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

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 1. 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. 2. 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. 3. 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. 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: "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 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." 1. In the same vein, Wilson J in her remarks on sentence in R v Magro [2019] NSWSC 343 said at [6]: "No court could reflect the value of his life, or the depth of grief his death has caused, by a sentence of so many years and months of imprisonment for his killer." 1. Likewise, the sentence imposed on Tracey Dowling does not and cannot measure the life of the late Luke Doyle.