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 Sides DCJ OFFICER :

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 gathered speed but his requests fell on deaf ears. The pursuit lasted for something in the order of 120 kilometres, in and about the Queanbeyan and ACT area. During this pursuit the prisoner drove the vehicle in a dangerous manner at high excessive speeds, including in built-up areas. On a number of occasions it was driven on the wrong side of the road for periods of time of some length, including when bends were being approached or corners were being negotiated. Traffic control devices were ignored, as were repeated requests of his passenger that he stop."