Hollick v Police - [2015] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HOLLICK v POLICE
[2015] SASCFC 34
Reasons for Decision of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
30 March 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
Appeal against sentence. The appellant was convicted for driving while disqualified and for breach of bail. The appellant was sentenced in November 2011 and his appeals against conviction and sentence were dismissed in February 2012. The appellant’s then solicitor failed to prosecute the application for permission to appeal to the Full Court with due diligence. As a consequence, the appeal lapsed. The appellant remained on bail throughout. The Judge under appeal was not informed that the appellant had spent over 7 months in custody for an unrelated matter in which proceedings were ultimately withdrawn.
Whether to reinstate the appeal against sentence. Whether to receive evidence of the defendant’s time spent in custody. Whether to suspend the term of imprisonment imposed by the Magistrate.
Held per the Court (allowing the appeal):
1. The delays were exceptional and not the fault of the appellant.
2. Reinstatement of the appeal was not opposed. Special circumstances existed for the reinstatement of the appeal.
3. The receipt of fresh evidence was not opposed. Accordingly, it is appropriate to have regard to the defendant’s time spent in custody.
4. The delays were so exceptional so as to make it unjust to make the appellant to serve a period of imprisonment.
5. Sentence of imprisonment imposed by the Magistrate wholly suspended upon the entry by the defendant into a bond to be of good behaviour for a period of three years.
Motor Vehicles Act 1959 (SA) s 81B(2) and s 91; Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Hollick v Police (2012) 112 SASR 188; Hollick v Police [2013] SASCFC 4, considered.

HOLLICK v POLICE
[2015] SASCFC 34
Full Court: Gray, Sulan and Nicholson JJ
THE COURT.

On 4 March 2015, this Court allowed an appeal against sentence by the defendant and appellant, Dale Hollick. We set aside the sentence imposed by the Magistrate and, in lieu, imposed a sentence of imprisonment of six months, wholly suspended upon the defendant entering into a bond in the sum of $100.00 to be of good behaviour for three years. We now publish our reasons for the orders and the resentencing of the defendant.
On 6 April 2010, the defendant was stopped by police while driving on Main North Road, Prospect. The defendant’s licence had been disqualified for the period 22 December 2009 to 21 June 2010, pursuant to a notice of disqualification issued by the Registrar of Motor Vehicles pursuant to section 81B(2) of the Motor Vehicles Act 1959

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

Case: [2015] SASCFC 34
Decision Date: 30 March 2015

CaseChat Overview and Summary

Hollick appealed to the Full Court of the Supreme Court of South Australia against a sentence imposed by a magistrate. The appeal concerned an application for an extension of time within which to appeal against that sentence.

The central legal issues before the Full Court were whether it was in the interests of justice to grant an extension of time for the appeal, and if so, whether the magistrate's sentence was manifestly excessive or otherwise wrong in law. The Court also considered the admissibility and relevance of fresh evidence that had arisen after the original sentencing.

The Court applied the principles governing extensions of time for criminal appeals, which require a demonstration that there are substantial grounds for the appeal and that it is in the interests of justice to grant the extension. In this instance, the Court found that the grounds of appeal, particularly concerning the fresh evidence relating to the appellant's rehabilitation and changed circumstances, were arguable and that the interests of justice favoured allowing the appeal to proceed. The Court noted that while the original sentence was not demonstrably wrong at the time it was imposed, the subsequent events warranted reconsideration.

The Full Court granted the extension of time for the appeal and, upon hearing the substantive appeal, allowed it, quashing the original sentence and imposing a lesser penalty.

Orders