Jason Sean Bowden v R No. SCCRM 94/210 Judgment No. 4638 Number of Pages 3 Criminal Law and Procedure

[1994] SASC 4638

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Criminal law and procedure - sentence - driving motor vehicle without consent, damaging property, driving without due care, inadequate lights, unregistered and uninsured vehicle - imprisonment 10 months with 12 month licence disqualification - revocation of previous suspension of previous sentences of 4 years and 9 months but made concurrent - total period of imprisonment 4 years 10 months - non-parole period 3 years 2 months - no principle requiring reduction of suspended sentence because offender has performed community service - no error in sentencing process.

HRNG ADELAIDE, 22 June 1994 #DATE 22:6:1994

Counsel for appellant:     Mr D F Stokes

Solicitors for appellant:    David Stokes and Associates

Counsel for respondent:     Mr S A Millsteed

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed

JUDGE1 KING CJ This is an appeal against a sentence imposed in the District Court.

2. The appellant pleaded guilty to a number of offences committed on 25 September 1993. Those offences were driving a motor vehicle without consent, two counts of damaging property, one count of driving without due care, one count of driving with inadequate lights, one count of driving an unregistered vehicle, one count of driving an uninsured vehicle.

3. The circumstances were that the appellant and friends had been camping. There was a tractor in a shed on property. The appellant and his friends went to the shed. He drove the tractor out of the shed, another youth took over. The tractor was involved in an accident, caused damage to fences and overturned. The damage to the fences was of the order of about $2,000 and to the tractor $5,567. The appellant suffered injury in the accident and suffers residual effects of that injury.

4. The offences constituted a breach of two bonds into which the appellant had entered.

5. On 11 June, 1993 he was convicted of building breaking and larceny. He was sentenced to imprisonment for nine months but that sentence was suspended upon his entering into a bond to be of good behaviour. On 26 July 1993 he was convicted of arson and was sentenced to four years imprisonment with a three year non-parole period suspended on his entering into a bond to be of good behaviour also.

6. A condition of the first bond was that he perform 120 hours community service. A condition of the second bond was that he perform 240 hours of community service. He has performed all that community service.

7. The learned judge revoked the suspension of the two sentences, but ordered that they be served concurrently with one another making a total of four years imprisonment. For the breaching offences he imposed a sentence of imprisonment for ten months making a total period of imprisonment of four years and ten months. He extended the previous non-parole period from three years to three years and two months.

8. On the appeal, counsel for the appellant did not challenge the revocation of the suspended sentences, and indeed, it would have been hopeless to have attempted to do so. He contended, however, that the sentence of ten months was excessive and that the non-parole period ought not to have been extended.

9. He made two points, the first was that the driver of the tractor at the time of the accident had been sentenced in the Magistrates Court to imprisonment for four months. The second was that the sentence, and, in particular, the extension of the non-parole period ought to have been affected by the fact that the appellant had served his community service with respect to the suspended sentences.

10. As to the first point, it is sufficient to say that the record of the other person involved in this offence differed from that of the present appellant. The present appellant has a record of prior offending which includes a conviction for illegal interference on 28 May 1993, the building breaking and felony offence to which I have already referred on 11 June 1993, possession of cannabis, possession of equipment and exceeding a speed zone on 22 June 1993, the arson offences to which I have already referred on 26 July 1993 and a traffic offence for exceeding the speed zone limit on 6 August 1993. The breaching offences were committed within about three months of the suspended sentence on 26 July 1993.

11. In my opinion the sentence of ten months imprisonment was a moderate sentence for the offences which were committed on 25 September 1993, particularly having regard to the appellant's record. I cannot see any principle which obliged the learned judge to give effect to the community service which the appellant had already performed in fixing the new non-parole period or the sentence for the breaching offences.

12. An offender whose sentence is suspended is given the opportunity of avoiding serving the proper sentence for the crime for which he has been committed by fully complying with the conditions of the bond into which he enters. If his compliance with the conditions is only partial and he fails to comply with certain of the conditions of the bond, he exposes himself to having to serve the sentence which was the proper sentence for the crime or crimes which he committed.

13. Clearly the fact that he has served the community service would not amount to proper grounds for refraining from revoking the suspension within s.58(3) of the Criminal Law Sentencing Act, nor would it amount to special circumstances justifying reduction of the suspended sentence. I am not prepared to say that there are no circumstances in which it might not be a relevant consideration in fixing a new non-parole period to cover both the sentence for the breaching offences and the sentence, suspension of which has been revoked. In the present case, however, the learned judge extended the non-parole period by only two months. There is certainly no principle which requires the judge to refrain from extending the non-parole period, and, on the contrary, I think in the circumstances of the present case he was bound in justice to do so. In fact, the extent to which the non-parole period was extended is merciful.

14. In my opinion, no fault can be found with the orders made by the learned sentencing judge and I dismiss the appeal.

15. I should add that at the time of imposing the sentence the learned judge also imposed a sentence of imprisonment for three months for driving whilst disqualified and that sentence was ordered to be served concurrently with the ten month sentence. The judge imposed the compulsory period of licence disqualification of 12 months in respect of that matter.

JUDGE2 PRIOR J I agree.

JUDGE3 PERRY J I agree.