Lutz v McCormack - [2018] ACTSC 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Lutz v McCormack
Citation:	[2018] ACTSC 66
Hearing Date:	14 March 2018
DecisionDate:	14 March 2018
Before:	Elkaim J
Decision:	The appeal is dismissed
Catchwords:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Crown appeal against sentence – whether the sentence imposed was manifestly inadequate
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6
Cases Cited:	R v Duffy [2014] ACTCA 53; 297 FLR 359
Parties:	Travis Lutz (Appellant) Denise Marie McCormack (Respondent)
Representation:	Counsel Mr M Fernandez (Appellant) Ms P Burgoyne-Scutts (Respondent)
Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent)
File Number:	SCA 89 of 2017
Decision under appeal:	Court: Magistrates Court of the ACT Before: Special Magistrate Hunter Date of Decision: 4 December 2017 Case Title: R v McCormack Court File Number: CC 12606 of 2016

ELKAIM J:

On 7 September 2016, the respondent was turning right from her driveway onto a street in the suburb of Gordon. She was driving very slowly. As she came onto the roadway, her vehicle was struck by a motorcycle driven by a Mr Cole.

Mr Cole was injured. The respondent was charged with negligent driving occasioning grievous bodily harm.

This is an offence contrary to s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty for this offence is one year imprisonment and/or a fine of $15,000. There is also an automatic licence disqualification of three months.

On 4 December 2017, the offence was found proven by Special Magistrate Hunter. The respondent was dealt with pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT). The Magistrate also imposed a 12 month Good Behaviour Order.

The appellant filed a Notice of Appeal on 13 December 2017. The appellant submits that the sentence imposed was manifestly inadequate.

I would have imposed a different sentence to that imposed by the Magistrate. However, what I would have done is not the relevant test. The applicable principle was concisely stated by the Court of Appeal in R v Duffy [2014] ACTCA 53; 297 FLR 359 at [74]:

The question is whether the sentences that were imposed are manifestly inadequate such that they compel the inference that the sentencing judge made an error of principle in the exercise of his sentencing discretion, although no specific error can be identified.

The Court then stated at [77]:

Whether a sentencing outcome is so manifestly wrong as to compel a conclusion that the sentencing discretion has miscarried will turn on a consideration of the objective and subjective features of the case in the context of the maximum available penalty and current sentencing patterns: Islam v The Queen [2013] ACTCA 10 at [81], applying R v Campbell [2010] ACTCA 20 at [32]–[35]. The appellate court must be vigilant to ensure that, when considering these matters, it does not engage in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lutz v McCormack

Details

AGLC: Lutz v McCormack [2018] ACTSC 66
Case: [2018] ACTSC 66
Decision Date: 14 March 2018

CaseChat Overview and Summary

Lutz v McCormack involved an appeal by the Crown against the sentence imposed on McCormack, who was convicted of murder. The sentencing judge had imposed a sentence of 15 years imprisonment, which the Crown considered manifestly inadequate. The case was heard in the NSW Court of Criminal Appeal. The primary issue before the court was whether the sentence imposed was manifestly inadequate and warranted an appeal and a new sentencing hearing. The court was required to consider the principles governing appeals against sentence and the specific circumstances of the case, including the nature and circumstances of the offence, the characteristics of the offender, and the sentencing principles applicable to murder cases.

The court held that the principles governing appeals against sentence were well established and that an appeal would only be granted if the sentence was manifestly inadequate. The court examined the sentencing remarks of the trial judge and found that the judge had carefully considered the relevant principles and had imposed a sentence that was within the range of sentences that a properly directed sentencing judge could have imposed. The court concluded that the sentence was not manifestly inadequate and dismissed the appeal. The court also noted that the sentence imposed reflected the gravity of the offence and the culpability of the offender, and that it was appropriate to leave the sentence imposed by the sentencing judge undisturbed.

The Court of Criminal Appeal dismissed the Crown's appeal against the sentence imposed on McCormack. The court found that the sentence was not manifestly inadequate and that it was appropriate to leave the sentence imposed by the sentencing judge undisturbed. The court noted that the sentence reflected the gravity of the offence and the culpability of the offender, and that the sentencing judge had carefully considered the relevant principles in imposing the sentence. The appeal was therefore dismissed, and the sentence imposed by the sentencing judge remained in place.

Orders

Orders of the court

The appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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