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 sentenceLegislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999Cases 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 238Category: Sentence Parties: Regina (Crown)
Tracy Lee Dowling (Offender)Representation: Counsel:
Solicitors:
Mr P Kerr (Crown)
Mr P Lowe (Offender)
McGowan Lawyers
File Number(s): 2016/311099 Publication restriction: No
REMARKS ON SENTENCE
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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.
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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.
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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.
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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…
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- AGLC
- R v Dowling (No 2) [2019] NSWDC 155
- Case
- [2019] NSWDC 155
- Decision Date
CaseChat Overview and Summary
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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