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Court of Criminal Appeal 16 December 2008

Shumack v R

[2008] NSWCCA 311

Also reported as 191 A Crim R 513
HomicideTraffic & driving
CRIMINAL LAW SENTENCING WHYTE GUIDELINE WHETHER DOUBLE PUNISHMENT

Citation: Shumack v R [2008] NSWCCA 311
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2008
Judge(s): Hodgson JA, James J, Price J

Background

The appellant was convicted after a two-week jury trial of two offences arising from a single incident on 15 September 2006. While driving on Horsley Drive after consuming alcohol, he struck a pedestrian, Ashleigh Harriss, at high speed. Witnesses observed the vehicle's brake lights activate briefly before it sped away.

Ms Harriss sustained catastrophic injuries, including multiple pelvic fractures and fatal head injuries. The appellant was found to have known his vehicle had struck a person but made a conscious decision not to stop and render assistance.

In the District Court, the appellant was sentenced to a total effective term of seven years imprisonment with a five-year non-parole period, achieved by partial accumulation of the two sentences. He applied to the Court of Criminal Appeal for leave to appeal against the severity of those sentences.

  • Whether the sentencing judge had impermissibly engaged in "double punishment" by treating the appellant's failure to stop as an aggravating factor for the dangerous driving offence, when that same failure constituted the separate offence for which he was also sentenced
  • Whether the sentences imposed on each count were individually manifestly excessive
  • Whether the sentencing judge adequately applied the totality principle when partially accumulating the two sentences

Decision

On the double punishment ground, the Court rejected the appellant's argument. Hodgson JA, with whom James J and Price J agreed, reasoned that the moral culpability of an offender convicted of dangerous driving varies greatly depending on the circumstances. A driver who flees the scene of a fatal accident demonstrates that the dangerous driving was not a momentary aberration but rather conduct carried out in disregard for the law and for the safety of others. Treating the failure to stop as indicative of that higher moral culpability was a permissible sentencing consideration, not a form of double punishment. Even where panic might explain the flight, it remained a relevant indicator of the character of the primary offending.

On manifest excess, Price J (with whom the other judges agreed) found the sentence for the first count was within the available discretionary range. The appellant had been driving whilst under the influence of alcohol and at excessive speed, placing his moral culpability at a high level. Reference to Judicial Commission statistics and comparable cases did not support a finding that the sentence exceeded what was open.

The sentence for the failing to stop count was also upheld. The Court noted the severity of the impact and the deliberate decision not to render any assistance to a person who had sustained fatal injuries. On totality, the sentencing judge had expressly addressed the principle and applied partial accumulation, resulting in an effective non-parole period for the second count of only 12 months. The appellant's own counsel at the sentencing hearing had acknowledged the partial accumulation was acceptable. The Court found the overall sentence, while stern, fell within a permissible range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may treat an offender's failure to stop after a fatal collision as evidence of the moral culpability attending the dangerous driving offence, without that constituting double punishment, provided the failure is used only to illuminate the character of the primary offending rather than to punish it twice.
  • Where panic is offered to explain flight from a fatal accident scene, the Court of Criminal Appeal confirmed this may reduce the weight given to the departure but does not strip it of relevance as an indicator of moral culpability.
  • In dismissing the appeal, the court affirmed that the R v Whyte guideline operates as a check or guide, not a formula, and that the sentence in any individual case turns on all relevant factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.
  • Sufficient engagement with the totality principle was established where the sentencing judge expressly referred to it and structured partial accumulation accordingly, even where the resulting overall sentence was a stern one.
  • Under s 52A(1)(c) and s 52AB(1) of the Crimes Act 1900, separate and partly cumulative terms were upheld as appropriate where the conduct underlying each offence was factually and morally distinct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52AB(1), 206(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Correctional Centres Act 1952 (NSW), s 32
- Crimes Amendment (Road Accidents) (Brendan's Law) Act 2005 (NSW)

Cases
- R v Whyte (2002) 55 NSWLR 252
- R v Jurisic (1998) 45 NSWLR 209
- Pearce v The Queen (1998) 194 CLR 610
- Ahmad v Regina [2006] NSWCCA 177
- R v Hallacoglu (1992) 29 NSWLR 67
- R v Errington 157 A Crim R 553
- R v Allpass (1993) 72 A Crim R 561
- Dudko (2002) 132 A Crim R 371