Police v DENG - [2017] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DENG
[2017] SASC 151
Judgment of The Honourable Justice Kelly
20 October 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Prosecution appeal against a sentence imposed by a Magistrate. The respondent was sentenced for a number of offences including two counts of driving while disqualified and breach of a good behaviour bond. That bond was entered into by the respondent as a result of being convicted of driving while disqualified and included a suspended sentence of seven days imprisonment. The respondent breached that bond by, among other things, once again driving while disqualified. His explanation for driving on that occasion was that he was going to get food for his girlfriend.
The Magistrate found proper grounds to excuse the breach and extended the term of the bond by three months. For the drive while disqualified charges the Magistrate imposed a single penalty of 31 days home detention. The appellant complains that the Magistrate erred in finding proper grounds to excuse the breached bond and erred in principle in ordering that the sentence of 31 days imprisonment be served home detention.
Held (allowing the appeal):
1.      The Magistrate erred in his approach to the question of whether there were proper grounds to excuse the breach of the suspended sentence bond by failing to adequately address the fact that there was no compelling reason provided by the respondent on each occasion for him to be driving and failing to address the issue of whether the driving by the respondent in those circumstances evidenced a dismissive attitude to the previous orders.
2.      In the circumstances it would be unjust to impose any further sentence for the two offences of driving while disqualified, however it is in the interests of justice that the respondent be required to serve some time in custody.
3.      The sentence of the Magistrate excusing and extending the bond set aside. The order of suspension of the sentence of seven days imprisonment revoked.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 33BB, s 58, referred to.
R v Buckman (1988) 47 SASR 303; Police v Nissen (2014) 120 SASR 50, applied.
Police v Vannarath [2015] SASC 187; Johnson v SA Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995); Reynolds v R (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 27 October 1995), considered.

POLICE v DENG
[2017] SASC 151
Magistrates Appeal: Criminal
KELLY J.

This is a prosecution appeal against a sentence imposed by a Magistrate on 31 May 2017.
On that date the respondent was sentenced for a number…

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.

Continue reading Police v DENG

Details

AGLC: Police v DENG [2017] SASC 151
Case: [2017] SASC 151
Decision Date: 20 October 2017

CaseChat Overview and Summary

The appellant challenged the decision of the Magistrates Court, arguing that the Magistrate erred in excusing the breach of the suspended sentence bond and in ordering that the sentence for the two offences of driving while disqualified be served on home detention. The respondent, who had been convicted of multiple driving while disqualified offences and had previously breached a bail agreement, was sentenced by the Magistrate on 31 May 2017. The Magistrate excused the breach of the bond entered on 17 June 2016 and extended its term by three months. For the two driving while disqualified offences, the Magistrate imposed a sentence of 31 days imprisonment to be served on home detention.

The legal issues before the court were whether the Magistrate erred in excusing the breach of the bond and in ordering home detention for the driving while disqualified offences. The court considered the principles of sentencing, the nature and circumstances of the breaches, and the appropriateness of the home detention order. The respondent argued that the Magistrate should not have excused the breach of the bond and that the home detention order was inappropriate. The appellant contended that the Magistrate's decision was correct and that the sentence was appropriate given the respondent's history of offending and the seriousness of the breaches.

The court found that the Magistrate did not err in excusing the breach of the bond and that the home detention order was appropriate. The court noted that the Magistrate had considered the principles of sentencing, the nature and circumstances of the breaches, and the respondent's history of offending. The court held that the Magistrate's decision was within the range of reasonable outcomes and that there was no error in the decision to excuse the breach of the bond. The court also found that the home detention order was appropriate given the respondent's history of offending and the seriousness of the breaches. The court held that the Magistrate had properly exercised their discretion in imposing the sentence.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant complains that the Magistrate erred in finding proper grounds to excuse the breach of the bond entered into by the respondent for the offence of driving while disqualified and erred in principle in ordering that the sentence of 31 days imprisonment for the two offences of driving while disqualified be served on home detention.Background On 17 June 2016 the respondent was convicted of the offence of driving while disqualified on 25 January 2016 (the first drive while disqualified charge). For that offence he was sentenced to seven days imprisonment which was suspended upon the respondent agreeing to enter into a 12 month good behaviour bond. Prior to that date the respondent had been charged with the theft of a mobile phone and had entered into a bail agreement which included a condition that he was not to enter certain areas in the Adelaide CDB. On 22 November 2016, the respondent pleaded guilty to breaching that agreement by entering the Adelaide CBD on 9 October 2016. On that date he also pleaded guilty to the charge of theft. On the same date, 22 November 2016, the respondent also pleaded guilty to driving a vehicle while having a prescribed concentration of alcohol in his blood and driving a motor vehicle while disqualified on 14 May 2016 (the second drive while disqualified charge). On 23 January 2017 the respondent pleaded guilty to driving a motor vehicle while disqualified on 3 September 2016 (the third drive while disqualified charge). When the respondent came to be sentenced by the Magistrate on 31 May 2017 he admitted that the breach of bail and the third drive while disqualified charge, committed on 3 September 2016, breached the suspended sentence bond he had entered into on 17 June 2016. On that date the Magistrate dealt with the breached suspended sentence bond, and a second breached bond, and then sentenced the respondent in relation to the second and third drive while disqualified charges, the theft charge, the breach of bail and the charge of driving while having a prescribed concentration of alcohol in his blood. The Magistrate’s sentence with respect to the second breached bond, the theft charge, the breach of bail and the charge of driving while having a prescribed concentration of alcohol in his blood is not the subject of this appeal. The Magistrate excused the breach of the bond entered into on 17 June 2016 and then extended the term of that bond by a period of three months pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). For the second and third drive while disqualified charges committed on 14 May 2016 and 3 September 2016, the Magistrate imposed a single penalty of 31 days imprisonment to be served on home detention. The reasons of the Magistrate The Magistrate correctly observed that the less serious breach of the suspended sentence bond was the offence of breach of bail which was committed on 9 October 2016. He then turned to consider the second breach of the suspended sentence bond constituted by the commission of the third offence of driving while disqualified which was committed on 3 September 2016.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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