New South Wales Supreme Court CITATION : R v Bowtell [2000] NSWSC 803 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC L00018/1996 HEARING DATE(S) : 03/03/2000 JUDGMENT DATE : 21 August 2000 PARTIES : Sidney Justin Bowtell (applicant) Regina (respondent) JUDGMENT OF : Hidden J at 1 COUNSEL : M Green QC (applicant) C Maxwell QC (respondent) SOLICITORS : Legal Aid Commission of NSW (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Sentence - Redetermination of life sentence Sentencing Act 1989 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Probation and Parole Act 1983 Veen v The Queen (No 2) (1988) 164 CLR 465 CASES CITED : R v Previtera (1997) 94 ACrim R 76 R v Patrick Francis Horan (unreported, 20 March 1998) R v Leaver (CCA unreported 23 November 1994) DECISION : Application granted. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J MONDAY 21 AUGUST 2000 L00018 of 1996 Regina v Sidney Justin Bowtell Reasons for determination 1 HIS HONOUR: On 20 July 1989 at the Supreme Court in Wollongong the applicant, Sidney Justin Bowtell, was sentenced by Mathews J to penal servitude for life for manslaughter. His plea of guilty to that charge had been accepted by the Crown prosecutor in full satisfaction of an indictment for murder, on the basis of diminished responsibility. Pursuant to s13A of the Sentencing Act 1989, he applies for the determination of minimum and additional terms in respect of that sentence. (The Sentencing Act has since been repealed, and provision for these applications is now made by Schedule 1 to the Crimes (Sentencing Procedure) Act 1999.) 2 The offence occurred on 21 September 1988 and the circumstances of it were described by Mathews J as the worst she had ever encountered. In her remarks on sentence her Honour summarised them as follows: The prisoner was seventeen at the time, walking in the evening in Keira Street, Wollongong. The victim, who was a small woman aged eighty-one, was a complete stranger to him. She was also walking in Keira Street, near the premises of Goodyear Tyre & Brake Service. The prisoner ran up to her from behind, grabbed her by the throat and dragged her into the Goodyear premises. There, according to his record of interview the following day, the prisoner held her around the throat with his left hand while he struck her four blows in the area of her chin. After that, he said she was dead. I must assume, however, from the injuries described by Dr Versoza, that the actual degree of violence was much greater than that. For not only were there generalised haematomas and abrasions throughout almost the whole of the victim's scalp and facial areas, with associated contusions, but there was a complete fracture of the left jaw and a fracture of each of the third right and left ribs. Notwithstanding that the prisoner is a powerfully built, strong young man, and that the victim was a small, frail old lady, I do not see how four blows to the chin could possibly have caused these injuries. Nor did the violence or indignities end there. It can only be a matter of relief that (the victim) was very probably dead, or at least unconscious, when the next appalling acts of degradation were perpetrated upon her body. For the prisoner then proceeded to remove her clothes and to sexually violate her in the worst conceivable manner. And although he subsequently denied that he was capable of achieving any real penetration of her body, that is entirely inconsistent with the medical evidence which reveals that there were horrible injuries in both vaginal and anal areas. The prisoner then went through her purse from which he extracted some small change and one or two minor valuables. Finally he placed her naked body in an industrial waste bin. Afterwards he left the area, took a cab back to his father's home at Corrimal, and telephoned his estranged girlfriend … to tell her what he had done. By this time it was about one o'clock in the morning. He told her that he had used the victim's clothes to wipe off his fingerprints. Which, in retrospect is a little strange; for at that stage he had not done so. It was only after this conversation that the prisoner returned to the scene where he used the victim's scarf and beanie to wipe his fingerprints off the victim's neck. He then again left the scene and caught a taxi back to Corrimal. This, according to the evidence took place at about 2.30 to 3.30 in the morning. It was later on the morning of 22 September that the victim's naked body was found in the bin and the police were called. Later that day the prisoner's girlfriend contacted the police. The prisoner was duly arrested that evening, and a lengthy record of interview was conducted in the presence of his father. In it he admitted the killing and described the events which preceded and followed it. At that time he obviously had a clear recollection of the events of the previous night, although on my assessment he was already minimising the seriousness of his unspeakable actions. By the time he later spoke to the various psychiatrists who have examined him, he professed to have very little recollection indeed of the events of that night, as to which the psychiatrists generally were very sceptical. I share their scepticism. 3 At the time of the offence the applicant was on bail in respect of a charge of armed robbery. That offence had been committed by the applicant and a number of other juveniles, one of whom was armed with a replica pistol, in a street in Penrith on 10 August 1988. The applicant ran at the victim, a forty year-old man, tackling him to the ground. The victim got to his feet, but the juvenile who had the replica pistol menaced him with it and demanded money. On being told that he had no money, the young men seized his briefcase and wallet and ran off. 4 On his arrest for that offence the applicant was detained at Cobham Juvenile Shelter until he was released on bail on 15 August 1988. That bail was conditioned that he reside with his father at an address at Corrimal. On 20 March 1989 he was sentenced for the armed robbery to three years imprisonment, to date from 22nd September 1988, with a non-parole period of eighteen months. I shall return to that matter later in these reasons, as it has a bearing upon the outcome of this application. He has some earlier findings of guilt in Children's Courts, which are of no present consequence. 5 Such explanation as there is for this brutal killing is to be found in the applicant's background and his psychiatric state at the time. As observed, he was then seventeen years old. He is now twenty-nine. He was born in Queensland and has a younger brother who, apparently, has not been in conflict with the law. His parents separated when he was two years old and he spent most of his time with his father, living a somewhat itinerant existence because of the requirements of his father's employment in the building industry. His early home life was uneventful but, because of his low intelligence, he performed poorly at school. With a history of truancy, he left school at the age of about thirteen. At the time he was sentenced the evidence before her Honour was that he was functionally illiterate. 6 In his early teens he moved to New South Wales, where he stayed mainly with his father but, at times, with his mother. He became a very heavy drinker and also used marijuana to excess. His employment was sporadic and he developed no work skills of any value. However, there was a period of some stability in 1987 when he worked regularly for his father as a bricklayer in the Campbelltown area. 7 In January 1988 the applicant commenced an intimate relationship with the woman to whom Mathews J referred as his girlfriend. That relationship was as intense as it was inappropriate. She was twenty years his senior. She had previously had a relationship with his father, and her eldest son was one year older than he. Mathews J observed that he "became utterly obsessed with this woman and by their relationship". He had had a history of unpredictable and irrational mood swings and had occasionally indulged in acts of self-mutilation, but it was during this relationship that he demonstrated a propensity for significant violence towards others. When they argued he would smash things in the home, and on occasions he struck her. However, as her Honour observed, the level of violence escalated when things started to go wrong with the relationship. 8 It was because of difficulties in the relationship that the applicant went to a shelter in the Penrith area in about July 1988. He was in the company of other residents of the shelter when he was involved in the armed robbery to which I have referred, in the following month. Despite the bail condition that he reside with his father, he sought to re-establish his relationship with the woman, only to find that she wished to terminate it. He could not accept this, he telephoned her constantly, he attempted to harm himself and generally behaved in what her Honour described as "an entirely erratic and irrational fashion". 9 Ultimately, the woman told the applicant that she had commenced another relationship, as it happens, with a man who had previously been his youth counsellor and whom he had trusted. He was utterly distraught. He tried to crash a motor car in which he and she were travelling and, on a later occasion, chased her new lover with a crow-bar. 10 On the day of the killing the applicant was living with his father, but he was not working. He was drinking throughout the day. In the evening he went to a club at Wollongong with some friends but they left without him. He also left on foot and eventually found himself in Keira Street, Wollongong where he saw the unfortunate victim. In a recorded interview with police he said, "I was just thinking of my ex-girlfriend and how to get revenge and I just got real angry and I just wanted to let my aggression out and I seen this lady. I walked up behind her and started strangling her and punching her." He went on to describe having sexually assaulted her. As her Honour put it, "He vented his anger in unimaginable respects". 11 Her Honour had the benefit of psychiatric reports by Dr John Robert Strum, Dr C L Wong, Dr William Barclay and Dr Thomas Clark. Reviewing his background, all four psychiatrists concluded that the applicant suffered from a Borderline Personality Disorder, which triggered his extreme reaction to the break-up of the relationship. All considered that the elements of the defence of diminished responsibility were established. Dr Wong and Dr Barclay expressed no opinion about the applicant's prognosis. Dr Clark described it as "very much guarded", although he added that people suffering from that disorder "do tend to settle in their mid to late twenties". Dr Strum, on the other hand, was most pessimistic. His report concluded as follows: I must stress that this man is incurable, violent, incapable of learning or of changing, and is a danger to be at large. He has shown clearly the extent of his violent response to frustration and, unfortunately, life is such that people will always find situations of frustration. His inability to learn was evident in his failed schooling, his inability to take notice of prohibitions and his inability to accept rejection. He acts on impulse and not with planning. He was unable to control his rages and his predilection for mixtures of alcohol and marijuana, a combination which I believe is like a fuse to the dynamite of his personality disorder, will make him a danger in the future. 12 This was the view which her Honour accepted and it was influential in her decision to impose the maximum sentence then provided by law, notwithstanding the applicant's youth. After referring to Veen v The Queen (No 2) (1988) 164 CLR 465, her Honour concluded that any mitigation which might have been afforded by the applicant's personality disorder was "entirely off-set" by the fact that it also meant that he was "a real danger to society". Her Honour considered that the need for retribution called for a sentence of penal servitude for life, given the gravity of the crime. She added: The concept of protection of society similarly indicates that this man should not be released into the community unless and until an assessment is made that it is safe to do so. Only one sentence can achieve that result… 13 Her Honour noted reports that the applicant had responded well to programs in the juvenile institution at which he had been held. She recommended that he should be detained in such an institution for as long as it was deemed appropriate for his welfare. 14 Despite that recommendation, it appears that the applicant has been detained in adult institutions since sentence was passed, mainly at Lithgow and Grafton. His response to imprisonment has followed a pattern familiar in cases such as these. Initially, he was depressed to the point of being suicidal and did not adapt well to prison discipline. A psychological report of August 1989 described him as "a confused, immature and inadequate young man" who exhibited "deficient coping skills" and "limited insight". However, the numerous reports furnished to me demonstrate a gradual maturation over the ensuing years, with a proper appreciation of the enormity of his crime and the development of a positive outlook for the future. 15 He was on protection until early in 1995. There have been incidents of aggressive or disruptive behaviour and, at an earlier stage, of self-inflicted injury. Generally, however, there has been a marked improvement in his conduct. He has partaken in a variety of courses and has furthered his general education, obtaining his school certificate in 1998. A report of July 1999 of Miss Lorraine Seale, education officer at Grafton, speaks most highly of his application and achievement in this area. 16 He has also undertaken courses in personal development and drug and alcohol counselling, again earning favourable reports from those dealing with him. In a report of January 2000 Mr Colin Wysocki, a counsellor at Grafton, observed: He now has a clear goal of abstinence from all drugs which, due to his diligence, he should achieve. He acknowledges a history of alcohol and other drug use prior to incarceration, but due to a sincere attempt at rehabilitation he has continued to strengthen this area through his participation in personal growth. 17 In the following month another counsellor, Ms Judith Jaworski, reported that he was aware of the importance of abstinence, particularly from alcohol. It appeared to her that he had not taken alcohol while in prison, despite the ready availability of "home brews". Nevertheless, he acknowledged to her that he had been using cannabis, as he did in evidence before me. He was equally frank about his use of that drug in a consultation with Dr Robert Delaforce, psychiatrist, in July 1999, saying that he planned to continue to use it recreationally upon his release from prison. I shall return to that matter in a moment. 18 He is fortunate to have had the benefit of regular contact with Ms C A Drayden-Thompson, psychologist, at Grafton since January 1996. It was she who suspected that he suffered from attention deficit disorder and who recommended, for that reason, that he be assessed by Dr Delaforce. In May 1997 Dr Delaforce diagnosed Attention-Deficit/Hyperactivity Disorder (ADHD) and prescribed appropriate medication. 19 As Dr Delaforce explained in evidence, this is a most significant development. The disorder provides a new found insight into the applicant's aberrant behaviour in the past, including his unacceptable conduct whilst in prison, and its diagnosis and treatment bode well for the future. The medication has led to a marked improvement in his concentration and perseverance, as well as his ability to deal with conflict in a mature way. 20 He expressed his remorse for his crime to Dr Delaforce, saying that he felt "disgusted" at what he had done and acknowledging the suffering of the relatives of the unfortunate victim. He repeated that expression of remorse in evidence before me. Dr Delaforce accepted it as genuine, as do I. He has the benefit of the continuing support of his father and his brother. It seems that, whilst in prison, he formed an association with a woman who has two sons. That relationship has not endured, but he has kept in touch with them and feels a measure of fatherly responsibility for the boys. That contact may well be a further source of stability when he is released into the community. More recently, he has had contact with a Christian group which visits prisoners, and which he described as "a very supportive network". 21 I have been greatly assisted by a report of Ms Drayden-Thompson of 11 February 2000 and the report of Dr Delaforce of 9 September 1999, together with his oral evidence. I have been impressed by the insight and realism of the approach of both these experts. Ms Drayden-Thompson's report concludes: Clinical impressions gained in one to one interaction with Mr Bowtell are that he has made progress in personal growth and has achieved gains in self control and communication skills. Mr Bowtell harbours realistic aspirations such as gaining employment and reconnecting with his family. He perceives that his main difficulty will be in re-adjusting to life in the community. He came to gaol as a juvenile of 17 years with a mental age of about 13 (as a result of his drug and alcohol abuse). Thus Mr Bowtell has a lot of growing up to do away from the very artificial and abnormal environment of the prison system. It is considered that he has been counselled in relation to his choice of lifestyle and his vulnerabilities, and he is aware of community resources and is willing to utilise them if necessary. Mr Bowtell displays sufficient maturity, in that he is willing to seek the assistance of others if problems arise. He has a more than adequate support network and the personal resources to make the adjustment, however would benefit from psychological counselling during the period after release. Clinical impressions are that Mr Bowtell has made significant progress in personal growth, and is capable of, and ready for re-entry into the community. Any further progress in his personal development and maturity, can best be achieved with support in the community. 22 In addition to ADHD, Dr Delaforce diagnosed what he described as a Personality Disorder Not Otherwise Specified. He considered that the applicant has some of the personality features of Antisocial Personality Disorder and Borderline Personality Disorder, but did not satisfy the criteria for diagnosis of either of them. In evidence, he said that the Antisocial Personality Disorder features encompassed his behavioural problems in childhood and his earlier criminal activity, including the armed robbery. The features of Borderline Personality Disorder were his unstable personality, his difficulty in controlling his anger and dealing with the break-up of relationships, and his lack of identity and purpose in life. 23 The doctor noted a significant abatement of those features in recent times, and he explained that the current view of psychiatrists is that personality disorders generally are not as inflexible and pervasive as they were earlier believed to be. It is this, together with the diagnosis of ADHD, which caused him to question the gloomy prognosis of Dr John Strum at the time of sentence. In his report he wrote: "Dr Strum's 1989 opinion that Mr Bowtell was "incurable, violent, incapable of learning or of changing, and is a danger to be at large", had some influence on Mr Bowtell receiving a life sentence. Ten years later the progress of psychiatry allows it to be reasonably said that although Personality Disorders are generally associated with negative outcomes, they often show some improvement over time, and usually during the fourth decade of life. Generally they have been regarded as treatment resistant however, some gains from psychotropic (psychiatric) medication and other types of therapy have been noted. That is, and working here from the perspective of a current Personality Disorder with antisocial and borderline features, one does not have to be totally pessimistic, but instead appropriately cautious about the outcome. Another important consideration is that a comorbid mental disorder, such as ADHD, can change the prognosis. There are good indications here of a very favourable response to stimulant medication. However, that alone does not counter any effects of the Personality Disorder but can nevertheless favourably influence the overall state of mental health." 24 The doctor added that the whole of the information available to him "indicates that there has been a definite improvement in his mental health functioning during the 1990s, which in itself counters the notion implied in 1989 that he would never change". Turning to the question of future dangerousness, he noted that the applicant was not free of "significant problems with his personality functioning", and concluded: "It is reasonably likely but not quite probable, that he would criminally offend if released from prison in the foreseeable future. Most likely this would be associated with substance use, which he will probably return to, which will represent a potent determinant of his future violence. There are no significant indications that he would re-offend in a manner similar to the 1988 offence, either with such severe physical violence or sexual assault. He is more likely to offend with violence of much lesser severity, for example, the result of a fight in a hotel or club. What needs particular emphasis here is that the 1988 crime followed a period of heightened stress, the end of a relationship with a woman, at a time he was already struggling to cope adequately and has insufficient personal resources or assistance to deal with such a loss. With the passage of time, increasing maturity, and the experience he gained from his treatment and his prison relationships, one of which ended during his imprisonment, he would likely deal much better with stress. 25 I turn, then, to the applicant's continued use of cannabis. He explained in evidence that he used it occasionally, rather than daily, and that he did so partly as a result of peer pressure and partly to help him deal with stress. He added that, in the months which have passed since he spoke to Ms Jaworski and Dr Delaforce, he had come to realise that it was undesirable and he hoped, with further counselling, to give it up. I suspect that that will not be easy for him but it is most important that he does so. Dr Delaforce expressed his concern about the matter in evidence, although he acknowledged the applicant's openness and honesty about the matter, which he saw as a positive sign. 26 Two other matters should be noted. The Crown prosecutor raised the possibility that the sexual aspect of the applicant's crime arose from some deep seated and enduring sexual problem. The applicant denied this, saying that his behaviour "was something that was totally out of character for that specific moment in time" and that the memory of it sickened him. In this he was supported by the evidence of Dr Delaforce, who saw the sexual acts as part of the extreme violence which the applicant perpetrated upon the deceased which, in turn, was consistent with his personality disorder. He added that the applicant has had a deal of contact with health care professionals over the years he has been in prison, and he believed that any sexual deviancy would have been identified. That is the view which I take. 27 It seems that in January 1999 a prison officer's report expressed concern that the applicant "might be a ring-leader, stand-over person in the prison, and involved in the movement of drugs about the prison". The applicant denied this allegation in evidence, believing it to have emanated from another prisoner with whom he had come into conflict. It is inconsistent with the other reports about him and there is no evidence to support it. I reject it. 28 In summary, the applicant has made considerable progress towards his rehabilitation and should now be able to look forward to a date when he will be eligible for parole. While the risk of his re-offending must be acknowledged, there is good reason to believe that, with appropriate supervision and support, he can achieve a satisfactory and law abiding lifestyle in the community. I am confident that the extreme violence which he perpetrated upon that unfortunate woman in 1988 is now a thing of the past. 29 None of this, of course, is to deny the enormity of his crime. That is evident from a recitation of the objective facts. I received in evidence a victim impact statement of the daughter of the deceased. (The status of statements of that kind was examined by Hunt CJ at CL in R v Previtera (1997) 94 ACrim R 76 at 84ff.) It speaks eloquently of the profound and enduring effects of the crime upon her and her siblings. Many of us have had to learn to accept the loss of someone dear to us who was elderly and overtaken by ill-health. It is quite another matter to come to terms with the violent death of a loved one, particularly in circumstances as horrific and senseless as these. To those relatives I express my deepest sympathy, as would any right thinking member of this community. 30 It is entirely understandable that the deceased's daughter urges that the applicant should never be released. That, of course, is not an option open to me. Mathews J sentenced him at a time when most life sentence prisoners could expect to be released into the community eventually and, from the passage in her remarks on sentence which I have quoted at par 12 of these reasons, it is apparent that her Honour envisaged that a time might come when the applicant would be fit for release. My task is to arrive at a total sentence and a minimum term which reflect the gravity of the crime while making proper allowance for the applicant's background, his age, his mental state at the time and his considerable strides towards rehabilitation during his imprisonment. I must also have regard to the fact that he has spent about five years on protection. 31 The Crown prosecutor raised the question whether this application should be refused at this stage on the basis that it is premature, but he did not press a submission to that effect. Clearly, the application should be granted for the reasons expressed in the authorities to which I referred in dealing with the application in R v Patrick Francis Horan (unreported, 20 March 1998) at p13ff. What the Crown prosecutor did urge, however, was that I should fix a lengthy minimum term, calculated to reflect the seriousness of the crime, and an additional term for the remainder of the applicant's life. Counsel for the applicant acknowledged that the minimum term must be substantial, even allowing for favourable subjective matters, but he argued for a determinate additional term. 32 To impose a total sentence of imprisonment for life would be open to me, even though the maximum for manslaughter is now 25 years: R v Leaver (CCA, unreported, 23 November 1994). However, I could do so only if I were satisfied that the case fell into the worst category of manslaughter, so as to call for the maximum sentence provided by law. The legislation requires me to have regard to the reasoning of the original sentencing judge and I would, of course, afford great weight to the views of a judge as experienced and as compassionate as Mathews J. However, as I have recorded in pars 11 & 12 of these reasons, an important factor in her Honour's decision to impose the life sentence, despite the applicant's youth, was the gloomy prognosis of Dr Strum. In the light of the evidence before me, that outlook can no longer be maintained. I have given this aspect of the matter anxious consideration, and I am persuaded that the total sentence should be a determinate period. 33 I have not found the assessment of the appropriate minimum term any easier. Counsel took me to Leaver and Horan, which were applications similar to this, and to the remarks on sentence of Hunt CJ at CL in Previtera. I have found those cases of some assistance although, as one would expect, the differences between them and the present case are as significant as the similarities. I do not propose to summarise them for the purpose of these reasons. Obviously, should the applicant be released on parole, it is desirable that he be subject to supervision and the sanction of parole for a lengthy period. 34 As I observed at the outset of these reasons, this application was made under the Sentencing Act and it was heard before the Crimes (Sentencing Procedure) Act 1999 came into force. Schedule 2 to that Act contains transitional provisions, from which it appears that I should deal with the application in accordance with the Sentencing Act: see cl 21(2) of the Schedule. However, I shall hear the parties on that matter before making any formal order. Apart from the form of my order, the relevant provisions of both Acts are the same. 35 I am required to date the minimum term which I set from the day on which the applicant was first remanded in custody in respect of this offence. That was 23 September 1998, he having been arrested the previous evening. As I have recorded in par 4 of these reasons, the three year sentence for the armed robbery was to date from 22 September 1988. That sentence was passed under the Probation and Parole Act 1983 (since repealed). What has been described as a non-parole period of eighteen months would in fact have been a non-probation period, within the meaning of s5 of that Act. By s11(1), the applicant would have been entitled to release on probation at the expiration of that period. Both the head sentence and the non-probation period would then have been subject to reduction by remissions, and it is likely that he would have been released after about twelve months. It is upon that basis that I take the armed robbery sentence into account in arriving at the minimum term which I must impose. 36 The application is granted. My intention is that, in lieu of the life sentence imposed by Mathews J, the applicant should serve a total sentence of 21 years imprisonment, with a minimum term of 15 years, dating from 23 September 1988. That minimum term would expire on 22 September 2003 and he would be eligible for release on parole on the following day. After hearing from the parties about the appropriate procedure, I shall pronounce formal orders to that effect. ********** Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.