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Court of Criminal Appeal 19 April 2012

Lute v R

[2012] NSWCCA 67

Traffic & driving
CRIMINAL APPEAL SENTENCE S 52A(1)(C) CRIMES ACT 1900 (NSW)

Citation: Lute v R [2012] NSWCCA 67
Court: Court of Criminal Appeal, NSW
Date: 19 April 2012
Judge(s): Whealy JA; Blanch CJ at DC; Beech-Jones J

Background

The appellant had been convicted in the District Court at Taree of driving in a manner dangerous causing death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). He pleaded guilty on the day of trial, receiving a 15% discount for the utilitarian value of that plea. The sentencing judge imposed a total sentence of three years and nine months, with a non-parole period of two years and three months.

The offence arose from an incident in which the appellant drove his vehicle well in excess of the 60 km/h speed limit while intoxicated. The vehicle crossed double unbroken lines, left the roadway, and struck a fence and a large gum tree. The appellant's passenger, a friend, died from injuries caused when fence railings impaled him. The appellant also sustained serious injuries.

The appellant sought leave to appeal his sentence on a single ground: that the sentencing judge had wrongly treated the death of the passenger as an aggravating feature, when death is in fact an element of the offence itself.

  • Whether the sentencing judge erred by treating the fact of the deceased's death as an aggravating feature in sentencing for the offence of driving in a manner dangerous causing death under s 52A(1)(c) of the Crimes Act 1900 (NSW), an offence for which death is a definitional element.
  • If such error was established, whether the sentence should nevertheless be confirmed under s 6(3) of the Criminal Appeal Act 1912 (NSW) on the basis that no lesser sentence was warranted in law.

Decision

Whealy JA, with whom Blanch CJ at DC and Beech-Jones J agreed, found no error in the sentencing judge's remarks. Reading the relevant passage in context, his Honour concluded that the sentencing judge had not treated death as an aggravating feature. Rather, she had been working through the factors identified in the guideline judgment of R v Whyte and noting, as a finding of fact, that the passenger had died virtually instantaneously.

This reading was confirmed by the sentencing judge's subsequent identification of aggravating features, which were limited to excessive speed and the level of intoxication. The death of the passenger was not listed among those aggravating features. The Court found the remarks, taken as a whole, to be thorough and comprehensive, disclosing no appellable error.

The Court went on to consider what the position would be if the appellant had established error. Applying s 6(3) of the Criminal Appeal Act 1912 and the approach in R v Simpson, the Court held that no lesser sentence was warranted in law. Given the seriousness of the offence, characterised by apparent excessive speed and significant intoxication, the sentence imposed was appropriate, notwithstanding the appellant's demonstrated remorse, his own serious injuries, and other subjective circumstances in his favour.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Death is an element of the offence under s 52A(1)(c) of the Crimes Act 1900 (NSW), and treating it as a separate aggravating feature in sentencing would constitute legal error.
  • No such error was established here: the Court of Criminal Appeal found the sentencing judge had referred to the instantaneous death as a factual observation, not as an aggravating feature, and had separately identified excessive speed and intoxication as the true aggravating factors.
  • A sentencing judgment must be read as a whole; an isolated passage will not be taken out of context to establish error if the overall remarks disclose a correct approach.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), even where a sentencing error is established, the appellate court will not intervene unless a lesser sentence is warranted in law.
  • In dismissing the appeal, the Court confirmed that the combination of excessive speed and significant intoxication made this a very serious offence, capable of sustaining a sentence of the severity imposed despite genuine mitigating factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252