers that it is critical that the offender complete the Program as it is "putting him back together as a person such that he can become a productive member of the community".

23 For the first time in many years, the offender is caring and interested in his family and the future. He would like to become a caseworker with the Program. Alternatively, his cousin is prepared to employ him as a floor sander.

24 The offender's family have lost a beloved husband and father. The Court acknowledges that loss. Paradoxically, a consequence of the family’s loss is that it is regaining a son and brother. The family’s emotions must be in conflict. The family is to be admired for its commitment to supporting the offender: a decision to stifle regret and build on hope.

Crimes (Sentencing Procedure) Act 1999

25 In sentencing the offender, I have regard to the sentencing purposes in section 3A the Crimes (Sentencing Procedure) Act 1999. The sentence must involve adequate punishment. In my view, the offender’s cognitive impairment does not render him an inappropriate vehicle for conveying a message of general deterrence in relation to the manufacture of explosive devices. Events of the past decade have made plain the damage that such devices may cause. The community abhors any involvement with their manufacture. As a life has been lost, accountability and denunciation are important sentencing objectives. For the future protection of the community, it is very important to promote the offender’s rehabilitation.

26 The relevant aggravating features under section 21A (2) are (ca) (actual or threatened use of explosives), (eb) (the offence occurred at the victim's home), (j) (the offender was on conditional liberty), (n) (as to the element of unlawful act, the offence was planned) and (o) (as to the element of unlawful act, the offence was committed for financial gain). The relevant mitigating factors under s21A (3) are (h) (the offender has good prospects of rehabilitation), (i) (remorse), (k) (plea of guilty), (l) (pre-trial disclosure in that the offender largely conceded the Crown facts) and (m) (assistance provided by way of the undertaking to give evidence at the trial of the co-accused).

27 In considering the value of the undertaking, I have had regard to the matters set out in s 23 (2). The assistance is of substantial use. The information provided by the offender is timely, truthful, reliable and reasonably complete. Provided that he completes the Program and is subject to supervision for a long period, it is unlikely that the offender will commit further offences. I note that assistance must not result in the imposition of an unreasonably disproportionate penalty: s 23 (3).

Approach to Sentence

28 The starting point for the sentence is five to six years full-time imprisonment. The appropriate discount for the plea of guilty and s 23 assistance is one third. An appropriate sentence would be a non-parole period of two years and a balance of term of one year and nine months. From the non-parole period, the Court would deduct the period of five months full-time imprisonment served from January to June 2009 and half the period on the Program (while on the Program, the offender has been denied his liberty).

29 The Court accepts that it is critical that the offender complete the Program. If he fails to do so, it is very likely that the offender will relapse into drug dependency and criminal activity, and very unlikely that he and his family will ever come to terms with the events that have befallen them.

30 I find the offender guilty of the offence. Pursuant to s 11 of the Act, the proceedings are adjourned to a date to be specified and bail is granted for the purpose of allowing the offender to demonstrate that rehabilitation has taken place. If the offender continues to participate well in the Program, the proceedings will be further adjourned for the maximum period allowed under s 11. I will then impose a periodic detention order. If the offender fails to participate well in the Program, it is highly likely that I will impose a sentence of full-time imprisonment.