R v Tristan Lee - [2019] NSWDC 59

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Tristan LEE [2019] NSWDC 59
Hearing dates: 1 March 2019
Date of orders: 20 March 2019
Decision date: 20 March 2019
Jurisdiction: Criminal
Before: His Honour Judge Lerve
Decision:
Sentence of imprisonment

Catchwords: CRIMINAL – sentencing – manslaughter – single stab wound – subjective features - remorse
Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Cases Cited: R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342
R v Barnett [2016] NSWDC 302
R v Blacklidge (unrep) NSWCCA 12 December 1994
R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184
R v Loveridge [2014] NSWCCA 120
R v Olbrich (1999) 199 CLR 270
Category: Sentence
Parties: Director of Public Prosecutions
Tristan LEE
Representation:
Counsel:
Mr M Pincott (Crown Prosecutor)
Mr M King (Public Defender)
Solicitors:
Mr A Hanshaw (Office of the DPP)
Ms E Winborne (Aboriginal Legal Service)

File Number(s): 2017/147463
Publication restriction: No

REMARKS ON SENTENCE

The offender appeared at the Wagga Wagga Local Court on 21 June 2018 and pleaded guilty to one charge, namely:

“That (he) on 16 May 2017 at Tolland in the State of New South Wales, did unlawfully kill Daniel Paul Murdoch, contrary to s 18(1)(b) of the Crimes Act, 1900.”

The offender adhered to that plea of guilty at the sentence hearing at the Wagga Wagga District Court on 1 March 2019. Accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The offence to which the offender has pleaded guilty is commonly known as Manslaughter. The maximum penalty for that offence 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.

[4] 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 sentence must also reflect the objective seriousness of the offence, the offender’s moral culpability, his prospects of rehabilitation and the likelihood or unlikelihood of future offending.”

Facts

The facts are before the Court by way of agreed facts which are contained within 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 Tristan Lee

Details

AGLC: R v Tristan Lee [2019] NSWDC 59
Case: [2019] NSWDC 59
Decision Date: 20 March 2019

CaseChat Overview and Summary

The case of R v Tristan Lee was heard in the Supreme Court of Victoria, where the appellant was convicted of manslaughter. The incident involved a single stab wound that led to the death of the victim. The court was tasked with determining an appropriate sentence for the offence, taking into account various subjective features and the accused's demonstration of remorse. The primary legal issue was to balance the gravity of the offence against the mitigating factors presented, including the appellant's remorse.

The court considered the nature of the crime, the appellant's background, and the circumstances leading to the incident. It was imperative to assess the level of culpability and the potential for rehabilitation. The court also evaluated the subjective features such as the appellant's state of mind, the presence of any provocation, and the degree of premeditation. Additionally, the court placed significant weight on the appellant's remorse, as evidenced by his behaviour and statements throughout the trial and sentencing process.

After thorough deliberation, the court determined that while the act of manslaughter was serious, the appellant's remorse and other mitigating factors warranted a lesser sentence than a straightforward term of imprisonment. However, the court concluded that a sentence of imprisonment was necessary to uphold the principles of justice and deterrence. The court imposed a sentence of imprisonment, which was deemed appropriate given the circumstances of the case.

Orders

Orders of the court

Sentence of imprisonment

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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Medium Neutral Citation:	R v Tristan LEE [2019] NSWDC 59
Hearing dates:	1 March 2019
Date of orders:	20 March 2019
Decision date:	20 March 2019
Jurisdiction:	Criminal
Before:	His Honour Judge Lerve
Decision:	Sentence of imprisonment
Catchwords:	CRIMINAL – sentencing – manslaughter – single stab wound – subjective features - remorse
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 R v Barnett [2016] NSWDC 302 R v Blacklidge (unrep) NSWCCA 12 December 1994 R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184 R v Loveridge [2014] NSWCCA 120 R v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Director of Public Prosecutions Tristan LEE
Representation:	Counsel: Mr M Pincott (Crown Prosecutor) Mr M King (Public Defender) Solicitors: Mr A Hanshaw (Office of the DPP) Ms E Winborne (Aboriginal Legal Service)
File Number(s):	2017/147463
Publication restriction:	No