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District Court 26 July 2019

R v Hutchison

[2019] NSWDC 683

Assault & violenceTraffic & driving
CRIME SENTENCE

Citation: R v Hutchison [2019] NSWDC 683
Court: District Court of New South Wales
Date: 26 July 2019
Judge(s): Wilson SC DCJ

Background

The offender, a 52-year-old retired dentist with a prior history of drink-driving offences, appeared for sentencing following a series of serious offences arising from a single incident on 26 March 2018. At the time of the offending, he was disqualified from driving until October 2022 and subject to multiple bonds from earlier convictions, including two prior high-range drink-driving matters.

On that afternoon, the offender drove an unregistered and uninsured vehicle to the top level of a Westfield shopping centre at Tuggerah. After purchasing alcohol from a liquor store, he returned to his vehicle and drove it at speed in reverse, striking two young pedestrians loading groceries into a nearby car and trapping another woman between vehicles. A chain of collisions followed, damaging six cars in total.

Police arrived to find the offender in his vehicle with a head laceration. A roadside breath test returned a reading of 0.278, and a subsequent test at hospital returned 0.175. He was arrested the following day and has been held in custody since 27 March 2018.

  • What aggregate sentence was appropriate for multiple charges arising from the same incident, including two counts of aggravated dangerous driving occasioning grievous bodily harm, causing bodily harm by misconduct, destroy/damage property, driving whilst disqualified, and using an unregistered and uninsured vehicle?
  • How should the Form 1 offence (failure to stop and offer assistance after a vehicle impact causing grievous bodily harm) affect the sentence for the charge to which it attached?
  • What orders, including disqualification periods and victim compensation, were warranted?
  • How should pre-existing bonds, which were called up at sentencing, be treated alongside the new offences?
  • Was the sentence consistent with the totality principle, ensuring it reflected overall criminality without being crushing?

Decision

Wilson SC DCJ convicted the offender on all principal charges and imposed an aggregate sentence of seven years imprisonment, with a non-parole period of four years and eight months, both dating from 27 March 2018. The sentence reflected the gravity of the offending, including the aggravated nature of the dangerous driving charges (the aggravating factor being driving with a blood alcohol concentration above 0.08), the multiple victims, and the fact the offender was already disqualified and subject to bonds at the time.

The Form 1 offence of failing to stop and offer assistance was taken into account in sentencing for the charge to which it attached. The court noted that the Form 1 increased the sentence for that charge, with deterrence and the community's expectation of retribution both acknowledged as relevant considerations.

The court identified a significant pattern of prior alcohol-related driving offending. The offender had been sentenced for two prior high-range PCA matters, had been placed on successive bonds, and had had an interlock program ordered on a previous occasion. His conduct on 26 March 2018 occurred in direct breach of those earlier orders and while subject to a lengthy licence disqualification.

Before imposing the aggregate sentence, the court applied the totality principle, ensuring the overall sentence reflected the full criminality of the offending without being disproportionately severe. A ten-year driving disqualification was also imposed for the aggravated dangerous driving charges, running from 25 January 2020 to 24 January 2030.

Orders Made

  • The offender was convicted of: causing bodily harm by misconduct (s 53 Crimes Act, sequence 3); two counts of aggravated dangerous driving occasioning grievous bodily harm (s 52A(4) Crimes Act, sequences 11 and 12); destroy/damage property (s 195(1)(a) Crimes Act, sequence 15); driving whilst disqualified (s 54(1)(a) Road Transport Act, sequence 5); using an unregistered motor vehicle (s 68(1) Road Transport Act, sequence 6); and using an uninsured motor vehicle (s 81 Motor Accidents Compensation Act, sequence 8).
  • For sequences 6 and 8, fines of $1,000 and $2,000 were imposed respectively.
  • For all remaining convictions, an aggregate sentence of seven years imprisonment was imposed, commencing 27 March 2018 and expiring 26 March 2025.
  • An aggregate non-parole period of four years and eight months was imposed, commencing 27 March 2018 and expiring 26 November 2022.
  • A ten-year driving disqualification was imposed for the aggravated dangerous driving offences, running from 25 January 2020 to 24 January 2030.
  • Pursuant to the Victims Rights and Support Act 2013, the offender was ordered to pay compensation of $21,548.80 to one of the victims (sequence 12). Leave was granted to other victims to apply for compensation within seven days.
  • Four backup charges were withdrawn and dismissed.

Key Takeaways

  • The District Court treated the offender's extensive prior history of alcohol-related driving offences, and the fact he was disqualified and subject to live bonds at the time of the offending, as significant aggravating factors when determining the appropriate sentence.
  • A Form 1 offence (here, failing to stop and offer assistance after causing grievous bodily harm) does not attract a separate conviction but is taken into account to increase the sentence for the charge to which it attaches, with deterrence and community retribution both informing its weight.
  • Aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act is distinguished from the base offence by the presence of a specific aggravating circumstance, in this case driving with a blood alcohol concentration above 0.08, and carries a maximum of 11 years imprisonment.
  • The totality principle required the court to assess the aggregate sentence across all charges to ensure it reflected the overall criminality of the conduct rather than being the mechanical sum of individual penalties.
  • Victim compensation orders under the Victims Rights and Support Act 2013 can be made at sentencing where the court finds a person to be aggrieved by the offender's conduct, with leave available for other victims to apply within a specified time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 52AB, 53, 58, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Motor Accidents Compensation Act 1999 (NSW), s 8
- Road Transport Act 2013 (NSW), ss 54, 68, 110, 117
- Road Transport (Driver Licensing) Regulation 2017 (NSW), s 119
- Victims Rights and Support Act 2013 (NSW)

Cases:
- R v Whyte (2002) 55 NSWLR 252