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 IGA supermarket and returned to Robertson’s home at around 6pm.

6 The offender then drove to the home of his former de facto, Ms Tina Sweeney at 10 Silverwood Place, Horsley. At that location the offender had two bottles of Tooheys Extra Dry and a sip of Tequila and margarita mix. The evidence established that the offender left the residence at about 7.35pm or shortly thereafter. The evidence of Lisa Rogers and Jason Rogers satisfies me beyond reasonable doubt of that fact.

7 At about 7.43pm the victim, Ashleigh Harriss, had been walking along Horsley Drive, a short distance behind her two friends, Jessica Brown and Albinas Lenartas. As Ms Brown and Mr Lenartas stepped off the kerb to cross the road Ms Brown said she noticed a car at the roundabout coming towards them. She yelled out to her friends to hurry up and she commented,

“I thought we were going to get hit and that we were in danger”.

8 She said her impression was that the car was driving at high speed and it appeared to be almost going down the centre of the road. She said it only took the car seconds to get from the roundabout to where they were. She said as she saw the car approach closer she began to run a bit faster. She said she was just over half way across the road when she heard a loud noise and the shattering of glass.

9 Mrs Dandridge and her daughter, Kristy Lee Dandridge, gave evidence that they were sitting in their car parked across the road from number 31 Horsley Drive. Mrs Dandridge observed the first two young persons crossing the road and noticed a car coming down from the roundabout moving very fast. She saw the victim walk out and the car hit her. She heard two different sounds and the breaking of glass. She said the victim went up in the air and her hands went up and she went straight back.

10 She said she was expecting the driver of that vehicle to pull over. At a point approximately three to four houses down the road she noticed the vehicle’s brake lights go on for a few seconds and then the car sped off. Kristy Lee Dandridge made similar observations and immediately went to the victim’s assistance. She then went to a nearby residence to get help.

DECEASED’S INJURIES

11 Dr McBride gave evidence of a deep impact injury to the left thigh of Ashleigh Harriss causing the fracture of her pelvis in several places. The Doctor also said she had received fatal head injuries. Upon a review of the injuries Dr McBride stated that:

“The most likely scenario is the deceased moving at the time of impact, was impacted from the left side and probably had her left leg in front as she was walking, so the bumper bar has actually impacted with the middle of the right leg.”

12 He further commented that:

“She has stepped out so the vehicle is on the right. It came to her attention and she took evasive action as quick as the could, which would be to return to the kerb and she pivoted around and got struck, and we’re dealing with something that’s happened in less than half a second.”

13 Dr McBride gave evidence that the car had hit Ms Harriss “fairly close to square on”, and he could see no abrasions on the left thigh to indicate it was a swipe style contact.

14 I am satisfied beyond reasonable doubt on the evidence of the doctor that Ms Harriss had made her way onto the roadway from the kerb crossing in the same manner as her two friends when she attempted to turn and retreat in the direction of the kerb, and in that manoeuvre she was struck by the car.

OTHER FINDINGS OF FACT

15 Horsley Drive ran through a residential area and had a speed limit of 50 kilometres per hour. Police observed no skid or tyre marks on the surface of the road in the vicinity of the collision. Later inspection of the offender’s vehicle showed damage consistent with having struck the victim on the front nearside.

16 On the basis of the evidence earlier referred to of the offender having had five schooners of beer at the club and two stubbies of Tooheys Extra Dry (evenly spaced) at the home of Ms Sweeney, Dr Judith Perl gave evidence that she would have expected the minimum blood alcohol reading at the time of the collision to be 0.1 grams per 100 millilitres. She stated:

“The effects of alcohol in fact start at the cortex, so at the very low blood alcohol levels it’s the cortical area that is more effected, and as the blood alcohol level goes up the other parts of the brain become progressively more and more effected. So at very low levels you would expect things like your perceptions, judgment, decision making factors to be impaired. As the blood alcohol level increased above .08 you start to see things like slowing and slurring of speech, unsteadiness or swaying, poor coordination… so actual impairment starts at levels as low as .03 and by the time you get to .08 you can usually see signs of intoxication, but you’ve already got impairment present of the higher levels of functioning.”

17 Dr Perl reported that the impairment of one’s peripheral vision and measurable effects can be detected at .03.

18 I am satisfied on the evidence beyond reasonable doubt that the offender was the driver of the vehicle at the time of the impact. It also established that he was driving in a manner dangerous as a result of a combination of factors:

1. He was driving under the influence of alcohol so that he lacked the full capacity to control and manage his motor vehicle;

2. That he drove at an excessive speed along the street given the 50 kilometre speed limit;

3. That he failed to keep a proper lookout, not slowing for Ms Brown and Mr Lenartas as they had to hurry on out of his path before the car struck Ashleigh Harriss.

19 During the police investigation the offender attempted to set up a false alibi and concocted a story about two strangers knocking on his door, inquiring about his car being for sale and taking it for a test drive; the suggestion being that it was the two persons who were in fact in his vehicle, one of them driving, at the time of the collision; that having knocked down and killed Ms Harriss they simply drove his car back into his carport, said that they liked the car and one was going to speak to his father the following day about the purchase. They walked off into the darkness and he never saw them again.

20 In my view, and no doubt that of the jury, the evidence was overwhelming in respect of the offender being the driver. In view of the fact that the offender continues to exhibit a lack of remorse I should refer to the evidence on this very issue.

21 The offender’s false alibi involved him having left the home of Tina Sweeney at around 7pm, returning to his own home and then allowing two strangers to test drive his car at some time after 7.30pm. Lisa Rogers, who lived across the road from Tina Sweeney, left her home at around about 7.50 to 7.55pm to drive to work. That time could be pinpointed as when she drove past the collision scene, an ambulance had arrived (19:52:15) but the police had not (19:58). Jason Rogers gave evidence that he was familiar with the exhaust system on the offender’s car, and that he had heard it drive off from Silverwood Place at about a quarter to 8 or ten to 8, that was his estimation of the time. He said he was not looking at the clock, but he recalled hearing the offender’s car when Lisa had just come out of the bathroom dressed for work.

22 On this evening, Friday 15 September 2006, St George played Manly in Sydney in a finals match in the NRL competition. Indeed, the offender’s grandfather with whom he lived had travelled to Sydney to attend the game. The timing of the live television coverage of this game became especially significant in respect of certain observations made by a number of witnesses. (The live coverage started at 7.30pm - at 7.54pm the game started - at 9.39pm the game finished).

23 The defence called in its case Mr George Talevski. He lived at 13 Silverwood Place and he said he was late in closing his business on Friday 15 September. When returning to his home he showered and changed, as he had arranged to attend the home of a friend (about 800 metres away) to watch the live coverage of the football. As he walked out to his driveway he said he saw the offender’s vehicle reversed in Mrs Sweeney’s driveway. He said the car was idling, the driver’s door open and the light on. He thought it would have been around 7 o’clock. He said that when he arrived at his friend’s place the game had not started. He said,

“There were bits and pieces on TV but I wasn’t taking a whole heap of notice of it at the time”.

24 He was then asked:

“Q. How long did you get there before the game actually started?

A. Probably if I had to estimate it it would have been 15 or 20 minutes.”

25 With the evidence of the game commenced at 7.54pm, that would have placed the offender’s car in Ms Sweeney’s driveway at about 7.35pm. This of course is consistent with the combined evidence of Lisa Rogers and Jason Rogers.

26 The offender told police that after the return of his car by the two strangers he did not notice any damage to it. Ms Coad and her mother, Ms Hill, said that the offender arrived at their home during the second half of the televised rugby league game. Ms Coad thought this was about 9.10 to 9.15pm, and Ms Hill said that there was about 20 minutes of the football game to go when he arrived.

27 The offender further informed police that it was not until after the football, after he was leaving Ms Coad’s home, that he became aware for the first time of the damage to his nearside rear vision mirror, which was hanging from the side of the car. He said he inspected the car further under a streetlight outside of his home and noticed further damage to the front nearside.

28 Mr Alan Smith who lived next door to the offender gave evidence that he returned to his home that evening at about 9.10pm. He said it was at this time that he saw the offender standing between the passenger door and the front tyre with his hands up around where the windscreen wipers were. Mr Smith went inside, got changed and had some dinner. He said his girlfriend, Lisa Feberwee, was watching the football. He did not watch the football but began watching a movie at around 9.40pm. Mr Smith was an impressive witness. I was satisfied on his evidence that the offender was indeed inspecting the damage of his car prior to driving to Tracey Coad’s home.

29 Upon this evidence the jury would have had little difficulty in being satisfied beyond reasonable doubt the Crown had proved its case that the offender was indeed the driver.

MORAL CULPABILITY

30 Concerning the correct approach to making an assessment of the offender’s moral culpability I have had regard to the case of R v Errington (2005) 147 ACR 553 where Mason P said at paras 26-27:

“The central inquiry with regard to the objective seriousness of the particular offences is identification of the degree of moral culpability involved, this being ‘a critical component of the objective circumstances of the offence’.” (referenced to the case of Whyte at 284)

31 His Honour then went on to say:

“The jurisprudence in this field recognises ‘abandonment of responsibility’ as one method of describing a high degree of moral culpability. This does not however endorse a bright line subcategory. There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment. It is not required that cases be assigned to one or other of two pigeon holes marked respectively ‘momentary intention or mis-judgment’, and ‘abandoned responsibility’.”

32 In R v Khatter [2000] NSW CCA 32 Simpson J held at para 31:

“Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offences and it is proper for the courts to recognise a continuum rather than a dichotomy when assessing moral culpability.”

I am in agreement with those remarks of Simpson J, in particular, that “there are shades and gradations of moral culpability in different instances of the offences.”

33 There are a number of aggravating factors referred to in the guideline judgment of R v Whyte (2002) 55 NSWLR 252 that relate to moral culpability. In the present case I have found that the offender was driving under the influence, that speed was a factor, that Ms Harriss, Ms Brown and Mr Lenartas were all at risk and that the offender failed to stop.

34 In Whyte, Spigelman CJ in referring to the above factors said at para 228:

“In the above list of aggravating factors, items III to XII are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender had abandoned responsibility for his own or her own conduct. That is not the only way of expressing such a conclusion.”

35 Of course the list of aggravating factors referred to as indicative of typical offences was not meant to operate as a checklist but as a guide as commented in Errington; they remain illustrative, not definitive.

36 Mr Doris, counsel for the offender, submitted a number of matters that should be taken into account on the question of moral culpability and abandonment of responsibility including that the street was dark and not well lit, that it was quiet residential area and the limited opportunity the offender had to see the victim before the collision owing to her being dressed in black. Those matters I have taken into consideration.

37 When scrutinising the present facts, with particular reference to the abovementioned aggravating factors, my assessment is that the offender had abandoned responsibility for his conduct so that his moral culpability was high.

SECOND COUNT

38 This offence was introduced by virtue of the Crimes Amendment (Road Accidents) Bill. In the second reading speech in the New South Wales Legislative Assembly on 21 September 2005 it was stated:

“Under this bill, a new offence of failing to stop, with much heavier penalties, is introduced into the Crimes Act in recognition of society’s abhorrence of those who injure their fellow citizens and then abandon them to die. When a driver leaves the scene of an accident, leaving in his or her wake a dead or badly injured person without attempting to render assistance, the fundamental code of a civilised society is breached. Every driver on our roads needs to be aware that with the privilege of driving on our roads comes a fundamental responsibility to our fellow drivers... the focus of the new offences is to ensure assistance for victims of serious vehicle impacts. Assistance may save a life, minimise injury, improve the prospect of recovery, alleviate suffering, and preserve the dignity of the injured or deceased. Failure to stop and assist in serious accidents should invite significant punishment. The requirement is to stop and give any assistance necessary that is in the driver’s power to give... What is required is for the person to stop and take steps to assist directly or obtain expert help by contacting police or emergency services to ensure that expert assistance is obtained at the earlier opportunity.”

39 The jury’s verdict meant that despite the offender being aware his car had impacted on its front nearside with Ms Harriss, sending her up onto and along the bonnet, aerial and left front windscreen pillar, and causing him to slow his vehicle, he nevertheless made a conscious decision not to stop and render assistance.

40 In respect of both counts on the indictment, deterrence, both specific and general, are significant factors on sentence.

VICTIM IMPACT STATEMENTS

41 I have received and considered victim impact statements of the mother of Ashleigh Harriss, Ms Sue Potts, her grandmother, Ms Phyllis Aspevik, and Mr Robbie Lawson. It is obvious that your loss has been a devastating one, the effects of which will be felt by family and friends for a long time to come. Whilst I do understand and appreciate your grief, the court process is not always capable of doing much to alleviate your sense of loss. Having considered all of what has been placed before me, in accordance with R v Previtera (1997) 94 ACR 75 and also R v Bollen (1998) 99 ACR 510, I have not had regard to those particular effects in assessing the quantum of sentence.

SUBJECTIVE CIRCUMSTANCES

42 I now turn to the subjective matters in respect of the offender. He was thirty-three at the time of the offence and is now thirty-five years. He has no prior criminal record and what can only be described as a relatively minor traffic record. His parents live in Dapto and he has a younger brother and sister. Two reference/testimonials (exhibit 1) were tendered on his behalf. The first is under the hand of Mark Robertson. He has known the offender for seventeen years. He has worked, socialised and played sport with him. He stated that the offender was a quiet, shy, family orientated man with a special love and admiration of cars. He said he was a hard worker and had always been a safe, responsible driver. He confirmed that when the offender’s grandmother passed away in late 2005 the offender moved into his grandfather’s house in Parkdale Avenue to look after him. Mr Robertson stated that he will continue to provide support to the offender during his incarceration.

43 The second letter is under the hand of Mr Terry Askew, Managing Director of M & E Engineering Proprietary Limited. He indicated that the offender had been employed in that company since May 2005 and has an exemplary work history. He described him as conscientious, pleasant, reliable and a valued team member. Mr Askew stated that his company would offer the offender employment when the matter was ultimately resolved.

44 When giving evidence at trial Ms Tina Sweeney stated that she had been in a relationship with the offender for about thirteen years. They have two children from that relationship, now thirteen years and ten years. They separated in 2003. Ms Sweeney has custody of the children. She said the offender has them every second weekend. However, quite apart from that arrangement, she said he could come and see the children as often as he liked, and this would usually occur at least once a week.

45 I have taken into account the following mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act:

(e) the offender has no prior criminal record
(f) he was a person of good character
(g) he is unlikely to re-offend
(h) he has good prospects of rehabilitation - this must be so given his prior good character, his previous work record and the continued support of his family.

46 I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that Act. Having considered all possible alternatives, I am satisfied that given the objective seriousness of the offence no penalty other than imprisonment is appropriate.

47 I find special circumstances being that at age 35 this will be his first time serving a custodial sentence and my assessment of his good prospects for rehabilitation. I regard this as sufficient reason to vary the statutory ratio.

48 In my view there needs to be some accumulation of the sentences. I have borne in mind the principle of totality in respect of the sentences I am about to impose.

49 You are convicted of both counts.

50 In respect of the first on the indictment I sentence you to a non-parole period of four years to date from 15 October 2007 and to expire on 14 October 2011. I sentence you to an additional term of two years to expire on 14 October 2013.

51 In respect of the second count on the indictment I sentence you to a non-parole period of three years to date from 15 October 2009 and to expire on 14 October 2012. I sentence you to an additional term of two years to expire on 14 October 2014.

52 You will therefore become eligible for release to parole on 14 October 2012.

53 Mr Shumack, finally I will just say this to you. Your parents and family do not deserve the torment and heartache that would be a necessary consequence of your continuing with the charade that you were not the driver, and therefore suggesting that you are the victim of some terrible injustice. If they have listened to the facts recited here today in court, hopefully they will be able to accept where the real truth lies, if they had not already done so. I have no doubt they will continue to support you, and that is to their credit. But they should not be put through the false pain of thinking that some injustice has occurred, and only you can put an end to that.

54 I impose the automatic disqualification period of 3 years to date from 28 September 2006.

55 I also order that the two matters on the section 166 certificate be withdrawn and dismissed. Thankyou.

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