Shumack v R - [2008] NSWCCA 311

Reported Decision: 191 A Crim R 513

New South Wales

Court of Criminal Appeal

CITATION: Shumack v R [2008] NSWCCA 311

HEARING DATE(S): 2nd December 2008

JUDGMENT DATE:
16 December 2008

JUDGMENT OF: Hodgson JA at 1; James J at 6; Price J at 7

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - offences of dangerous driving causing death and failing to stop and assist - Whyte guideline - whether double punishment - whether sentences were manifestly excessive.

LEGISLATION CITED: Correctional Centres Act 1952 s 32
Crimes Act 1900 s 52A(1)(c), 52AB(1), s 206(a)
Crimes (Sentencing Procedure) Act 1999 s 21A
s 21A(3)
Crimes Amendment (Road Accidents) (Brendan's Law) Act 2005

CATEGORY: Principal judgment

CASES CITED: Ahmad v Regina [2006] NSWCCA 177
Dudko (2002) 132 A Crim R 371
R v Allpass (1993) 72 A Crim R 561
R v Errington 157 A Crim R 553
R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287
R v Jurisic (1998) 45 NSWLR 209, 101 A Crim R 259
R v Whyte (2002) 55 NSWLR 252; 134 A Crim R 53
Pearce v The Queen (1998) 194 CLR 610

PARTIES: Michael John Shumack
Regina

FILE NUMBER(S): CCA 2007/9994

COUNSEL: H Cox (Applicant)
J Girdham (Respondent)

SOLICITORS: Hansons Lawyers (Applicant)
S. Kavanagh Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/41/0045

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 3 December 2007

LOWER COURT MEDIUM NEUTRAL CITATION: R v Shumack

2007/9994

HODGSON JA
JAMES J
PRICE J
16 December 2008

SHUMACK v R

Judgment

1 HODGSON JA: I agree with Price J.

2 On the question whether the appellant’s failure to stop could be taken into account as an aggravating factor in relation to the offence of dangerous driving occasioning death, I would note that the moral culpability of an offender in relation to that offence can vary enormously, not least because of different degrees of mens rea that may be involved.

3 On the one hand, the dangerous driving may be a momentary aberration in the conduct of a person who is otherwise properly concerned to observe the requirements of the law and properly concerned about the safety of other persons. On the other hand, it may be conduct carried out in disregard for the requirements of the law and disregard for the safety of other persons.

4 Failure to stop after an accident so severe that it occasions death is a strong indication that the dangerous driving itself falls into the latter rather than the former category. The failure may be explained in terms of panic; but in my opinion, even with that explanation, it would still remain relevant, albeit that it may be given less weight as an indication of the moral culpability of the offender in relation to the dangerous driving.

5 There is nothing in the sentencing judge’s reasons to suggest that he took the failure to stop into…

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 Shumack v R

Details

AGLC: Shumack v The Queen [2008] NSWCCA 311
Case: [2008] NSWCCA 311
Decision Date: 16 December 2008

CaseChat Overview and Summary

Shumack v R involved the defendant, Shumack, who was convicted of dangerous driving causing death and failing to stop and assist. The case was heard in the High Court of Australia. Shumack was involved in a car accident that resulted in the death of a pedestrian. He was found guilty of dangerous driving causing death and failing to stop and assist. The primary issue before the court was whether Shumack could be punished twice for the same conduct, and if the sentences imposed were manifestly excessive.

The court considered the principle of double punishment and whether the sentences imposed for the two offences were excessive. It was argued that the two offences were part of a single course of conduct and that Shumack should not be punished twice for the same act. The court also considered whether the sentences were manifestly excessive, taking into account the principles of proportionality and deterrence. The High Court found that the two offences were distinct and that Shumack could be punished for both. The court held that the sentences were not manifestly excessive, as they were proportionate to the gravity of the offences and served the purposes of punishment, deterrence, and rehabilitation.

The reasoning of the court was based on the principles of criminal law and sentencing. The court held that the two offences were separate and distinct, and that Shumack could be punished for both. The court also held that the sentences were proportionate to the gravity of the offences, and that they served the purposes of punishment, deterrence, and rehabilitation. The court found that the sentences were not manifestly excessive, and that there was no error in the sentencing process. The High Court dismissed the appeal and upheld the convictions and sentences.

Orders