Citation: R v Michael John Shumack [2007] NSWDC 254
Court: District Court of New South Wales
Date: 3 December 2007
Judge(s): Conlon SC DCJ
Background
The offender was convicted after trial of two counts: dangerous driving occasioning death and failing to stop and assist after a vehicle impact causing death, both offences under the Crimes Act 1900 (NSW). A jury returned guilty verdicts on 15 October 2007 following a trial in the Wollongong District Court. The sentencing judgment was delivered on 3 December 2007.
On the afternoon and evening of 15 September 2006, the offender consumed a substantial quantity of alcohol before driving his silver Ford XR8 through a residential area in Horsley. At approximately 7.43pm, he struck pedestrian Ashleigh Harriss on Horsley Drive as she attempted to cross the road. She suffered fatal pelvic and head injuries. Witnesses observed the vehicle travelling at high speed along the centre of the road and saw it brake briefly after the collision before accelerating away.
The offender denied being the driver. He constructed a false alibi and told police a fabricated story involving two strangers who had taken his vehicle for a test drive. The sentencing judge rejected this account entirely and found beyond reasonable doubt that the offender was the driver at the time of impact.
Legal Issues
- Whether the combination of alcohol consumption, excessive speed, and failure to keep a proper lookout established dangerous driving under s 52A(1)(c) of the Crimes Act 1900 (NSW)
- The appropriate sentence for dangerous driving occasioning death and failing to stop and assist after causing death, taking into account objective seriousness, moral culpability, and the offender's personal circumstances
- Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the balance of sentence
- Whether some accumulation of the two sentences was warranted, and how the principle of totality applied
Decision
The sentencing judge was satisfied beyond reasonable doubt that the offender drove dangerously due to three concurrent factors: a blood alcohol level estimated at a minimum of 0.1 grams per 100 millilitres, excessive speed in a 50 km/h residential zone, and a failure to keep a proper lookout. Expert evidence from Dr Judith Perl established that at a blood alcohol level of 0.1, impairment of perception, judgment, decision-making, and coordination was well established. Witnesses confirmed the vehicle was travelling fast and did not slow as pedestrians crossed the road.
The objective seriousness of the offences was treated as high. The judge identified the combination of speed and alcohol as aggravating factors and noted that the failure to stop after the collision was a serious and separate wrong. Against this, the judge accepted several mitigating factors, including the offender's lack of prior criminal history, prior good character, strong family support, and good prospects of rehabilitation. However, these mitigating factors were substantially undermined by the offender's persistent denial that he was the driver, his construction of a false alibi, and his consequent lack of remorse.
The judge found special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW), principally because this was the offender's first custodial sentence and his rehabilitation prospects were assessed as good. This justified varying the standard ratio between the non-parole period and the additional term. Some accumulation of the sentences was considered appropriate given the two separate offences, but the principle of totality was applied to ensure the overall sentence remained proportionate.
Orders Made
- Count 1 (dangerous driving occasioning death): non-parole period of 4 years, commencing 15 October 2007 and expiring 14 October 2011, with an additional term of 2 years expiring 14 October 2013
- Count 2 (fail to stop and assist after vehicle impact causing death): non-parole period of 3 years, commencing 15 October 2009 and expiring 14 October 2012, with an additional term of 2 years expiring 14 October 2014
- Earliest parole eligibility: 14 October 2012
- Automatic licence disqualification of 3 years, commencing 28 September 2006
- Two matters on the s 166 certificate withdrawn and dismissed
Key Takeaways
- A conviction for dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW) can rest on a combination of factors, here alcohol impairment, excessive speed, and failure to keep a proper lookout, without requiring any single factor to be decisive on its own.
- Where an offender maintains a false denial of involvement throughout trial and into sentencing, the absence of remorse is a significant factor that limits the mitigating weight otherwise available from prior good character and rehabilitation prospects.
- The District Court confirmed that a failure to stop and assist after causing death is treated as a distinct and serious offence warranting a separate, partially accumulated sentence rather than full concurrency.
- Special circumstances justifying a departure from the standard non-parole ratio were found on the basis of a first custodial sentence combined with positive rehabilitation prospects, even where the offender showed no remorse.
- Expert pharmacological evidence about minimum blood alcohol levels, based on proved consumption rather than a breath or blood test, was accepted as sufficient to establish alcohol-related impairment at the time of the offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c) and 52AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, and 21A(3)
- Crimes Amendment (Road Accidents) Bill (referenced in context)
Cases:
- R v Errington (2005) 147 ACR 553
- R v Khatter [2000] NSWCCA 32
- R v Whyte (2002) 55 NSWLR 252
- R v Previtera (1997) 94 ACR 75
- R v Bollen (1998) 99 ACR 510