Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lute v R [2012] NSWCCA 67 Hearing dates: 19 April 2012 Decision date: 19 April 2012 Before: Whealy JA at [1] Blanch CJ at DC at [14] Beech-Jones J at [15] Decision: (1) Leave to appeal granted. (2) Appeal dismissed Catchwords: CRIMINAL - Appeal - sentence - driving in a manner dangerous causing death - s 52A(1)(c) Crimes Act 1900 (NSW) - whether primary judge erred in regarding death as an aggravating feature. Legislation Cited: Crimes Act 1900 (NSW) - s 52A(1)(c) Criminal Appeal Act 1912 (NSW) - s 6(3) Cases Cited: - R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 - R v Whyte [2002] NSWCCA 343, 55 NSWLR 252 Category: Principal judgment Parties: Michael John Lute (Applicant) Crown (Respondent) Representation: Counsel: M. Dennis (Applicant) Ms J.R. Dwyer (Respondent) Solicitors: Legal Aid (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2009/008977 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-11-16 00:00:00 Before: Syme DCJ Judgment 1EX TEMPORE - WHEALY JA: This is an application for leave to appeal on sentence. Michael John Lute ("the applicant") was sentenced by her Honour, Judge Syme ("the sentencing judge"), on 16 November 2010 in the District Court at Taree. The applicant was sentenced with respect to one count of driving in a manner dangerous causing death. This offence is contrary to s 52A(1)(c) Crimes Act 1900 (NSW). It carries a maximum penalty of ten years imprisonment. 2The applicant pleaded guilty on the day of trial, having earlier pleaded guilty and then withdrawn his plea. Her Honour allowed a discount of 15% for the utilitarian value of the plea. 3The applicant was sentence to a non-parole period of two years and three months commencing on 16 November 2010 and to expire on 15 February 2013. The total sentence imposed was one of three years and nine months, to expire on 15 August 2014. Her Honour found special circumstances and varied the statutory ratio so that the non-parole period was about 60% of the total sentence. 4There is no dispute about the facts found by her Honour. The applicant and the deceased "Fox" (formerly known as Marcus Boyden) were friends and lived in the Gloucester area. The applicant had been drinking with a group of friends at the Roundabout Inn in Gloucester on the evening in question. About 10.30pm, the bar attendant noted signs of intoxication in the applicant and declined to serve him any further. The applicant left the hotel shortly before 11pm. 5Around 11.55pm, the applicant was driving his Holden Commodore utility in Park Street, with the deceased as his passenger. The applicant drove his utility along a 300m straight stretch of roadway that had recently been realigned and replaced with a new sealed surface. Upon reaching a long left sweeping curve in the road, he travelled across double unbroken separation lines and drove off the opposite side of the roadway. The vehicle travelled onto a grass verge, where it commenced to slide and then collided heavily with a post and rail timber fence. The vehicle continued through the fence, eventually colliding with a large gum tree. Tragically, the deceased had been impaled by some of the fence railings. The applicant himself received serious injuries in the accident. The police were unable to establish the exact speed at which the vehicle was being driven at the time of the accident. There was police opinion, however, that the speed of the vehicle was "well in excess" of the prevailing 60kmh. 6The sole ground of appeal relied on is that the sentencing judge erred in regarding death as an aggravating feature when sentencing for an offence of driving in a manner dangerous causing death. 7Mr Dennis of counsel for the applicant submitted, correctly, that in relation to the present offence the fact of death is, of course, an element of the offence. Had her Honour regarded the fact of death as an aggravating feature, this would have been an error. 8The relevant passage on which reliance is placed appears at a portion of her Honour's thorough and comprehensive remarks on sentence, where she had been examining the guideline judgment in R v Whyte ([2002] NSWCCA 343; 55 NSWLR 252). Her Honour said: "Whyte's case, in discussing what is a typical case, also referred to some potential areas of the facts where there could be aggravating features and some of those features exist in Mr Lute's position. Firstly, the extent and nature of the injuries inflicted. Fox's death was virtually instant, as far as I can ascertain, but of course that is the ultimate injury to another human being. The Court must also take into account when considering aggravating features the number of people put at risk. There was only one passenger in the car, the deceased. However other road users were potentially put at risk." 9I am not satisfied that the sentencing judge fell into the error that is the substance of the ground of appeal. When the extract I have quoted is read in context it will be seen that her Honour was doing no more than itemising a number of the features set out in the guideline judgment in Whyte. In that decision this Court considered the offence both in respect of death and in relation to grievous bodily harm. It is clear that her Honour was saying no more than that the deceased died virtually instantaneously, as a finding of fact. 10That this is so appears quite clearly from the decision read as a whole. For example, in making her findings subsequently as to the aggravating features of the offence, she cited excessive speed and the level of intoxication. She did not include the fact of the death of the applicant's passenger. 11In any event, if I were wrong in the conclusion I have reached, I would nevertheless find that the applicant has not demonstrated that a lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912 (NSW); R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [79] and [100]. Given the amount of alcohol consumed and the apparent speed at which the vehicle was being driven, this was a very serious offence. While it is true that the applicant had clearly demonstrated remorse, had suffered serious injuries himself, and generally had a number of subjective circumstances in his favour, a sentence of the severity of that imposed was required. 12I am unable to detect any error in her Honour's sentencing remarks. 13I propose that leave to appeal be granted, but that the appeal be dismissed. 14BLANCH CJ at DC: I agree. 15BEECH-JONES J: I agree. ********** 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. Decision last updated: 24 April 2012