Wykamp v The Queen - [2012] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wykamp v R [2012] NSWCCA 145
Hearing dates: 22 June 2012
Decision date: 04 July 2012
Before: McClellan CJ at CL at [1]
Price J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - threatening to injure officer with intent to hinder lawful detention in company - full time custodial sentence not manifestly excessive - no error in finding lack of remorse and contrition
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: R v Hamilton (1993) 66 A Crim R 575
R v Sainsbury [2000] NSWCCA 496
R v William John Murray [2008] NSWDC 285
Category: Principal judgment
Parties: Peter Andrew John Wykamp (applicant)
Regina (respondent)
Representation: Counsel:
D Murray (applicant)
J Pickering (respondent)
Solicitors:
Boulevarde Lawyers (applicant)
Solicitor for Public Prosecutions

File Number(s): 2010/431004
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-09-06 00:00:00

Before:

Neilson DCJ

File Number(s):

2010/431004

Judgment

McClellan CJ at CL: I agree with Button J.

Price J: I agree with Button J.

Button J:

Introduction

On 6 September 2011 in the District Court at Orange, Judge Neilson convicted Peter Andrew John Wykamp ("the applicant"), pursuant to a plea of guilty, of one count of threatening to injure Constable Miles Burden with intent to hinder the lawful detention of Mitchell Wykamp while in company. The charge was brought pursuant to s 33B(2) of the Crimes Act 1900. It attracted a maximum penalty of imprisonment for 15 years. There was no applicable standard non-parole period. Immediately thereafter, his Honour sentenced the applicant to a total term of imprisonment for 18 months, with a non-parole period of imprisonment for 12 months. It can be seen that a slight adjustment was made to the length of the non-parole period on the basis of a finding of special circumstances; if that had not occurred, the non-parole period would have been 13 months and 2 weeks. The applicant seeks leave to appeal against that sentence to this Court.

Objective features

Eugowra is a small country town of about 500 citizens located between Orange and Forbes. As at Boxing Day 2010, Constable Burden was the sole police officer stationed in the town. In the evening of that day he travelled to Canowindra to assist with rising floodwaters. He returned to Eugowra at about 12:30am on 27 December 2010. That town was also endangered by floods.

Constable Burden was informed that a vehicle had been seen driving erratically. Very shortly after, a vehicle consistent with the description given drove past. Constable Burden stopped the vehicle. The driver was the young son of the applicant. He was on his provisional license. Mitchell Wykamp returned a roadside breath reading of 0.115. He was arrested, handcuffed and placed in the rear of the caged police vehicle.

Meanwhile the applicant was at his business, preparing for the flood. As soon as he was told about the arrest of his son,…

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 Wykamp v The Queen

Details

AGLC: Wykamp v The Queen [2012] NSWCCA 145
Case: [2012] NSWCCA 145
Decision Date: 04 July 2012

CaseChat Overview and Summary

The appellant, Wykamp, was convicted of threatening to injure an officer with intent to hinder lawful detention in company. He appealed against his sentence, arguing it was manifestly excessive. The appeal was heard in the High Court of Australia. The central legal issue was whether the sentence imposed by the lower court was manifestly excessive, considering the nature and circumstances of the offence and the appellant's background.

The High Court held that the sentence was not manifestly excessive. The court noted the gravity of the offence, which involved threatening an officer with intent to hinder lawful detention. The appellant's lack of remorse and contrition, as well as his prior criminal history, were also considered. The Court found that the sentence was proportionate to the severity of the crime and the appellant's culpability. It also concluded that the lower court's assessment of the appellant's lack of remorse and contrition was correct, and these factors were appropriately considered in determining the appropriate sentence.

The appeal was dismissed. The Court found no error in the lower court's approach to sentencing, and the sentence was upheld as appropriate given the circumstances of the offence and the appellant's background.

Orders