Hoskins v R No. Sccrm-98-186 Judgment No. S6917

[1998] SASC 6917

HOSKINS v R

[1998] SASC 6917

Court of Criminal Appeal

Coram: Millhouse, Olsson and Debelle JJ

1. MILLHOUSE J:                   I agree with the reasons of Debelle J.

2. OLSSON J:  I also agree.

3. DEBELLE J (ex tempore):  This is an appeal against sentence. 

4. The appellant pleaded guilty to the offence of illegally using a motor car.  The motor car, the subject of the offence, had been stolen some time during the morning of 31 December 1996.  The appellant was then living in a house not far from where the motor car had been stolen.   At some time during the morning of 31 December, the appellant wanted to go to a shop which was some 400 to 500 metres from his house.  As he was about to go to the shop, he was visited by a friend.  The friend agreed to take him to the shop and then back to his house in the car which he was driving.  The friend did not have the keys to the car.   The appellant questioned him about that fact.  He was told that the motor car had been stolen.  Nevertheless, he accepted the offer.  Thus, the appellant went with his friend for a ride in the car knowing that it had been stolen. 

5. The appellant was sentenced to imprisonment for a period of 14 months.  In addition, he was disqualified from holding or obtaining a driving licence for a period of 12 months.  At the time when he was sentenced, the appellant was serving a period of 18 months imprisonment for other offences.  The non-parole period was 12 months, commencing on 20 February 1998.  The sentencing judge was, therefore, required to review the non-parole period.  He extended it by seven months, fixing a new non-parole period of 19 months commencing on 20 February 1998. 

6. The appellant appeals on the ground that the penalty is manifestly excessive, submitting that the sentencing judge erred in placing undue weight on his past record and insufficient weight on the relatively minor nature of the offence. 

7. The appellant has a shocking record for a man 25 years old.  He has committed many offences of dishonesty as well as serious driving offences.  His record includes at least 19 prior offences of illegally using a motor vehicle.  By reason of his prior offending, the appellant was liable to a period of imprisonment ranging from a minimum of three months to a maximum of four years, together with an order disqualifying him from holding or obtaining a driving licence for a period of 12 months. 

8. If regard is had to the agreed basis of offending, this was a relatively minor offence.  The appellant had not stolen the motor car, although it is clear that he knew that the car had been stolen.  He did no more than participate in a relatively short ride to and from a shop some 500 metres from his house.  Although the fact that the appellant merely accepted a ride in the car entitles him to be treated more leniently than a person who had stolen the car, the sentence should necessarily be a sufficient deterrent to the appellant and to those that are minded to behave in this way.  This is an extremely prevalent offence.  There can be no doubt that one element in the attraction to those who steal cars is being able to drive friends and acquaintances in them.  Stern penalties to those that accept rides may make them less willing to accept a ride in a stolen motor car and, perhaps, reduce one attraction in stealing them.  In addition, this appellant has not been deterred by penalties, including periods of imprisonment for previous offences of illegal use of a motor vehicle.  The judge was, therefore, entitled to order a severe sentence. 

9. The sentencing judge had regard to the appellant's plea of guilty and discounted the sentence by 25 per cent.  On that footing, he ordered a sentence of about 18 months imprisonment.  The appellant submits that such a penalty is altogether too excessive for this course of offending and so demonstrates the trial judge had erred in giving too much weight to his prior offending and too little weight to the relatively minor nature of the offence. 

10. In my view, this was a relatively minor degree of offending.  Even taking into account the appellant's appalling record, this was an extraordinarily high penalty.   Notwithstanding both personal and general deterrence were required, I think that, in all the circumstances, the sentence is excessive for the offending involved.  It indicates that the judge has had too much regard to the appellant's poor record.  The penalty leaves little room for appropriate penalties for offending of a more serious kind than that which occurred on this occasion.  In my view, a period of eight months imprisonment would be a more than sufficient period of imprisonment for what, at the end of the day, was a relatively short ride in this stolen motor car. 

11. I would, therefore, reduce the head sentence to a head sentence of eight months imprisonment.   I would adjust the non-parole period to extend it by a further four months in lieu of the seven months fixed by the sentencing judge.  There would, therefore, be a new non-parole period of 16 months.