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that the appellant had spent over 7 months in custody for an unrelated matter in which proceedings were ultimately withdrawn.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 (SA). The notice was personally served and acknowledged to have been received by the defendant on 24 November 2009.
The defendant was arrested. He entered into a bail agreement, a condition of which required him not to be seated in the driver’s seat of a motor vehicle unless he was a holder of a current licence.
On 26 April 2010, the defendant was stopped by police while driving a Holden Commodore sedan on Torrens Road, Cheltenham. That conduct was a breach of section 91 of the Motor Vehicles Act and a breach of his bail agreement.
The defendant pleaded not guilty before a Magistrate. He did not dispute the underlying facts, but argued that the notice of disqualification issued by the Registrar was invalid. He submitted that, as a consequence, the prosecution had failed to prove that he was driving while disqualified from holding or obtaining a driver’s licence.
The Magistrate concluded that the notice of disqualification had been validly issued and served. The Magistrate convicted the defendant of two counts of driving whilst disqualified[1] and one count of contravening a term of his bail agreement.[2] On 24 November 2011, the Magistrate imposed a sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of six months’ imprisonment, and ordered that three months of that sentence be suspended upon the defendant entering into a three month good behaviour bond. Bail was granted pending his appeal.
[1] Motor Vehicles Act 1959 (SA) section 91.
[2] Bail Act 1985 (SA) section 17.
On 1 February 2012, a Judge of this Court dismissed the defendant’s appeals against convictions and sentence.[3] On 3 February 2012, the defendant’s bail was varied. On 10 February 2012, the Judge was informed that the defendant intended to lodge an application for permission to appeal.
[3] Hollick v Police (2012) 112 SASR 188.
Nothing further occurred until 21 November 2012, when the time to seek permission to appeal was retrospectively extended to 16 March 2012, being the date upon which the notice of appeal was lodged.
On 22 February 2013, the Full Court granted permission to appeal.[4] In its reasons, the Full Court observed that:[5]
The application raises questions concerning the nature of the duty imposed on the Registrar of Motor Vehicles by s 81B of the Motor Vehicles Act 1959 (SA) to issue notices of disqualification and the means by which the duty can be discharged with the assistance of computer technology. Those questions are of general importance. A subsidiary question concerning the scope and effect of s 140 of the Motor Vehicles Act 1959 (SA) may also arise and is of general importance.
It is to be noted that a period of over 11 months had elapsed between the filing of the notice of appeal and the grant of permission to appeal. This delay was due to the defendant’s then solicitor not prosecuting the application for permission with due diligence. The defendant remained on bail throughout.
[4] Hollick v Police [2013] SASCFC 4.
[5] Hollick v Police [2013] SASCFC 4, [2].
Following the grant of permission to appeal, the defendant’s solicitors failed to comply with the rules requiring an appeal to be set down within two months of the granting of permission to appeal. More than six months elapsed without the matter being set down. Pursuant to rule 296 of the Supreme Court (Civil) Rules 2006, the proceedings were deemed to have lapsed.
Nothing occurred until 7 April 2014, when a Judge of this Court granted the defendant leave to file an amended notice of appeal within 21 days. The Judge further ordered that the defendant file and serve an outline of argument and an appeal book within 42 days. The Court ordered that the appeal be reinstated. The defendant failed to comply with the orders.
On 26 May 2014, a further order was made granting the defendant leave to file and serve an affidavit in respect of proposed fresh evidence upon which he intended to rely, and that he file and serve an outline of argument and an appeal book by 7 July 2014.
Nothing further occurred until 1 August 2014, when an order was made that the defendant file and serve an appeal book within 14 days and file and serve an outline of argument, pursuant to the Practice Directions. On 23 January 2015, that order was extended to provide that the defendant file the appeal books by 5.00 pm on 6 February 2015.
The appeal was not set down in accordance with the Rules. When the matter came before this Court, the parties accepted that the appeal had lapsed. The defendant made an oral application to reinstate the appeal against sentence. No application was made to reinstate the appeal against conviction.
The Court was concerned about the repeated and extensive delays which had occurred in prosecuting the appeal. Counsel for the police accepted that the defendant was not responsible for the delays. In the circumstances, the Court considered that there were special reasons justifying the reinstatement of the appeal against sentence.
The notice of appeal seeking to set aside the sentence included the following grounds:
-That there was a miscarriage of justice in that the learned sentencing magistrate was not informed about a period of imprisonment for which the appellant was in remand in 2009 of about 8 months.
-The sentencing miscarried as a result of the learned magistrate not being informed of that period of imprisonment in 2009, which was a significant factor personal to the appellant and his circumstances.
The primary contention of the defendant was that counsel who had made submissions on sentence before the Magistrate had failed to advise the Magistrate that the defendant had spent over seven months in custody in respect of matters which were subsequently withdrawn, and that was a relevant matter to which the Magistrate could have regard in imposing penalty for the offences with which she was then dealing.
Counsel for the police agreed that the further material was information to which the Magistrate would have been entitled to have regard. Counsel accepted that it was appropriate that the defendant’s sentence be wholly suspended in light of the exceptional circumstances of this case. He made the following submission:
In the circumstances of this case, a suspension of the entirety of the sentence as opposed to only half as occurred below is not opposed. However, the basis upon which that submission is put is that this is an exceptional case and that, in the ordinary course, facts and antecedents of this nature would not normally result in a suspended sentence, or should not result in a suspended sentence, and that the importance of deterrence as emphasised both by the magistrate and by Nyland J at paras.44-45 of her judgment are, in fact, paramount. There is a lengthy history here of not abiding with road rules as well as the deliberate act associated with breach of bail.
However, in the circumstances, and those circumstances are that there is further evidence that was not heard at the trial, or before the single judge, that has now come to light, it is appropriate that this court consider that. That has taken some considerable period of time for that to occur and, as has already fallen from your Honour, the sentence has been hanging over the appellant for a considerable period of time.
So, on that basis, and that basis alone, of the exceptional facts of this matter, the Crown doesn't oppose the suspending of the sentence.
In re-considering the sentence, the Court had regard to an affidavit of the defendant’s then solicitor and an affidavit of the defendant. It was not disputed that the defendant was held in custody from 26 February to 19 October 2009 in respect of a matter which was eventually dismissed upon the Director of Public Prosecutions not tendering any evidence at the committal. The time spent in custody has not been the subject of any sentence of imprisonment, or otherwise been taken into account for the purposes of any other sentence of imprisonment concerning the defendant.
We had regard to the history of this matter. The defendant had been on bail for over three years and three months. The delays which occurred in this matter proceeding to completion were of no fault of the defendant. In our view, it would be unjust to require him to serve the period of three months’ imprisonment ordered by the Magistrate.
In the exceptional circumstances of this case, having regard to the extensive delay and the period the defendant has spent in custody, albeit in respect of an unrelated matter, the Court concluded that the term of imprisonment imposed by the Magistrate should be wholly suspended upon entry by the defendant into a bond to be of good behaviour for a period of three years.