Lutz v McCormack
[2018] ACTSC 66
•14 March 2018
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 a weighing exercise and then substitute its own discretion for that of the sentencing court.
The last quoted passage raises the primary difficulty faced by the appellant in this case. The appellant has submitted that the Magistrate made an error in assessing the objective seriousness of the offence as being at the “very lowest end”. The transcript does, however, reveal that, before the Magistrate, the prosecutor made this statement:
I don’t cavil with my friend’s submission and your Honour has already commented this is at the lower end of objective seriousness and it is a really unfortunate event. The defendant clearly is a person of good character of otherwise good character. (T 20.15)
It is almost impossible for me to identify error in a finding when that finding was the subject of an agreement. The error would have to be so fundamental that I would need to overlook the standard approach taken in these matters in order to overrule it. Even accepting the seriousness of the injury suffered by Mr Cole, I do not think that I can identify the finding as being obviously wrong on the facts.
In De Jesus v The Queen (1986) 61 ALJR 1, Mason and Deane JJ commented at 10 – 11:
Indeed, it is difficult to see how a party can even argue that a trial judge’s exercise of discretion miscarried, let alone that there was a substantial miscarriage of justice, by reason of a failure to give weight or sufficient weight to a factual matter of which the trial judge was deliberately kept in ignorance by that party.
By analogy, it is difficult to see how the appellant can suggest error on the Magistrate’s part when the appellant endorsed the finding that it now challenges.
This is a convenient point for me to comment on the appellant’s submission that driving slowly was effectively an aggravating feature. I think the contrary is the case. The matter would have been significantly more serious if the respondent had driven quickly out of her driveway on to the roadway. Driving in a slow fashion bespeaks an intention to be more careful. The respondent made an error of judgment. That is beyond question and was the basis for the finding of negligence. I do not however see that the slow pace at which she drove was an aggravating factor, essentially as argued by the appellant.
The appellant submitted that an important distinction with crimes of intention was that the legislature intended that a want of care should be punished, primarily as a matter of general deterrence. I agree with the Crown to the extent that it is particularly important that road users are made aware that negligent driving, especially where it causes harm to another person, is likely to result in punishment.
Courts should not approach these types of cases on the basis that the driver was momentarily inadvertent or ‘it could happen to anyone’. There must be punishment in an environment where negligent driving is not only so prevalent but also so productive of injury and loss.
Another point made by the appellant was that the leniency usually attributed to good character is of lesser importance in this type of matter as good character is not an uncommon feature of persons who are charged with driving offences. Again, I generally agree with the appellant, but note that once again the appellant agreed with the assessment of good character before the Magistrate and, more importantly, the assessment of good character was not only dependent on the respondent’s criminal record. There was also evidence of her contribution to the community entitling her to a favourable assessment when considering leniency.
I also note that the respondent did not leave the court without any sanction. She was placed on a Good Behaviour Order for 12 months.
As I have already said, if I had heard this matter I would have taken a different approach. I would not have given the respondent the benefit of s 17. However, where I am bound to firstly identify error and then reach a conclusion of manifest inadequacy, there needs to be significantly more than is available to the appellant here.
Accordingly, the appeal is dismissed.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 14 March 2018 |
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