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." and further: "Shortly before the vehicle driven by the prisoner came to a stop two police vehicles had positioned themselves together on the roadway and were travelling in the same direction as the prisoner's motor vehicle. This strategy was adopted in an attempt to slow the prisoner down and ultimately stop him. As the prisoner approached these two police cars, he gave no indication of slowing down. As a consequence one of the police vehicles veered to the right in order to open up a gap to allow the prisoner's vehicle to pass through. The prisoner's vehicle collided with both of the police vehicles. One of the police vehicles was struck on the rear offside. One officer within that vehicle gained the impression that the prisoner's vehicle tilted and rode over the boot of the police vehicle. That police vehicle was forced forward and almost collided with an embankment. Both police officers were injured, one sustaining injuries of what appeared to be a relatively minor nature, to the chest, the other more serious injuries to the neck. It was estimated that at that point in time the prisoner's vehicle was travelling at approximately 120 kilometres an hour. The second police vehicle was side-swiped by the prisoner's vehicle. The prisoner did not stop, he continued to drive his own vehicle, even though it was extensively damaged as a result of the impact. At least one tyre was flat but he continued to drive his car with smoke billowing from it. The car finally came to a stop when he lost control and it couldn't be driven any further. By this time there was no tyre on at least one of the front wheels and that wheel had been ground down almost to the hub. It would seem that the car was driven for a period of time on the rim of one wheel. The prisoner and his passenger made off. The passenger was found shortly afterwards and he confirmed to the police that the prisoner had been the driver." 7 In stating the facts of the offences his Honour observed that it would be hard to imagine a worse case of driving in a dangerous manner. 8 On the hearing of this application the applicant, who has appeared in person, has sought to challenge some of the findings of fact made by his Honour. However, the findings of fact were amply warranted by the evidentiary material before his Honour, consisting of statements made by the police officers who were involved in the chase and by the passenger in the vehicle being driven by the applicant. There is no basis on which this Court, as a court of error, could interfere with the findings of fact made by his Honour. 9 In his remarks on sentence his Honour then turned to the subjective circumstances of the applicant. The applicant was born in 1964. He was thirty-three years old at the time of committing the principal offence and thirty-four years old at the time he was sentenced. Since he was a teenager the applicant's life has been marked by abuse of liquor and drugs. The sentencing judge gave the applicant credit for his plea of guilty notwithstanding that the applicant had originally pleaded not guilty and had changed his plea to a plea of guilty only after his trial had started. 10 The applicant has a criminal history which commenced when he was a teenager. He has had many convictions for offences of dishonesty, offences involving violence and drug offences. His record of convictions for traffic offences can truly be described as appalling. This record included convictions in April 1994 for driving with a mid-range prescribed concentration of alcohol, driving while disqualified and driving in a dangerous manner, for which he received sentences of imprisonment for six months, which were not disturbed on appeal. In November 1994 he was convicted of driving in a dangerous manner and driving whilst disqualified and sentenced to an effective term of imprisonment of twelve months, which, again, was not disturbed on appeal. In May 1994 the applicant was sentenced to imprisonment for three months for hindering police. In May 1997 he was sentenced to imprisonment for six months for hindering police. 11 After referring to the applicant's criminal history the sentencing judge quoted the well known passage in the joint judgment of four members of the High Court in Veen v The Queen (No.2) (1987-1988) 164 CLR 465 at 477-8 about the use which may properly be made by a sentencing judge of the antecedent criminal history of an offender and his Honour decided that the applicant's previous criminal history was relevant to his Honour's sentencing task. 12 His Honour was prepared to find that there were special circumstances, including the applicant's age, his problems with drugs and liquor and problems he had had of responding to supervision in the past. 13 As I have said, the applicant appeared for himself for the hearing of this appeal. The applicant asserted, both in a letter written to the Registrar of the Court and in submissions before the Court, that he agreed to plead guilty, only after his counsel and the Crown Prosecutor at his trial had agreed he would not receive a sentence longer than eighteen months. It was also submitted that so far from his directing his vehicle towards the police, "they were trying to ram me." The applicant said that he was not arrested until some time after the accident. He claimed that he suffers from an injury to his lower back. He claimed that he was treated more severely by the sentencing judge than other similar offenders he had heard of. He asserted that the passenger in his vehicle was not, as the passenger asserted in a statement, an unwilling passenger, but was, in fact, himself a person fleeing from justice. The applicant has asserted that he should have been sentenced merely to periodic detention or home detention. As I have previously indicated the applicant challenged some of the findings of fact made by the sentencing judge in his remarks on sentence. 14 I do not consider that any of these submissions should be upheld. There was no evidence before his Honour of the alleged agreement between the counsel at the trial, even if such an agreement had any relevance to the sentencing of the applicant. As I have said before, the sentencing judge was amply justified, on the evidence before him, in making the findings of fact which he did, including his findings about the applicant's driving and his finding that the passenger in the applicant's vehicle was an unwilling passenger and not himself a fugitive from justice. There was no evidence before his Honour of the applicant having any serious back injury. His Honour was clearly entitled to form the view that no sentence other than a substantial sentence of full-time custody in a correctional centre would be an appropriate sentence. 15 In my view, given the objective gravity of the principal offence, the need for general deterrence in sentencing for offences under s33B (a matter referred to by the Chief Justice in the R v Hamilton), the further offences to be taken into account, the applicant's serious criminal history both for offences involving motor vehicles and for offences of hindering his apprehension by the police, the sentence imposed by his Honour was an entirely proper sentence. I would refuse leave to appeal. 16 ABADEE J: I agree. The order of the Court will be as indicated by Justice James. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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