R v Hutchison - [2000] NSWCCA 113

Reported Decision: [2000] 31 MVR 438

New South Wales

Court of Criminal Appeal

CITATION: R v Hutchison [2000] NSWCCA 113

FILE NUMBER(S): CCA 60070/99

HEARING DATE(S): 22/03/00

JUDGMENT DATE:
22 March 2000

PARTIES :

Regina v Derek John Wayne Hutchison

JUDGMENT OF: Abadee J at 16; James J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/41/0239

LOWER COURT JUDICIAL
OFFICER : Sides DCJ

COUNSEL : CK Maxwell QC - Crown
In Person - Applicant

SOLICITORS: SE O'Connor - Crown
-

DECISION: Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60070/99

ABADEE J
JAMES J
Wednesday 22 March 2000

REGINA v DEREK JOHN WAYNE HUTCHISON

JUDGMENT

1 JAMES J: Derek John Wayne Hutchison has applied for leave to appeal against a sentence imposed on him in the District Court on 18 February 1999 by his Honour Judge Sides after the applicant had pleaded guilty to one charge of using an offensive weapon with intent to prevent lawful apprehension, an offence under s33B of the Crimes Act, for which the maximum penalty is penal servitude for twelve years.
2 In sentencing the applicant Judge Sides also took into account, pursuant to s21 of the Criminal Procedure Act, charges of driving in a dangerous manner, driving whilst disqualified, possessing a prohibited drug, disposing of stolen property and obtaining property by deception.
3   The sentence imposed by Judge Sides was a sentence of penal servitude for four years and six months, consisting of a minimum term of two years six months commencing on 23 January 1999 and an initial term of two years. The applicant was also disqualified from driving a motor vehicle for five years commencing on 18 February 1999.
4 Section 33B, the section of the Crimes Act under which the principal offence was charged provides, so far as is relevant, that:

"Any person who uses an offensive weapon with intent to prevent his lawful apprehension is liable to penal servitude for twelve years."

5   It was held by this Court in R v Hamilton (1993) 66 A Crim R 575 that a motor vehicle was capable of being an offensive weapon for the purposes of s33B. There are also other decisions of this Court to a similar effect.
6   The facts of the offences were stated by Judge Sides in his remarks on sentence as follows:

"The facts of this matter disclose a serious offence. On the evening of 25 June 1998 police had gone to Banksia Street, Queanbeyan in response to a complaint about a suspicious vehicle. Whilst police were undertaking their enquiries in that street the prisoner drove his Falcon Stationwagon into Banksia Street with Brett Leslie Pearce as his passenger. His vehicle was identified as the suspicious vehicle that had been the subject of the complaint that had brought the police there. When police signalled for the vehicle to stop, it sped off and the police pursued it. Mr Pearce, the passenger, asked to be let out before the car…

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 Hutchison

Details

AGLC: R v Hutchison [2000] NSWCCA 113
Case: [2000] NSWCCA 113
Decision Date: 22 March 2000

CaseChat Overview and Summary

The New South Wales Court of Criminal Appeal considered an application for leave to appeal by Derek John Wayne Hutchison against a sentence imposed by the District Court. Hutchison had pleaded guilty to using an offensive weapon with intent to prevent lawful apprehension, an offence under s33B of the Crimes Act, which carries a maximum penalty of twelve years' penal servitude. In addition to the principal offence, the sentencing judge took into account other charges including driving in a dangerous manner, driving whilst disqualified, possessing a prohibited drug, disposing of stolen property, and obtaining property by deception. The sentence imposed was four years and six months of penal servitude, with a minimum term of two years and six months, and a five-year disqualification from driving.

The legal issues before the Court of Criminal Appeal were whether the sentence imposed by the District Court was manifestly excessive or otherwise inappropriate, and whether the applicant's claims about the circumstances of his offending and the alleged agreement regarding the length of his sentence should lead to a different outcome. The Court needed to determine whether the sentence was within the range of appropriate penalties for the offences committed and whether any findings of fact made by the sentencing judge were unsupportable or should lead to a different sentence.

The Court found that the sentence imposed by the District Court was appropriate given the gravity of the principal offence, the need for general deterrence, the additional offences taken into account, and the applicant's extensive criminal history. The Court noted that the sentencing judge had properly considered the applicant's subjective circumstances, including his age, drug and alcohol issues, and past failures to respond to supervision. The Court rejected the applicant's claims regarding the circumstances of his offending and the alleged agreement with counsel and the Crown Prosecutor, finding that the sentencing judge's findings of fact were amply supported by the evidence. The Court concluded that no sentence other than a substantial term of full-time custody would be appropriate and refused leave to appeal.

Orders