Citation: R v Hutchison [2000] NSWCCA 113
Court: New South Wales Court of Criminal Appeal
Date: 22 March 2000
Judge(s): James J, Abadee J
Background
The applicant pleaded guilty in the District Court to one charge of using an offensive weapon with intent to prevent lawful apprehension, an offence under s 33B of the Crimes Act carrying a maximum of 12 years' penal servitude. The offensive weapon in question was his motor vehicle. The plea came after the trial had already commenced, following an initial not guilty plea.
The offending arose from a police pursuit near Queanbeyan in June 1998. After police signalled the applicant's vehicle to stop, he fled and led officers on a chase covering approximately 120 kilometres through built-up areas. He drove on the wrong side of the road, ignored traffic signals, and disregarded repeated pleas from his passenger to stop.
The pursuit ended when the applicant's vehicle collided at approximately 120 km/h with two police cars that had been positioned to slow him down. Two officers were injured. The applicant continued driving his heavily damaged car until it was undriveable, then fled on foot. He was later identified by his passenger.
Legal Issues
- Whether the sentence of four years and six months penal servitude (minimum term of two years six months, additional term of two years) was manifestly excessive or otherwise in error
- Whether findings of fact made by the sentencing judge were open on the evidence
- Whether the applicant's various grounds, including an alleged sentencing agreement, a claim of self-defence in the collision, and assertions about the passenger's willingness, had any merit
Decision
The Court of Criminal Appeal found no error in the sentencing judge's approach or in the sentence imposed. James J concluded that the factual findings were amply supported by police officer statements and the passenger's evidence, and that the Court, sitting as a court of error, had no basis to interfere with those findings.
The applicant's assertion that his counsel and the Crown Prosecutor had agreed to a sentence of no more than 18 months was not supported by any evidence before the sentencing judge. Similarly, the claims that the police had rammed him, that the passenger was a willing fugitive, and that he suffered a serious back injury were all unsupported by the evidence. The sentencing judge had been fully entitled to reject those contentions.
James J, with Abadee J agreeing, held that the sentence was entirely proper, having regard to the objective gravity of the offence, the need for general deterrence in s 33B matters, the additional offences taken into account on sentence, and the applicant's serious criminal history across traffic offending, dishonesty, violence, and hindering police apprehension.
Orders Made
- Leave to appeal refused
Key Takeaways
- The Court of Criminal Appeal confirmed that a motor vehicle is capable of constituting an offensive weapon for the purposes of s 33B of the Crimes Act, following the earlier decision in R v Hamilton (1993) 66 A Crim R 575.
- General deterrence is a significant sentencing consideration for offences under s 33B involving the use of a vehicle to prevent lawful apprehension.
- An applicant's antecedent criminal history, including prior convictions for dangerous driving, driving while disqualified, and hindering police, is a legitimate factor a sentencing court may weigh, consistent with the principles stated in Veen v The Queen (No.2) (1988) 164 CLR 465.
- No error arose from the sentencing judge's rejection of the applicant's factual assertions where those assertions were contradicted by police and witness evidence that the judge was entitled to accept.
- Changing a plea to guilty after a trial has already commenced does not preclude the sentencing court from giving some credit for that plea, but the timing and circumstances are relevant to the weight accorded.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 33B (using an offensive weapon with intent to prevent lawful apprehension)
- Criminal Procedure Act (NSW), s 21 (taking additional charges into account on sentence)
Cases:
- R v Hamilton (1993) 66 A Crim R 575 (NSWCCA)
- Veen v The Queen (No.2) (1987-1988) 164 CLR 465 (High Court of Australia)