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 appellant came before Judge Stevens in the District Court with respect to those two offences, and also with respect to an application to estreat the bond, and to revoke the suspension of the sentence for the breaking and entering. Her Honour estreated the bond and ordered that the suspension be revoked. In addition, she imposed a sentence of imprisonment for driving under the influence of three months, and a further sentence of five months' imprisonment for driving while disqualified. She made the two last mentioned sentences concurrent with one another, but ordered that they be served cumulatively upon the sentence for breaking and entering. She imposed a licence disqualification of six years and extended the 12 months non-parole period to 14 months. 5. This is an appeal against those orders. Mrs Shaw, who appeared for the appellant, has argued that there exist special circumstances which should lead this Court to reduce the sentence to be served for the breaking and entering offences pursuant to s.58(4) of the Criminal Law Sentencing Act, and that the sentences for driving under the influence and driving whilst disqualified are excessive. The appellant is now 26 years of age. He has a long record of previous offending. That record includes three convictions for driving whilst disqualified prior to the present breaching offence. It also includes four prior drink-driving offences prior to the present breaching offence. In addition to the breaking and entering offences to which reference has been made, there are also two other offences of dishonesty, both of them antecedent to the breaking and entering offence. One was larceny as a juvenile in May 1983, and the other was stealing when he was an adult in November 1985. 6. There are other prior offences. Moreover since the breaking and entering offences the appellant has been convicted of possessing implements, and possessing cannabis, and on 18 May 1990 he was convicted of driving under the influence and driving at a dangerous speed and exceeding the prescribed concentration of alcohol, and driving without due care. There was also a conviction on 13 July 1991 for assault, but, as Mrs Shaw has pointed out, that was a minor if not trivial offence. 7. Mrs Shaw's argument that special circumstances exist in the present case which would justify a reduction of the sentence, was based substantially upon the fact that the appellant, since his conviction for breaking and entering, has not been convicted of any offence involving dishonesty, or any offence which suggests that he has relapsed into a criminal way of life. She has argued, moreover, that there are indications that he no longer keeps the bad company which led him into those offences, and that since the appearance before Judge Nyland, his alcohol problem has been recognised and some action taken to overcome it. She contends that if what is now known about the appellant, had been known to Judge Lewis at the time, it would have been reasonable for him to have imposed a lesser sentence, and in particular a lesser non-parole period than he in fact imposed. 8. It seems to me that the sentence imposed for breaking and entering was a reasonable and moderate sentence for that offence. In saying that I treat the offences as substantially one offence, although charged as two offences; it appears that they arose out of the same incident, the appellant having broken into a clubroom and a shed nearby on the same occasion. Nevertheless, the sentence of 18 months' imprisonment, with a non-parole period of 12 months, is a reasonable and proper sentence for that conduct, particularly having regard to the fact that there were prior convictions, including two for dishonesty. 9. As to the events which have occurred since those convictions, it seems to me that if the learned judge at the time had been able to foresee the nature of the appellant's conduct since that time, it would not have inclined him to reduce the sentence. As I pointed out, the appellant has not led the life of a law abiding citizen since his conviction for those offences. It is true that he has not committed other offences involving dishonesty or serious criminal conduct, but nevertheless he has engaged in conduct which is a clear defiance of the law. This is not a case of a person who has led, even apart from the breaching offences, an exemplary life since the suspension of the sentence in question. 10. I am unable to see anything in the facts of this case which could constitute special circumstances, so as to justify a reduction of the sentence, which was otherwise a proper sentence for breaking and entering. 11. As to the sentences for the driving offences which are the breaching offences, it is true, as Mrs Shaw points out, that the sentence of five months for driving whilst disqualified is close to the maximum of six months; but there are two very important considerations to be borne in mind. The first is that the sentence of three months' imprisonment for driving under the influence was made concurrent with the sentence of driving whilst disqualified. It seems to me that the sentence of three months for driving under the influence, considered in itself was a proper sentence for that offence, considering the prior drink driving offences. The sentence of five months must reflect the total seriousness of the wrongdoing involved in the two offences of driving under the influence and driving whilst disqualified. It is true that those two offences were committed on the same occasion, but the degree of seriousness of the wrongdoing involved in the driving is greatly increased by the fact that two serious offences were involved. 12. The Supreme Court has frequently stressed the seriousness of the offence of driving whilst disqualified, involving as it does a defiance of an order of the court, and striking, as it does, at the foundation of the system of punishment by means of licence disqualification. 13. The learned judge could have imposed separate sentences for driving under the influence and driving whilst disqualified, and made them cumulative, and perhaps that would have been a better approach to the present situation; but the judge having decided upon the course of making the sentences concurrent with one another, it was essential that the total sentence reflect the total degree of seriousness involved in the two offences. Viewed in that light, it seems to me that the sentence of five months' imprisonment is by no means excessive. 14. The second consideration is the appellant's record, particularly with respect to driving while disqualified and drink driving. 15. I therefore see no basis upon which this court should intervene to reduce the sentence for breaking and entering, nor to reduce the sentences for the driving offences. In my opinion the appeal should be dismissed.

JUDGE2 COX J. I agree.

JUDGE3 MATHESON J. I also agree. I merely add two thoughts. First of all I have been particularly influenced by the fact that her Honour Judge Nyland, in dealing with the appellant on 22 November 1991, said in clear terms that this was the appellant's last chance to expect any leniency to be granted. 2. Second, it seems to me surprising that the legislature has not provided for greater penalties for subsequent offences for the offence of driving whilst under suspension, and, speaking for myself, I consider that attention should be given to that matter.