Hollands v R File No. SCCRM 92/569 Judgment No. 3669 Number of Pages 4 Criminal Law and Procedure - [1992] SASC 3669

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL King C.J.(1), Cox(2) and Matheson(3) JJ.

CWDS
Criminal law and procedure - sentence - clubroom breaking and larceny - man aged 32 years with one prior adult conviction for dishonesty i.e. stealing - 18 months imprisonment with non-parole period of 12 months moderate sentence - appeal against revocation of suspension by reason of subsequent offences of driving while disqualified and driving under the influence - no special circumstances justifying reduction - appeal dismissed.
Driving offences - penalty - driving while disqualified - 5 months imprisonment - driving under influence 3 months imprisonment concurrent with sentence of 5 months - sentence of 5 months required to reflect total seriousness of offending - 4 prior drink driving offences and 3 prior driving while disqualified offences - sentences not excessive - appeal dismissed.

HRNG ADELAIDE, 19 October 1992 #DATE 19:10:1992
Counsel for appellant: Mrs M.E. Shaw
Solicitors: Reilly Downs and Humphries
Counsel for respondent: Mr B.J. Jennings QC with Ms R.C. Gray
Solicitors: Director of Public Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING C.J. The appellant in August 1987 committed two offences of breaking, entering and stealing. He was sentenced in the District Court to imprisonment for 18 months with a non-parole period of 12 months. Those sentences were imposed on each of the two counts of breaking, entering and stealing, but were ordered to be served concurrently with one another. They were suspended upon the appellant entering into a bond to be of good behaviour and under the supervision of a probation officer for a period of three years. 2. During the currency of that bond on 8 September 1989, the appellant committed the offences of driving under the influence of liquor and driving in a manner dangerous to the public. On 9 December 1989, also during the currency of the bond, he committed further offences of driving with a prescribed concentration of alcohol and driving without due care. On 18 May 1990, penalties were imposed with respect to the offences committed on 8 September 1989 and 9 December 1989, and those penalties included a disqualification from holding or obtaining a driver's licence for a period of seven years. 3. Proceedings were instituted for the estreatment of the bond granted in the District Court in relation to the breaking and entering offences. Those proceedings came before Judge Nyland in the District Court on 22 November 1991. Her Honour refrained from estreating the bond and revoking the suspension of the sentence, and instead gave the appellant the opportunity of entering into a fresh bond for a period of 12 months but otherwise in the same terms as the original bond. The appellant entered into that bond. However, less than two months later on 17 January 1992, he committed offences of driving under the influence of liquor and driving whilst disqualified from holding or obtaining a driver's licence. The conduct which constituted those two offences occurred on the same occasion. 4. 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.

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Details

AGLC: Hollands v R File No. SCCRM 92/569 Judgment No. 3669 Number of Pages 4 Criminal Law and Procedure [1992] SASC 3669
Case: [1992] SASC 3669
Decision Date: 19 October 1992

CaseChat Overview and Summary

In the Supreme Court of South Australia, the Court of Criminal Appeal heard an appeal from the appellant against the revocation of a suspended sentence and the imposition of a custodial sentence for subsequent driving offences. The appellant, aged 32, had previously been convicted of two counts of breaking and entering, for which he was sentenced to 18 months imprisonment with a non-parole period of 12 months. This sentence was suspended, and the appellant was placed under supervision for three years. During the period of his supervision, the appellant committed further offences of driving while disqualified and driving under the influence. These breaches led to the appellant being brought before the District Court, which revoked the suspension and imposed a sentence of imprisonment for the driving offences, in addition to the original sentence for the breaking and entering offences.

The legal issues before the Court were whether the sentence imposed for the original offences of breaking and entering was moderate and whether the sentences for the subsequent driving offences were excessive. The Court considered the appellant's history of offending, which included multiple prior convictions for driving while disqualified and driving under the influence, and the fact that he had continued to engage in unlawful conduct during the period of his suspended sentence. The Court also considered the appellant's argument that there were special circumstances that would justify a reduction in sentence, based on his compliance with the terms of his bond and his efforts to address his alcohol problem.

The Court found that the sentence for the breaking and entering offences was moderate and that there were no special circumstances that would justify a reduction in sentence. The Court also found that the sentences for the driving offences were not excessive, given the appellant's history of similar offending and the seriousness of the offences committed. The Court held that the sentence of five months' imprisonment for driving while disqualified, when considered together with the three-month sentence for driving under the influence, reflected the total seriousness of the offending.

The Court dismissed the appeal, holding that the sentences imposed were appropriate and that there were no grounds for the Court to intervene. The Court noted that the appellant had been given a clear warning that any further offending would result in the revocation of his suspended sentence and the imposition of a custodial sentence.

The final orders of the Court were that the appeal be dismissed, and that the sentences imposed by the District Court be upheld. The appellant was required to serve the sentence of 18 months imprisonment for the breaking and entering offences, with a non-parole period of 14 months, and the concurrent sentences of five months for driving while disqualified and three months for driving under the influence, to be served cumulatively with the original sentence.

Orders