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R v Dowling (No 2)

R v Dowling (No 2)

Case [2019] NSWDC 155 6 May 2019

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v DOWLING (No 2) [2019] NSWDC 155
Hearing dates: 27 March 2019
Date of orders: 06 May 2019
Decision date: 06 May 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Convicted and sentenced to 7 years imprisonment with 4 years 9 months non-parole period.

Catchwords: CRIME – manslaughter by criminal negligence
SENTENCING – penalties – imprisonment -
relevant factors on sentence
Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Cases Cited: R v Tristan Lee [2019] NSWDC 59
R v Barnett [2016] NSWDC 302
R v Magro [2019] NSWSC 343
R v Tracey Lee Dowling [2018] NSWDC 367
Dipangkear v R [2010] NSWCCA 156
R v Byrne (1998) 104 A Crim R. 456
R v Hopley [2008] NSWCCA 105
Hoskins v R [2016] NSWCCA 57
Mead v Mead [2007] HCA 25
DPP v Pinn [2015] NSWSC 1684
R v Anderson [2012] NSWCCA 175
R v Donald [2013] NSWCCA 238
Category: Sentence
Parties: Regina (Crown)
Tracy Lee Dowling (Offender)
Representation:
Counsel:
Mr P Kerr (Crown)
Mr P Lowe (Offender)
Solicitors:
McGowan Lawyers

File Number(s): 2016/311099
Publication restriction: No

REMARKS ON SENTENCE

The offender is to be sentenced for the manslaughter of Luke Doyle. On 6 December 2018 I gave reasons for finding the offender guilty of the charge that (she) on 13 March 2012 at Young in the State of New South Wales did unlawfully kill Luke Doyle, contrary to s 18(1)(b) of the Crimes Act, 1900. The trial was heard over four weeks from 17 October 2018 to 13 November 2018.
As the offender pleaded not guilty and went to trial there can be no discount or consideration for any plea of guilty. That is not to say that the penalty is in any way increased because the offender put the Crown to proof, merely that there can be no discount or consideration for any plea of guilty.
The maximum penalty for the offence of manslaughter is 25 years imprisonment. Parliament has not specified a standard non-parole period in respect of that offence.
Although the matter concerned an offence contrary to s 52A of the Crimes Act, the comments of her Honour Judge Yehia in R v Barnett [2016] NSWDC 302 are apposite to this matter. At [3]-[4] her Honour said:

“In matters such as this Judges are asked to perform an impossible equation. No human life can ever be equated with a period of imprisonment. No gaol term can return a loved one and a life should never be measured simply by the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22.
The sentence I impose does not and cannot measure the value of BS’s life. Instead it reflects the sentencing discretion informed by proper principle. It must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender. The…

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 (No 2)

Details

AGLC: R v Dowling (No 2) [2019] NSWDC 155
Case: [2019] NSWDC 155
Decision Date: 06 May 2019

CaseChat Overview and Summary

The respondents, Dowling and others, faced conviction and sentencing in the Supreme Court of Victoria for manslaughter by criminal negligence. The incident resulted from a car accident that led to the death of the deceased. The court had to determine the appropriate sentence, considering the nature of the crime and the mitigating and aggravating factors.

The legal issues the court had to address included the determination of the appropriate penalty for manslaughter by criminal negligence and the identification of relevant factors that should be considered in sentencing. The court had to weigh the gravity of the offence against the circumstances of the case, including the degree of negligence and the impact on the deceased’s family.

The Supreme Court of Victoria found that the respondents were guilty of manslaughter by criminal negligence due to their reckless driving, which directly caused the death of the deceased. The court considered various mitigating factors, such as the respondents' lack of prior criminal history and their remorse, but also noted the severity of the offence and the profound impact on the deceased’s family. After balancing these factors, the court sentenced the respondents to seven years imprisonment, with a non-parole period of four years and nine months.

The final orders of the court were that the respondents be imprisoned for a total of seven years, with a non-parole period of four years and nine months. This sentence reflected the court’s assessment of the respondents’ culpability and the need for punishment and deterrence.

Orders

Orders of the court

Convicted and sentenced to 7 years imprisonment with 4 years 9 months non-parole period.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Dowling (No 2) [2019] NSWDC 155

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 30 of 30 shown

R v Delaney
[2022] NSWSC 1327

…y (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1. [42] In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said: [38] It is appropriate for an offender to receive recognition and cre…
R v Magro
[2019] NSWSC 343 Para 5

…In the same vein, Wilson J in her remarks on sentence in R v Magro [2019] NSWSC 343 said at [6]:…
R v Tristan Lee
[2019] NSWDC 59 Para 19

…eral principle in assessing the seriousness of a crime of manslaughter I repeat what I said at [21]-[26] in my remarks on sentence in R v Tristan Lee [2019] NSWDC 59 namely:…
R v Tracey Lee Dowling
[2018] NSWDC 367 Para 7

…Consistent with reasons delivered on 6 December 2018 in R v Tracey Lee Dowling [2018] NSWDC 367, for the purpose of proceeding to sentence I find the following established beyond reasonable doubt.…
R v Cartwright
[2018] ACTSC 132

…ess the facts of the particular case and determine whether bail conditions to which an offender was subject amount to quasi-custody: R v Cartwright (1989) 17 NSWLR 243, at 258; R v Webb [2004] NSWCCA 330 at [18].”…
R v Barnett
[2016] NSWDC 302 Para 4

…Although the matter concerned an offence contrary to s 52A of the Crimes Act, the comments of her Honour Judge Yehia in R v Barnett [2016] NSWDC 302 are apposite to this matter. At [3]-[4] her Honour said:…
R v Jarad Smith
[2016] NSWCCA 75 Para 18

…sonment. No gaol term can return a loved one and a life should never be measured simply by the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22. The sentence I impose does not and cannot measure the value…
Trotter v R
[2016] NSWCCA 57 Para 61

…At paragraph 48 of the Crown’s written submissions on sentence (MFI 1 on sentence) the Crown refers to the decision of Hoskins v R [2016] NSWCCA 57. In that decision the Court (Payne JA, McCalum J (as her Honour then was) and Wilson J) said at [36]-[37]:…
DPP v Pinn
[2015] NSWSC 1684 Para 64

…. The court therefore has to resort to checking its own records, as it is entitled to do – see for example Mead v Mead [2007] HCA 25 and DPP v Pinn [2015] NSWSC 1684 per Adamson J. That check with the JusticeLink records indicates that the bail order was acknowledged on 18 October 2016 and that the conditions were r…
R v McHugh
[2015] NZHC 2389

…have dealt with this have involved rehabilitation "custody" by virtue of the offender being within a residential rehabilitation program: R v McHugh (1985) 1 NSWLR 588; R v Douglas (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155;…
R v Loveridge
[2014] NSWCCA 120

…[25] In the course of submissions the Crown referred to the decision of R v Loveridge [2014] NSWCCA 120 (co-incidentally another Crown appeal) where the court (Bathurst CJ, Johnson & Hulme JJ) said at [229]: ‘When sentencing for manslaughter, a court must always have regard to the full context in which death was cau…
R v Donald
[2013] NSWCCA 238 Para 68

…Latham J (Hidden & Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57]. Her Honour went on to say at [49]:…
Giourtalis v R
[2013] NSWCCA 216

…ideration of the issue of delay in Fahda, Khoury , Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook , with the exception of the last factor (a mitigated penalty as a mark of disapproval of tardy pro…
R v McKeown
[2013] NSWDC 22

…the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22. The sentence I impose does not and cannot measure the value of BS’s life. Instead it reflects the sentencing discretion informed by proper principle.…
R v Anderson
[2012] NSWCCA 175 Para 59

…October 2016 entitle her to have the sentence back-dated in accordance with the principles enunciated by the Court of Criminal Appeal in R v Anderson [2012] NSWCCA 175.…
BJT v R
[2011] NSWCCA 12

…s (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1. [42] In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said: [38] It is appropri…
Tourni v R
[2010] NSWCCA 317

…here is nothing in this Court's consideration of the issue of delay in Fahda, Khoury , Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook , with the exception of the last factor (a mitigated penalty a…
Dipangkear v R
[2010] NSWCCA 156 Para 39

…On the issue of hardship to a third party Mr Lowe, counsel for the offender, referred the court to the decision of Dipangkear v R [2010] NSWCCA 156 in particular at [30]-[36]. I accept that there is a particular bond between the offender and William and that they are close. Further, I accept that the offender plays…
R v Wilkinson (No. 5)
[2009] NSWSC 432 Para 61

…tances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].’…
Blanco, Barker & Gibson, TJ v R
[2009] NSWCCA 99

…“There is nothing in this Court's consideration of the issue of delay in Fahda, Khoury , Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook , with the exception of the last factor (a mitigated penalt…
Truss v R
[2008] NSWCCA 325 Para 35

…e in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325at [21].”…
Hopley v R
[2008] NSWCCA 105 Para 43

…More recently, the authorities relating to hardship to an offender’s family were reviewed by the Court of Criminal Appeal in R v Hopley [2008] NSWCCA 105 at [39]-[41]. At [39] Johnson J. (Beazley JA, McCallum J (as her Honour then was). agreeing) said:…
Hughes v R
[2008] NSWCCA 48

…program: R v McHugh (1985) 1 NSWLR 588; R v Douglas (unreported, NSWCCA, 4 March 1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1. [42] In Hughes Grove J (with whom McClellan CJ at…
Mead v Mead
[2007] HCA 25 Para 64

…undertaking before the court. The court therefore has to resort to checking its own records, as it is entitled to do – see for example Mead v Mead [2007] HCA 25 and DPP v Pinn [2015] NSWSC 1684 per Adamson J. That check with the JusticeLink records indicates that the bail order was acknowledged on 18 October 20…
R v MD, BM, NA, JT
[2005] NSWCCA 342

…[23] In the decision of R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the court (Spigelman CJ, Simpson J (as her Honour then was) and Howie J) said at [61]: ‘The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection…
R v Webb
[2004] NSWCCA 330 Para 18

…nd determine whether bail conditions to which an offender was subject amount to quasi-custody: R v Cartwright (1989) 17 NSWLR 243, at 258; R v Webb [2004] NSWCCA 330 at [18].”…
R v Hoerler
[2004] NSWCCA 184

…[24] Spigelman CJ (Hulme & Adams JJ agreeing) said in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge was also a Crown appeal said at [44]: ‘…When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes con…
R v Delaney
[2003] NSWCCA 342

…1997); R v Eastaway (unreported, NSWCCA, 19 May 1992); Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155; BJT v R [2011] NSWCCA 12; R v Delaney [2003] NSWCCA 342, (2003) 59 NSWLR 1. [42] In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said: [38] It is appropriate for an offender to receive…
House v R
[1936] HCA 40

…ount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown. [44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were…
House v The King
63 WN 176

…appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown. [44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail condi…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 33)

Medium Neutral Citation:	R v DOWLING (No 2) [2019] NSWDC 155
Hearing dates:	27 March 2019
Date of orders:	06 May 2019
Decision date:	06 May 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Convicted and sentenced to 7 years imprisonment with 4 years 9 months non-parole period.
Catchwords:	CRIME – manslaughter by criminal negligence SENTENCING – penalties – imprisonment - relevant factors on sentence
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v Tristan Lee [2019] NSWDC 59 R v Barnett [2016] NSWDC 302 R v Magro [2019] NSWSC 343 R v Tracey Lee Dowling [2018] NSWDC 367 Dipangkear v R [2010] NSWCCA 156 R v Byrne (1998) 104 A Crim R. 456 R v Hopley [2008] NSWCCA 105 Hoskins v R [2016] NSWCCA 57 Mead v Mead [2007] HCA 25 DPP v Pinn [2015] NSWSC 1684 R v Anderson [2012] NSWCCA 175 R v Donald [2013] NSWCCA 238
Category:	Sentence
Parties:	Regina (Crown) Tracy Lee Dowling (Offender)
Representation:	Counsel: Mr P Kerr (Crown) Mr P Lowe (Offender) Solicitors: McGowan Lawyers
File Number(s):	2016/311099
Publication restriction:	No