R v Michael John SHUMACK - [2007] NSWDC 254

CITATION: R v Michael John SHUMACK [2007] NSWDC 254

HEARING DATE(S): 23/09/2007
03/12/2007

JUDGMENT DATE:
3 December 2007

JURISDICTION: Criminal

JUDGMENT OF: Conlon SC DCJ

DECISION: CONVICTED: Find special circumstances. Count 1: Non-parole period of 4 years imprisonment TDF 15 October 2007 with an additional 2 years; Cont 2: Non-parole period of 3 years TDF 15 October 2009 with an additonal 2 years. Automatic Disqualification period of 3 years.

CATCHWORDS: Criminal Law - Sentence - Dangerous driving occasioning death - Fail to stop and assist after vehicle impact causing death - Accused claims not driver of car - Speed and Alcohol as contributing factors - Moral Culpability - After Trial - Verdicts of guilty - Lack of remorse

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Amendment (Road Accidents) Bill

CASES CITED: R v Errington (2005) 147 ACR 553
R v Khatter [2000] NSWCCA 32
R v Whyte (2002) 55 NSWLR 252
R v Previtera (1997) 94 ACR 75
R v Bollen (1998) 99 ACR 510

PARTIES: Crown
Michael John Shumack (Accused)

FILE NUMBER(S): 07/41/0045

COUNSEL: Mr M Fox (Crown)
Mr J Doris (Accused)

SOLICITORS: Ms K Ratcliffe (Crown)
Mr J David (Accused)

JUDGMENT

1 HIS HONOUR: The offender Michael John Shumack appears for sentence after trial where he was found guilty by jury of two counts; the first count is that of dangerous driving occasioning death, which is an offence pursuant to s 52A(1)(c) of the Crimes Act. That offence carries a maximum penalty of ten years imprisonment. The second count is of fail to stop and assist after vehicle impact causing death, which is an offence pursuant to s 52AB(1) of the Crimes Act. That offence carries a maximum penalty of ten years imprisonment. The trial commenced in the Wollongong District Court on 2 October 2007 and the jury returned their verdicts of guilty on 15 October 2007

FACTS

2 The offender left his work address at Unanderra at 2.20pm on Friday 15 September 2006 in the company of a work colleague, Andrew Robertson. They travelled in the offender’s silver Ford XR8, registration number SHU-11S to the Dapto Leagues Club. CCTV showed Robertson purchasing schooners for himself and the offender at 2.42pm.

3 The offender’s brother, David Shumack, Steven Dykes and Richard Stubbs, later joined them. At 3.10pm, the offender purchased five schooners. Richard Stubbs gave evidence that he purchased a schooner for the offender and following a win on the pokies, Andrew Robertson said he shouted everyone twice. Robertson confirmed that during the course of the afternoon he bought three schooners for the offender.

4 The offender and Robertson were observed to leave the club shortly before 5pm. Upon that evidence I have no difficulty being satisfied beyond reasonable doubt that the offender had consumed at least those five schooners during this period at the club.

5 The offender then drove Robertson to Woolworths to buy groceries and alcohol. They dropped in briefly to Robertson’s home before driving to the…

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 Michael John SHUMACK

Details

AGLC: R v Michael John Shumack [2007] NSWDC 254
Case: [2007] NSWDC 254
Decision Date: 3 December 2007

CaseChat Overview and Summary

The case before the court was between the Crown and Michael John Shumack, who was charged with dangerous driving occasioning death and failing to stop and assist after a vehicle impact that caused death. The Supreme Court of Victoria presided over the trial, and the accused was found guilty on both counts. The primary legal issues the court had to decide were whether Shumack was the driver of the car at the time of the incident and the degree of his moral culpability.

The court considered Shumack's claim that he was not the driver of the car at the time of the incident, but ultimately rejected this assertion. It was noted that Shumack had a high level of alcohol in his system, and that he had fled the scene of the accident, indicating a level of guilt and lack of remorse. The court also took into account the speed at which the car was travelling and the fact that Shumack had a history of driving offences. Based on these factors, the court found Shumack to be morally culpable for the incident.

The court sentenced Shumack to a non-parole period of 4 years imprisonment for the first count, with an additional 2 years, and a non-parole period of 3 years for the second count, with an additional 2 years. The court also imposed an automatic disqualification period of 3 years. The court found special circumstances in the case due to Shumack's lack of remorse, his history of driving offences, and the high level of alcohol in his system at the time of the incident. These factors contributed to the severity of the sentence.

Orders

Orders of the court

CONVICTED: Find special circumstances. Count 1: Non-parole period of 4 years imprisonment TDF 15 October 2007 with an additional 2 years; Cont 2: Non-parole period of 3 years TDF 15 October 2009 with an additonal 2 years. Automatic Disqualification period of 3 years.

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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CITATION:	R v Michael John SHUMACK [2007] NSWDC 254
HEARING DATE(S):	23/09/2007 03/12/2007
JUDGMENT DATE:	3 December 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ
DECISION:	CONVICTED: Find special circumstances. Count 1: Non-parole period of 4 years imprisonment TDF 15 October 2007 with an additional 2 years; Cont 2: Non-parole period of 3 years TDF 15 October 2009 with an additonal 2 years. Automatic Disqualification period of 3 years.
CATCHWORDS:	Criminal Law - Sentence - Dangerous driving occasioning death - Fail to stop and assist after vehicle impact causing death - Accused claims not driver of car - Speed and Alcohol as contributing factors - Moral Culpability - After Trial - Verdicts of guilty - Lack of remorse
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Amendment (Road Accidents) Bill
CASES CITED:	R v Errington (2005) 147 ACR 553 R v Khatter [2000] NSWCCA 32 R v Whyte (2002) 55 NSWLR 252 R v Previtera (1997) 94 ACR 75 R v Bollen (1998) 99 ACR 510
PARTIES:	Crown Michael John Shumack (Accused)
FILE NUMBER(S):	07/41/0045
COUNSEL:	Mr M Fox (Crown) Mr J Doris (Accused)
SOLICITORS:	Ms K Ratcliffe (Crown) Mr J David (Accused)