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R v Loeschnauer

R v Loeschnauer

Case [2022] ACTSC 30 25 February 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Loeschnauer
Citation:	[2022] ACTSC 30
Hearing Date:	1 and 18 February 2022
DecisionDate:	25 February 2022
Before:	McWilliam AJ
Decision:	See [87]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – culpable driving causing death – driving with alcohol in blood – driving with prescribed drug in blood – plea of guilty – high level of moral culpability – remorse
Legislation Cited:	Corrections (Management) Act 2007 (ACT) s 53 Crimes Act 1900 (ACT) s 29 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35, 35A, 36, 49 Crimes (Sentencing) Amendment Bill 2013 (ACT) Crimes (Sentencing Procedure) Act 1999 (NSW) s 22A Crimes (Restorative Justice) Act 2004 (ACT) ss 6, 19, 46 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 19, 20
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Coggan v R [2013] ACTCA 49 Cranfield v The Queen [2018] ACTCA 3 DPP v DJK [2003] VSCA 109 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Kelly v Ashby [2015] ACTSC 346 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v AB [2011] NSWCCA 229 R v Billington [2014] ACTSC 350 R v Creighton (Supreme Court of the ACT, Refshauge J, 28 October 2010) R v Daniel (No 2) [2021] ACTSC 117 R v Facer [2020] ACTSC 342 R v Forrest [2016] ACTSC 321 R v Forrest (No 2) [2017] ACTSC 83 R v Jurisic (1998) 45 NSWLR 209 at 231 R v Kekalainen [2014] ACTSC 132 R v Kilic [2016] HCA 48; 259 CLR 256 R v Langi (No 2) [2021] ACTSC 239 R v Livas (No 2) [2020] ACTSC 116 R v Pahl (No 2) [2017] ACTSC 155 R v Peter [2019] ACTSC 22 R v Richardson [2016] ACTSC 133 R v Smith [2019] ACTSC 65 R v Swift [2007] VSCA 52; 15 VR 497 R v Whyte and Ors [2002] NSWCCA 343; 55 NSWLR 252 R v Wolter (No 3) [2015] ACTSC 321 Veen v The Queen (No 2) (1988) 164 CLR 465
Parties:	The Queen (Crown) Peter James Loeschnauer (Offender)
Representation:	Counsel P Dixon ( Crown) J Pappas ( Offender)
Solicitors ACT DPP ( Crown) Hugo Law Group ( Offender)
File Number:	SCC 228 of 2021 SCC 229 of 2021

McWilliam AJ:

Before the Court for sentence is Peter James Loeschnauer (the offender), who has pleaded guilty to the following offences:

(a)CAN 9856/2021: Culpable driving causing death, contrary to s 29(2) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 14 years’ imprisonment and an automatic licence disqualification of 6 months or, if the Court…

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 R v Loeschnauer

Details

AGLC: R v Loeschnauer [2022] ACTSC 30
Case: [2022] ACTSC 30
Decision Date

CaseChat Overview and Summary

The case of R v Loeschnauer was heard by McWilliam AJ in the Supreme Court of the Australian Capital Territory. The offender, Peter James Loeschnauer, pleaded guilty to culpable driving causing death, driving with alcohol in blood, and driving with a prescribed drug in blood. The offender drove his car while heavily intoxicated and under the influence of MDMA, leading to a collision with another vehicle and the death of the other driver, Mr Lachlan Seary. The court was required to determine the appropriate sentence for the offender, taking into account various legal factors and considerations.

The court considered several legal issues in determining the sentence for Loeschnauer, including the objective seriousness of the offence, the offender's subjective circumstances, victim impact statements, and the offender's accountability. The court also assessed the offender's acceptance of responsibility through his guilty plea and participation in the restorative justice process. Additionally, the court examined the need for general and specific deterrence in this case.

In its reasoning, the court found that the objective seriousness of the offence was high due to the offender's reckless driving, high level of intoxication, and disregard for road safety. The offender's subjective circumstances, such as his stable background and lack of prior criminal history, were considered in light of the gravity of the offence. Victim impact statements from Mr Seary's family were also taken into account, highlighting the devastating consequences of the offender's actions.

The court found that Loeschnauer's early guilty plea and participation in the restorative justice process demonstrated his acceptance of responsibility. The court also recognised the utilitarian value of the offender's conduct throughout the legal proceedings. In determining the appropriate sentence, the court placed emphasis on general deterrence, acknowledging the need to denounce the offender's conduct and protect the community.

After considering all factors, the court sentenced Loeschnauer to a term of imprisonment of 5 years for culpable driving causing death, 9 months for driving with alcohol in blood, and a fine of $800 for driving with a prescribed drug in oral fluid. The court also imposed a 3-year disqualification from holding a driver's licence. The non-parole period was set at 2 years and 11 months.

In conclusion, the court imposed a sentence that reflected the gravity of the offence and the need for general deterrence, while also taking into account the offender's remorse, subjective circumstances, and participation in the restorative justice process. The sentence aims to balance the various sentencing objectives, including punishment, denunciation, and rehabilitation, while recognising the devastating impact on the victim's family.

Orders