Hocking v Police - [2009] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOCKING v POLICE
[2009] SASC 268
Judgment of The Honourable Justice Sulan
2 September 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - SENTENCE DURING UNEXPIRED SENTENCE
Appeal and cross-appeal against sentence - appellant pleaded guilty to offences of interference with motor vehicle, theft, damage property and attempted serious criminal trespass - Magistrate imposed sentence of 15 months' imprisonment to be served cumulatively on sentence of District Court of two years and eight months' imprisonment with non-parole period of 21 months for offences of aggravated serious criminal trespass and theft - Magistrate extended non-parole period by 10 months, total non-parole period of 31 months - whether Magistrate erred in application of principle of totality - whether combined effect of total sentence and non-parole period excessive - whether non-parole period should be extended - whether Magistrate erred in failing to disqualify appellant's driver's licence for offence of interference with motor vehicle.
Held: appeal and cross-appeal allowed - sentence of Magistrate - appellant re-sentenced to a term of nine months' imprisonment - sentence to be served concurrently with District Court sentence appellant currently serving, with non-parole period of 21 months - appellant disqualified from holding or obtaining driver's licence for 12 months.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 86A(2), s 134(1), s 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32(1), s 58(4), referred to.
Mill v The Queen (1988) 166 CLR 59; R v Hughey [2008] SASC 263; R v Cullen (2007) 249 LSJS 275; R v Shepperbottom (2001) 121 A Crim R 69; Heal v Police (1999) 75 SASR 331; Holland v SA Police (1994) 178 LSJS 320; Police v Smith [2004] SASC 38; Police v Morzanj [2005] SASC 263; Davis v Police [2004] SASC 318, considered.

HOCKING v POLICE
[2009] SASC 268
Magistrates Appeal

SULAN J: The appellant pleaded guilty before a Magistrate to the offences of interfering with a motor vehicle, theft and damaging property, all committed on 3 December 2007. He also pleaded guilty to attempted serious criminal trespass, committed on 11 February 2008.[1]
[1] Interfering with a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act 1935.
Theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935.
Damaging property, contrary to s 85(3) of the Criminal Law Consolidation Act 1935.
Attempted serious criminal trespass, contrary to s 170(1) of the Criminal Law Consolidation Act 1935.
On 13 May 2009, he was sentenced by a Magistrate, who imposed one penalty of 15 months’ imprisonment for all the offences. The Magistrate ordered that the sentence is to be served cumulatively upon a sentence of two years and eight months’ imprisonment imposed by the District Court on 8 December 2008 for offences of aggravated serious criminal trespass and theft, committed on 5 September 2007. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hocking v Police

Details

AGLC: Hocking v Police [2009] SASC 268
Case: [2009] SASC 268
Decision Date: 2 September 2009

CaseChat Overview and Summary

The appeal and cross-appeal heard in Hocking v Police involved the appellant, who had pleaded guilty to various offences including interference with a motor vehicle, theft, damage to property, and attempted serious criminal trespass. The appellant was sentenced by a Magistrate to a term of 15 months' imprisonment to be served cumulatively with a previous sentence of two years and eight months imposed by the District Court for offences of aggravated serious criminal trespass and theft. The Magistrate extended the non-parole period by 10 months, resulting in a total non-parole period of 31 months. The appellant challenged the sentence on several grounds, including whether the Magistrate had erred in applying the principle of totality, whether the combined effect of the total sentence and non-parole period was excessive, whether the non-parole period should be extended, and whether the Magistrate had erred in failing to disqualify the appellant's driver's licence for the offence of interference with a motor vehicle.

The court had to decide whether the Magistrate's application of the principle of totality was correct, whether the overall sentence and non-parole period were appropriate given the circumstances, and whether the extension of the non-parole period was justified. Additionally, the court needed to consider whether the Magistrate's decision not to disqualify the appellant's driver's licence for the offence of interference with a motor vehicle was appropriate.

The court found that the appeal and cross-appeal should be allowed, and that the sentence imposed by the Magistrate significantly increased the length of the appellant's sentence and non-parole period, thereby eroding the intended effect of the District Court Judge's sentence. The court re-sentenced the appellant to a term of nine months' imprisonment to be served concurrently with the District Court sentence, with a non-parole period of 21 months. The court also disqualified the appellant from holding or obtaining a driver's licence for 12 months. This decision ensured that the original sentencing intentions of the District Court were preserved and appropriately adjusted to account for the appellant's recent offending.

Orders

Orders of the court

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Background

Background to the litigation

The sentence imposed by the Magistrate substantially increased the length of the appellant’s sentence and non-parole period, with the result that the object that the District Court Judge sought to attain has been significantly eroded. For the reasons which follow, the appeal should be allowed so that the effect of the District Court Judge’s sentence can be maintained.Background The appellant has a long history of prior offending dating back to May 1990. Much of his offending is for offences of driving whilst disqualified, driving an unlicensed and uninsured vehicle, and other driving offences. He has been convicted of offences of dishonesty, including offences of larceny, false pretences and damaging property. As to his more recent offending on 13 June 2002, he was convicted of numerous dishonesty offences and was sentenced to 23 months’ imprisonment, with a non-parole period of nine months. On 19 May 2006, he was convicted of one count of non-aggravated serious criminal trespass, seven counts of theft, one count of driving whilst disqualified and two counts of failing to comply with a bail agreement. He was sentenced to 24 months’ imprisonment, with a non-parole period of nine months’ imprisonment. On 18 February 2007, he was released on parole for the offences for which he had been sentenced on 19 May 2006. The appellant was arrested on 26 February 2008 for the offences which were dealt with by the District Court on 8 December 2008. The District Court Judge observed that the appellant had pleaded guilty to aggravated serious criminal trespass and theft of a Sony Play Station, which was taken from a house at Goodwood which was broken into on 5 September 2007. The appellant was looking for money or items which he could use to obtain drugs. The householder disturbed him and a co-offender whilst they were in the house. The District Court Judge took into account that the appellant had grown up in a dysfunctional household, had little contact with his father and intermittent contact with his mother. The Judge observed that the appellant has a long history of offending. The appellant is in a relationship with a young woman and, together, they have four daughters who are now aged between five and a half years and 12 months. The appellant used heroin, which was the cause of much of his offending. The offences were committed within weeks of his release on parole. The District Court Judge took into account an unexpired period of parole of 11 months and 11 days that the appellant was required to serve, in addition to the sentence that she imposed. The District Court Judge imposed one sentence of three years’ imprisonment, to be served cumulatively upon the unexpired period of parole of 11 months and 11 days. She then reduced the sentence by six months, having regard to the principle of totality. She said:Giving consideration to the total sentence, in the light of your relatively young age, the fact that you have had little opportunity so far to participate in programs for rehabilitation, and your responsibilities as the father of young children, I reduce the total sentence by six months to take those factors into account and to ensure that the sentence is not a crushing one at this stage of your life, to one of 3 years, 5 months and 11 days.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case, it is not appropriate to increase the non-parole period. I therefore decline to do so.Conclusion The appeal and cross-appeal are allowed. The sentence of 15 months’ imprisonment imposed by the Magistrate on 13 May 2009 is set aside and, in substitution thereof, I impose one sentence for all the offences committed on 3 November 2007 and 11 February 2008 of nine months’ imprisonment, to be served concurrently with the sentence of two years and eight months that the appellant is currently serving. The non-parole period is 21 months. The sentence and non-parole period are to commence on 8 December 2008. In addition to the sentence of imprisonment, the appellant is disqualified from holding or obtaining a driver’s licence for 12 months.

Ratio Decidendi

Legal Principle Established

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