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Court of Criminal Appeal 15 April 2010

R v Hunter

[2010] NSWCCA 54

Assault & violenceTraffic & driving
CRIMINAL LAW CROWN APPEAL USE OF MOTOR VEHICLE AS WEAPON RESPONDENT RESENTENCED.

Citation: R v Hunter [2010] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 15 April 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The respondent was convicted by jury of eight offences arising from a single violent incident at Terrigal in March 2008. After a night of heavy drinking, he drove a hired motor vehicle deliberately into a group of people seated outside a bakery on The Esplanade, apparently believing they had assaulted his companion. A blood alcohol reading of 0.197 was recorded at hospital.

Seven people were struck by the vehicle and sustained actual bodily harm. One man was trapped under the front wheels. The respondent continued to accelerate even after the vehicle came to a stop against railings and posts, and bystanders had to lift the front of the car to free the trapped victim.

The jury rejected the respondent's defence that he was too intoxicated to form the necessary intent. The trial judge in the District Court (Phegan ADCJ) sentenced the respondent to an effective term of 2 years 9 months with a non-parole period of 2 years. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentences imposed failed to reflect the criminality involved in the deliberate use of a motor vehicle as a weapon against multiple people
  • Whether the overall sentence of 2 years 9 months was manifestly inadequate having regard to the nature and number of the offences
  • How the individual sentences for multiple counts of assault occasioning actual bodily harm should be structured and accumulated

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding the original sentence was manifestly inadequate. The sentencing judge's overall effective sentence of 2 years 9 months did not adequately reflect the deliberate, indiscriminate, and potentially catastrophic nature of the conduct. The respondent intentionally drove a vehicle at a group of people, injuring seven of them, in what the trial judge himself described as a wanton act with reckless disregard for safety using an instrument of almost immeasurable danger.

The Court imposed a substantially increased overall sentence of 4 years 8 months with a minimum custodial period of 3 years 6 months. The principal offence (count 1, under s 33B(1)(a) of the Crimes Act) carried a maximum of 12 years imprisonment and attracted the lengthiest sentence, structured with a non-parole period. The remaining counts for assault occasioning actual bodily harm and common assault were imposed as fixed terms, with the accumulation of those terms accounting for the absence of special circumstances.

The Court noted that the respondent had been aware since November 2009 that the Crown had lodged an appeal, and that any delay in resentencing resulted partly from the Court awaiting the outcome of an unrelated decision. These matters were taken into account but did not displace the need to impose sentences that properly reflected the gravity of the offending.

Orders Made

  • The sentence for the high range PCA offence is confirmed, commencing 14 June 2009.
  • All sentences on the indictment are quashed and replaced as follows:
  • Count 2 (assault occasioning actual bodily harm, Mr Moon): 18 months fixed term, commencing 14 August 2009
  • Count 4: 12 months fixed term, commencing 14 August 2009
  • Count 8 (common assault): 6 months fixed term, commencing 14 August 2009
  • Count 3: 18 months fixed term, commencing 14 June 2010
  • Count 5: 12 months fixed term, commencing 14 June 2010
  • Count 7: 18 months fixed term, commencing 14 March 2011
  • Count 6: 12 months fixed term, commencing 14 March 2011
  • Count 1 (s 33B(1)(a), principal offence): non-parole period of 13 months commencing 14 November 2011, with release to parole on 13 December 2012; parole period of 14 months

Key Takeaways

  • The Court of Criminal Appeal confirmed that deliberately driving a motor vehicle into a group of people constitutes highly serious criminal conduct warranting substantial custodial sentences, even where injuries were less severe than the circumstances could have produced.
  • A conviction under s 33B(1)(a) of the Crimes Act 1900 for using an instrument (here, a motor vehicle) with intent to commit an indictable offence carries a maximum penalty of 12 years imprisonment and occupied the highest position in the sentencing hierarchy across the eight counts.
  • In setting the overall sentence, the Court treated the accumulation of multiple fixed terms across seven assault counts as a relevant structural consideration, finding it displaced any need to identify separate special circumstances for the purposes of the non-parole period on count 1.
  • Where an original sentence fails to reflect the number of victims and the indiscriminate danger created by deliberate conduct, a Crown appeal for manifest inadequacy will succeed even if the individual sentences for discrete counts were not themselves unreasonable in isolation.
  • A defendant's awareness that a Crown appeal has been filed is a relevant, though not decisive, factor in the resentencing exercise on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59, 61
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9(4)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases:
- R v Perez (NSWCCA, unreported, 11 December 1991)
- R v Hamilton (1993) 66 A Crim R 575
- R v Hutchinson [2000] NSWCCA 113
- R v JW [2009] NSWCCA 49