Reported Decision: 191 A Crim R 513 New South Wales Court of Criminal Appeal CITATION: Shumack v R [2008] NSWCCA 311 HEARING DATE(S): 2nd December 2008 JUDGMENT DATE: 16 December 2008 JUDGMENT OF: Hodgson JA at 1; James J at 6; Price J at 7 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: Criminal law - sentencing - offences of dangerous driving causing death and failing to stop and assist - Whyte guideline - whether double punishment - whether sentences were manifestly excessive. Correctional Centres Act 1952 s 32 Crimes Act 1900 s 52A(1)(c), 52AB(1), s 206(a) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A s 21A(3) Crimes Amendment (Road Accidents) (Brendan's Law) Act 2005 CATEGORY: Principal judgment Ahmad v Regina [2006] NSWCCA 177 Dudko (2002) 132 A Crim R 371 R v Allpass (1993) 72 A Crim R 561 CASES CITED : R v Errington 157 A Crim R 553 R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287 R v Jurisic (1998) 45 NSWLR 209, 101 A Crim R 259 R v Whyte (2002) 55 NSWLR 252; 134 A Crim R 53 Pearce v The Queen (1998) 194 CLR 610 PARTIES: Michael John Shumack Regina FILE NUMBER(S): CCA 2007/9994 COUNSEL: H Cox (Applicant) J Girdham (Respondent) SOLICITORS: Hansons Lawyers (Applicant) S. Kavanagh Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/41/0045 LOWER COURT JUDICIAL OFFICER: Conlon DCJ LOWER COURT DATE OF DECISION: 3 December 2007 LOWER COURT MEDIUM NEUTRAL CITATION: R v Shumack IN THE COURT OF CRIMINAL APPEAL 2007/9994 HODGSON JA JAMES J PRICE J 16 December 2008 SHUMACK v R Judgment 1 HODGSON JA: I agree with Price J. 2 On the question whether the appellant's failure to stop could be taken into account as an aggravating factor in relation to the offence of dangerous driving occasioning death, I would note that the moral culpability of an offender in relation to that offence can vary enormously, not least because of different degrees of mens rea that may be involved. 3 On the one hand, the dangerous driving may be a momentary aberration in the conduct of a person who is otherwise properly concerned to observe the requirements of the law and properly concerned about the safety of other persons. On the other hand, it may be conduct carried out in disregard for the requirements of the law and disregard for the safety of other persons. 4 Failure to stop after an accident so severe that it occasions death is a strong indication that the dangerous driving itself falls into the latter rather than the former category. The failure may be explained in terms of panic; but in my opinion, even with that explanation, it would still remain relevant, albeit that it may be given less weight as an indication of the moral culpability of the offender in relation to the dangerous driving. 5 There is nothing in the sentencing judge's reasons to suggest that he took the failure to stop into account as an aggravating factor in relation to the offence of dangerous driving occasioning death otherwise than by way of what it indicated concerning the moral culpability of the offender in relation to that offence. 6 JAMES J: I agree with Price J. 7 PRICE J: This is an application by Michael John Shumack, the applicant, for leave to appeal against the severity of the sentences imposed upon him in the District Court. The applicant had been arraigned upon an indictment containing one count of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 ('the first count') and one count of failing to stop and assist after a collision occasioning death contrary to s 52AB(1) of the Crimes Act ('the second count'). The applicant pleaded not guilty. Following a trial lasting two weeks, the jury found him guilty of each count. 8 On 3 December 2007, the applicant was sentenced as follows: On the first count, imprisonment with a non-parole period of 4 years to date from 15 October 2007 and to expire on 14 October 2011 with an additional term of 2 years to expire on 14 October 2013. On the second count, imprisonment with a non-parole period of 3 years to date from 15 October 2009 and to expire on 14 October 2012 with an additional term of 2 years to expire on 14 October 2014. As a result of partial accumulation, the total effective sentence was imprisonment for 7 years with a non-parole period of 5 years. The earliest date that the applicant is eligible for release to parole is on 14 October 2012. The applicant was disqualified from driving for a period of 3 years. 9 The applicant relies on the following grounds: Ground 1: The learned sentencing judge erred by imposing "double punishment" in finding that the offence of dangerous driving occasioning death was aggravated by the fact that the applicant failed to stop after the accident which constituted the gravamen of the second offence for which he fell to be sentenced specifically failing to stop after an accident. Ground 2: The sentences imposed were manifestly excessive. Relevant legislation 10 Section 52A(1)(c) relevantly provides: " 52A (1) Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle … (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years." 11 Section 52AB(1) of the Crimes Act provides : " 52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm (1) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 10 years." 12 Section 52AB commenced on 13 February 2006. The present offence was committed on 15 September 2006. Facts 13 The facts are not in dispute. The Judge found as to the circumstances of the offences: At about 7.43pm [on 15 September 2006] the victim, Ashleigh Harriss, had been walking along Horsley Drive, a short distance behind her two friends, Jessica Brown and Albinas Lenartas. As Ms Brown and Mr Lenartas stepped off the kerb to cross the road Ms Brown said she noticed a car at the roundabout coming towards them. She yelled out to her friends to hurry up and she commented "I thought we were going to get hit and that we were in danger". She said her impression was that the car was driving at high speed and it appeared to be almost going down the centre of the road. She said it only took the car seconds to get from the roundabout to where they were. She said as she saw the car approach closer she began to run a bit faster. She said she was just over half way across the road when she heard a loud noise and the shattering of glass. Mrs Dandridge and her daughter, Kristy Lee Dandridge, gave evidence that they were sitting in their car parked across the road from number 31 Horsley Drive. Mrs Dandridge observed the first two young persons crossing the road and noticed a car coming down from the roundabout moving very fast. She saw the victim walk out and the car hit her. She heard two different sounds and the breaking of glass. She said the victim went up in the air and her hands went up and she went straight back. She said she was expecting the driver of that vehicle to pull over. At a point approximately three to four houses down the road she noticed the vehicle's brake lights go on for a few seconds and then the car sped off. Kristy Lee Dandridge made similar observations and immediately went to the victim's assistance. She then went to a nearby residence to get help." 14 The Judge was satisfied beyond reasonable doubt that Ms Harriss had made her way onto the roadway from the kerb crossing in the same manner as her two friends when she attempted to turn and retreat in the direction of the kerb, and in that manoeuvre she was struck by the car. 15 As to the second count his Honour said: " The jury's verdict meant that despite the offender being aware his car had impacted on its front nearside with Ms Harriss, sending her up onto and along the bonnet, aerial and left front windscreen pillar, and causing him to slow his vehicle, he nevertheless made a conscious decision not to stop and render assistance." 16 Prior to the collision the applicant had consumed five schooners of beer at a club and two stubbies of Tooheys Extra Dry at the home of his former de facto wife. Dr Judith Perl, a pharmacologist, had given evidence during the trial that the applicant's minimum blood alcohol reading at the time of the collision would have been 0.1 grams per 100 millilitres of blood. The Judge was satisfied beyond reasonable doubt that the applicant was the driver of the vehicle at the time of the impact and was driving in a manner dangerous as a result of a combination of factors: " 1. He was driving under the influence of alcohol so that he lacked the full capacity to control and manage his motor vehicle; 2. That he drove at an excessive speed along the street given the 50 kilometre [per hour] speed limit; 3. That he failed to keep a proper lookout, not slowing for Ms Brown and Mr Lenartas as they had to hurry on out of his path before the car struck Ashleigh Harriss." 17 Ms Harriss was 16 years old when she died. Subjective circumstances 18 The Judge made findings concerning the subjective circumstances of the applicant which were taken into account as mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. His Honour found that the applicant: (a) was 33 years old at the time of the offence and was at sentence 35 years old; (b) had no prior criminal history and what could only be described as a relatively minor traffic record; (c) was a person of prior good character; (d) was unlikely to re-offend; (e) had good prospects of rehabilitation which his Honour said "must be so given his prior good character, his previous work record and the continued support of his family." 19 A reference tendered to the Judge disclosed that the applicant had been employed by M & E Engineering Proprietary Limited since May 2005 and had an exemplary work history. He was described by the managing director of the company as a conscientious, pleasant, reliable and valued team member who would be offered employment when the matter resolved. 20 It had been the applicant's case at trial that he was not the driver of the vehicle which had collided with Ms Harriss. During the proceedings on sentence, the applicant's counsel informed the Judge that "there is no remorse in this case and my instructions have never changed." The Judge found that the applicant "continued to exhibit a lack of remorse." Dealing with the appeal Ground 1: The learned sentencing Judge erred by imposing "double punishment" in finding that the offence of dangerous driving occasioning death was aggravated by the fact that the applicant failed to stop after the accident which constituted the gravamen of the second offence for which he fell to be sentenced specifically failing to stop after an accident. 21 The Judge considered on the first count the guideline judgment in R v Whyte (2002) 55 NSWLR 252; 134 A Crim R 53 and made reference to the aggravating factors in Whyte. His Honour found in the present case: "… that the offender was driving under the influence, that speed was a factor, that Ms Harriss, Ms Brown and Mr Lenartas were all at risk and that the offender failed to stop. " (italics added) 22 And further: " When scrutinising the present facts, with particular reference to the abovementioned aggravating factors, my assessment is that the offender has abandoned responsibility for his conduct so that his moral culpability was high." 23 The core of the applicant's complaint is that in regarding failing to stop as a matter of aggravation in his consideration of the first count, his Honour offended the principles against double punishment. The applicant pointed out that the offence of failing to stop contrary to s 52AB of the Crimes Act was introduced by the Crimes Amendment (Road Accidents) (Brendan's Law) Act 2005 on 13 February 2006 whereas the Whyte guideline was delivered on 20 August 2002. It was submitted that in any case where the offence of failing to stop contrary to s 52AB of the Crimes Act is prosecuted on indictment, Whyte has been superseded with respect to the list of aggravating factors and regard ought not to be had to "failure to stop". To do otherwise incurs, the applicant submitted, the real risk that the offender will be doubly punished. What has happened, the applicant contended, is that the error complained of has had the effect of increasing the objective seriousness of the first count and yet the criminality of the action is wholly reflected in the second count. He has, in other words, suffered double punishment. 24 The Crown argued that this is not an instance where the applicant has been doubly punished for a single act. There is not, the Crown contended, a common element in the offences an act which both the sentences imposed could be said to punish. They were distinct offences with different elements. The convictions were for separate violations, the first of the community's right to punish those who drive in a manner which is dangerous, in the second the focus is society's abhorrence to those who injure their fellow citizens and then abandon them to die. The Crown submitted that the legislative purpose behind the enactment of s 52AB(1) is not merely to punish the failure to stop, but also the failure to render assistance. 25 During the proceedings on sentence, no submission was made by the Crown that the failure to stop was to be taken into account as an aggravating factor on the first count. The Crown's submission before the Judge was confined to the speed of the vehicle, the number of persons at risk and the degree of intoxication. It is, however, well established that the Crown is not bound on an appeal by the position taken by a Crown Prosecutor in the court below: Ahmad v Regina [2006] NSWCCA 177; R v Allpass (1993) 72 A Crim R 561. 26 "Failing to stop" and "Degree of sleep deprivation" were added by Spigelman CJ at [217] in Whyte to the list of aggravating factors for offences contrary to s 52A(1) and s 52A(3) of the Crimes Act which had been identified at [231 B-C] in the guideline in R v Jurisic (1998) 45 NSWLR 209, 101 A Crim R 259. After Whyte these factors are: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop. 27 As was said by Mason P at [33-34] in R v Errington 157 A Crim R 553: " These factors engaged the second limb of the guideline in R v Jurisic as reformulated in Whyte at [228] – [229] as follows: 228. In the above list of aggravating factors, items (iii) – (xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion. 229. The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. The nine identified factors refer to the conduct of the offender, as distinct from background subjective factors. Speaking of them, Spigelman CJ said (in Jurisic at 231; 277, restated in Whyte at [218]): The presence of these latter factors may indicate that the offender may have abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence." 28 In the present case, the presence of the failure to stop was identified by the Judge in combination with the applicant's degree of intoxication, the degree of speed and the number of people who had been put at risk as indicating that the applicant had abandoned responsibility for his own conduct. His Honour determined that the applicant's moral culpability for the offence was high. 29 The High Court in Pearce v The Queen (1998) 194 CLR 610 considered the issue of double punishment. The indictment charged the offender with maliciously inflicting grievous bodily harm contrary to s 33 of the Crimes Act and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him contrary to s 110 of the Crimes Act. McHugh, Hayne and Callinan JJ stated (at 623 [40]): "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common." And (at 623 [42]): "It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straighforward. It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics. The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act." 30 It was the single act of inflicting grievous bodily harm for which the offender was doubly punished in Pearce. 31 In Dudko (2002) 132 A Crim R 371 this Court dealt with the issue of double punishment. The appellant had been charged with rescuing an inmate in lawful custody by force contrary to s 32 of the Correctional Centres Act 1952 and assaulting a member of a crew of an aircraft contrary to s 206(a) of the Crimes Act. The first charge, 'rescue by force' involved conduct that was the subject of the assault, the second charge. The appellant argued that because a single act of force was common to both the rescue of the inmate and the assault on the pilot, there was a resulting "double conviction" or "double punishment". Spigelman CJ with whom Simpson J and Blanch AJ agreed said at [109]: " So here the gist or gravamen of the offence under s 32 of the Correctional Centres Act is the rescue, whereas the gist or gravamen of the offence under s 206 of the Crimes Act is the diversion of a pilot from his functions and duties, that is, the hijack. That the element of force in one and the element of assault in the other was, apparently, said to be constituted by the same conduct, does not detract from the proposition that there were two quite distinct offences. In my opinion, there was no double conviction or double punishment." And at [113]: "As I have indicated above, the gravamen of the two offences in this case was quite distinct. Although both offences carried maximum penalties of 14 years, in one case the focus was on a rescue by force and in the other case, on a hijack by threat. Even though the force and the threat was constituted by the same act, it cannot be concluded in this case, unlike Pearce , that the appellant has been 'doubly punished for a single act'. In Pearce, the single act was the infliction of grievous bodily harm. That was much more than simply an element of the offence, it was the gist or gravamen of the criminal behaviour. In the present case the gist or gravamen of the criminal behaviour was not the same in the two offences. In my opinion it is not correct to say that there was a double punishment on the facts of this case." 32 For an offence contrary to s 52A(1)(c) the act which constitutes the offence is the driving of a vehicle at the time of the impact causing death in a manner dangerous to another person. The gravamen of the offence has been identified as being "…not just dangerous driving, but doing so in association with the causing of death of one human being": Mason P in Errington at [45]; see also R v Hallacoglu (1992) 29 NSWLR 67 at 75; 63 A Crim R 287 at 294. A failure to stop is not a necessary element of the offence nor does the section contain any provision for punishment for it. Where the facts disclose in an offence of driving in a manner dangerous causing death (or inflicting grievous bodily harm) a failure to stop, the relevance of that factor is confined to an assessment of the abandonment of responsibility (moral culpability) by the offender. It was in this way that the Judge considered on the first count the failure to stop in combination with the degree of intoxication, the degree of speed and the number of people who had been put at risk. 33 For a s 52AB(1) offence, the relevant acts which constitute the offence are the failure to stop and give any assistance necessary that is in the driver's power to give. The failure to stop is a necessary element of the offence. It is the failure to stop and give assistance in circumstances which the driver knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning death or grievous bodily harm that is the gravamen of this offence. 34 The gravamen of the criminal behaviour in the two offences is not the same. This is not a case where the applicant has suffered double punishment for a single act. In my opinion, the first ground of appeal has not been established. Ground 2: The sentences imposed were manifestly excessive. 35 The applicant contended that the sentence imposed on each count was manifestly excessive. It was argued in respect of the first count that the sentence was double that of the guideline in Whyte. 36 Spigelman CJ said at [229] in Whyte: "The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 for the typical case identified above should be: 'Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.'" 37 The guideline of a head sentence of not less than three years (in the case of death) is postulated on the characteristics of a typical case which include "genuine remorse" and a "plea of guilty of limited utilitarian value": Spigelman CJ in Whyte at [204]. In the present case the applicant had pleaded not guilty and no remorse was demonstrated. As the Chief Justice emphasised in Whyte at [232] the guideline is a "guide" or a "check" and the sentence imposed "in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act". Each case depends on its own circumstances. 38 In the present case, the applicant whilst driving under the influence of alcohol and at an excessive speed caused the fatal injuries to Ms Harriss. His moral culpability was of a high order. The maximum penalty for the offence is imprisonment for 10 years. The Judicial Commission sentencing statistics as well as a number of sentences imposed in other cases to which the Court was referred do not persuade me that the sentence was manifestly excessive. The sentence imposed for the first count was, in my opinion, within the discretionary range open to his Honour. 39 The applicant submitted that the sentence imposed for the second count was manifestly excessive. I reject this argument. The Judge found that the impact of the vehicle sent Ms Harriss up onto and along the bonnet, aerial and left front windscreen pillar causing the applicant to slow his vehicle. Notwithstanding the force of the impact the applicant made the decision not to stop and render assistance to her. Ms Harriss had sustained a deep impact injury to the left thigh causing the fracture of her pelvis in several places and fatal head injuries. 40 It was next contended by the applicant that the Judge failed to consider the issue of totality with the result that the ultimate sentence was manifestly excessive. 41 During the proceedings on sentence, the Judge informed counsel that there would be a partial accumulation of sentences to which the applicant's counsel responded: "… I can't argue for better than that." His Honour in his sentencing remarks expressly referred to the principle of totality and determined that there was a need for "some accumulation". As a result of the partial accumulation on the sentence imposed for the first count, the effective non-parole period for the second count was 12 months. It is evident that his Honour carefully considered the issue of totality. 42 In my view, the overall sentence, although a stern sentence, was within a permissible sentencing range. 43 I propose that leave to appeal be granted but the appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.