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Hutchison v The Queen

Hutchison v The Queen

Case [2021] VSCA 235 27 August 2021

Recklessly exposing emergency worker to risk

Recklessly causing injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 00139

ANDREW HUTCHISON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, EMERTON and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2021
DATE OF JUDGMENT:	27 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 235
JUDGMENT APPEALED FROM:	[2020] VCC 708 (Judge Mullaly)

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CRIMINAL LAW – Appeal – Conviction – Recklessly exposing emergency worker to risk by driving (charge 1), damaging emergency services vehicle (charge 2), recklessly causing injury (charge 3) – Appellant in distressed state speeding and driving erratically on highway – Police deployed ‘stop sticks’ to deflate tyres – Appellant’s car changed direction and headed towards second police car parked on verge – Appellant’s car collided with police car – Police car struck police officer and injured him – Whether conviction on both charges 1 and 3 resulted in double punishment – Conduct not a single, inseparable act – Additional actus reus involved in causing injury to police officer – Injury not treated as aggravating factor for charge 1 – Appeal against conviction dismissed – R v Sessions [1998] 2 VR 304, distinguished – R v Newman and Turnbull [1997] 1 VR 146, considered.

CRIMINAL LAW – Appeal – Sentence – Whether individual sentences on charges 1–3, orders for cumulation, non-parole period and total effective sentence of 4 years, 9 months’ imprisonment manifestly excessive – Serious offending – Proper weight not given to appellant’s reduced moral culpability because of impaired mental functioning – Appeal against sentence allowed – Resentenced to total effective sentence of 3 years, 6 months’ imprisonment with non-parole period of 24 months – R v Verdins (2007) 16 VR 269, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Reardon and Ms H Canham	Legal Aid Victoria
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
EMERTON JA
SIFRIS JA:

Introduction

On 30 April 2020, the appellant pleaded guilty in the County Court of Victoria to four charges: recklessly exposing an emergency worker to risk by driving; damaging an emergency service vehicle; recklessly causing injury; and a related summary offence of dangerous driving.

The appellant was sentenced as follows:

Charge on indictment

Offence

Maximum

Sentence

Cumulation

1

Recklessly exposing emergency worker to risk by driving (Crimes Act1958, s 317AE)

10 years

3 years

Base

2

Damaging emergency service vehicle (Crimes Act, s 317AG)

5 years

1 year

7 months

3

Recklessly causing injury (Crimes Act, s 18)

5 years[1]

20 months

12 months

Related summary offence

Dangerous driving (Road Safety Act1986, s 64(1))

2 years

6 months

2 months

Total effective sentence

4 years, 9 months’ imprisonment

Non-parole period

3 years

Pre-sentence detention declared

513 days

6AAA statement: 6 years, 6 months’ imprisonment with a non-parole period of 4 years, 6 months

Other relevant orders: Licence cancellation and disqualification for 3 years

[1]A mandatory minimum sentence of 6 months’ imprisonment applied…

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 Hutchison v The Queen

Details

AGLC: Hutchison v The Queen [2021] VSCA 235
Case: [2021] VSCA 235
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the case of Hutchison v The Queen, the appellant, Hutchison, was convicted of recklessly exposing an emergency worker to risk by driving, damaging an emergency services vehicle, and recklessly causing injury to a police officer. The events leading to these charges occurred when Hutchison, in a distressed state, was speeding and driving erratically on a highway. To prevent potential harm, police deployed 'stop sticks' to deflate the tyres of Hutchison's car. However, as a result, the car changed direction and collided with a police car parked on the verge, which subsequently struck and injured a police officer. The appellant's appeal focused on the legal sufficiency of the convictions and the severity of the imposed sentence.

The primary legal issue in the appeal was whether the appellant's conviction on charges one and three amounted to double punishment for the same act. The court considered whether Hutchison's conduct constituted a single, inseparable act or if the additional actus reus involved in causing injury to the police officer justified separate convictions. The court also examined whether the injury to the police officer should be treated as an aggravating factor for the charge of recklessly exposing an emergency worker to risk. The court found that the appellant's conduct did not constitute a single, inseparable act and that the injury to the police officer involved an additional actus reus. Consequently, the appeal against the convictions was dismissed.

The court further assessed the severity of the appellant's sentence, considering whether the individual sentences for each charge, the orders for cumulation, the non-parole period, and the total effective sentence of 4 years and 9 months' imprisonment were manifestly excessive. The court noted that the appellant's reduced moral culpability due to impaired mental functioning had not been given sufficient weight. As a result, the appeal against the sentence was allowed, and the appellant was resentenced to a total effective sentence of 3 years and 6 months' imprisonment, with a non-parole period of 24 months. The court applied the principles established in R v Verdins to reach its decision.

Orders