R v Tristan LEE [2019] NSWDC 59

District Court New South Wales

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 1. 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." 1. 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. 2. 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. 3. 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."