Sentencing decisions of judges are often commented on by the media. In particular, judges are often criticised for being too lenient on offenders. Judicial independence is a fundamental principle of the rule of law and requires that judges make decisions based on the facts of the case and relevant legislation and that these decision are then written down and published to demonstrate the judge’s reasoning.
The case summary below demonstrates that each case that comes before a judge has a set of specific facts that ought to be taken into account in sentencing. Broad rules about mandatory and minimum sentencing may not take into account the human element and allow judges to make decisions that may best reflect community concerns, rehabilitation and the burden (both monetary and social) of prescribed sentences.
R v Susan Dowdle [2018] NSWSC 240
A recent decision of His Honour Justice Hamill in the Supreme Court of New South Wales, demonstrates the complex issues that the court has to consider when sentencing an offender. His Honour’s decision in R v Susan Dowdle [2018] NSWSC 240 provides a very good summary of the legal issues the court has to take into account and how that fits with the circumstances of the case and the history of the offender.
When sentencing an offender, His Honour started the judgment with the following statements:
This is an intensely sad case … It involves the mercy killing of a son by his mother [1-2]
He outlined how the court has to consider the factors of punishment, deterrence, protection of the community and rehabilitation when going through the process of sentencing a person.
In regard to punishment, His Honour said that the crime of manslaughter is one of the most serious crimes. The law needs to be seen to protect the sanctity of human life and the maximum penalty of 25 years for this offence must therefore be taken into account in sentencing. The sentence must send a message to the community that there is no justification for taking a human life.
The offender, Ms Dowdle, had entered a plea of guilty to the manslaughter of her son, then aged 26 and for whom she was the main caregiver.
The offender’s son had suffered a serious brain injury in a motor vehicle accident in 2008. As a result of that injury he became an alcoholic and took drugs. His personality changed and his behaviour placed a significant burden on his mother.
Evidence at the sentencing hearing indicated that he had frequent altercations with neighbours and the police. The police were usually called twice a week and he was frequently hospitalised due to his substance abuse issues. Further evidence indicated that he was violent towards his mother, would try and choke her, and that she had bruises and other injuries, including cigarette burns on her body.
Ms Dowdle had sought the assistance of drug and alcohol services, counsellors, psychiatrists and psychologists in an attempt to help her son. She tried to arrange for him to enter drug and alcohol programmes and mental health facilities, but, from the evidence provided to the court, it appears that she dealt with her son’s issues on her own.
On the day of the offence Ms Dowdle gave her son an overdose of sedatives, which had been prescribed by a doctor and then asphyxiated him with a plastic bag. She told police that she had wanted to end his pain.
She had her own difficult life history. There was evidence that she had been assaulted as a child and that she had suffered from a significant psychiatric illness in her late teenage years, which required hospitalisation and electroconvulsive therapy. She had married and had two sons. The evidence was that by 2016 Ms Dowdle was medically depressed, due to her pre-existing mental health issues and the exhaustion of caring for her son.
At the time of sentencing Ms Dowdle had spent two years in gaol. She had a minimal criminal record, one offence of mid-range drink driving, and there was nothing in her pre-sentence report that suggested she would offend again. The judge found that she has an excellent chance of rehabilitation and was of good character and she had demonstrated significant remorse. Substantial impairment was argued as part of the offender’s plea, on the basis that she was so impaired by a psychiatric disorder that the charge should be reduced from murder to manslaughter. That plea was accepted by the prosecution and ultimately the court.
His Honour noted, however, that the victim was vulnerable, due to his disability and intoxication, that the offence took place in his own home, where he should have felt safe and that the offender was the victim’s mother and guardian and was therefore morally obliged to protect him.
In all of the circumstances the court found that the only appropriate sentence was a custodial one. Ms Dowdle was sentenced to a three year custodial sentence, with a non-parole period of two years. As she had already served two years in custody, she was released into the community and was to be on parole for a further year.
In his judgment, His Honour reflected on the particular facts of this case and the loss of the person that resulted in these proceedings.
I suspect the person who grieves Digby the most is in fact sitting before me in the dock.[36]
