Lute v The Queen

[2012] NSWCCA 67

Court of Criminal Appeal

New South Wales

Case Title:	Lute v R
Medium Neutral Citation:	[2012] NSWCCA 67
Hearing Date(s):	19 April 2012
Decision Date:	19 April 2012
Jurisdiction:
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
Texts Cited:
Category:	Principal judgment
Parties:	Michael John Lute (Applicant) Crown (Respondent)
Representation
- Counsel:	Counsel: M. Dennis (Applicant) Ms J.R. Dwyer (Respondent)
- Solicitors:	Solicitors: Legal Aid (Applicant) Director of Public Prosecutions (Respondent)
File number(s):	2009/008977
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Syme DCJ
- Date of Decision:	16 November 2010
- Citation:
- Court File Number(s)
Publication Restriction:

JUDGMENT

1. EX 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.

2. The applicant pleaded guilty on the day of trial, having earlier pleaded guilty and then withdrawn his plea.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.

3. The 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.

4. There 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.

5. Around 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.

6. The 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.

7. Mr 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.

8. The 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."

9. I 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.

10. That 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.

11. In 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.

12. I am unable to detect any error in her Honour's sentencing remarks.

13. I propose that leave to appeal be granted, but that the appeal be dismissed.

14. BLANCH CJ at DC: I agree.

15. BEECH-JONES J: I agree.

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