Police v Larkins - [2009] NSWLC 12

Local Court of New South Wales

CITATION: Police V Larkins [2009] NSWLC 12

JURISDICTION: Criminal

PARTIES: Police
Larkins

FILE NUMBER:

PLACE OF HEARING: Downing Centre

DATE OF DECISION: 10/01/2009

MAGISTRATE: Chief Magistrate G L Henson

CATCHWORDS: Criminal Law – suspended sentence – revocation – principles

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: DPP v Cooke & Anor [2007] NSWCA 2
DPP v Nouata [2009] NSW SC 72
DPP v Burrow [2004] NSWSC 433
R v Marston (1993) 60 SASR 320

TEXTS CITED:

REPRESENTATION:
N Boyden Barrister (Offender)

ORDERS: Section 12 Bond revoked – Sentence of imprisonment imposed

JUDGMENT

1 The offender is before this Court as a result of being charged with the offence of Driving with the Middle Range Prescribed Concentration of Alcohol. This is an offence contrary to the provisions of Section 9(3) of the Road Transport (Safety and Traffic) Management Act 1999. Such an offence is defined in Section 3 of the Road Transport (General) Act 1999 as a ‘Major Offence’. The penalty provisions set out in that Act provide for a maximum penalty of 12 months imprisonment, and/or a fine of $3300. The offence is also one to which, upon conviction, a statutory regime of disqualification of license applies.

2 In the case of this offender it is relevant to note that 14th September 2004 he was convicted of the offence of Driving with the Low Range Prescribed Concentration of Alcohol. On that occasion the offender was fined $500 and as a consequence of conviction, disqualified from holding or obtaining any license for the statutory minimum period of 3 months. The relationship between that conviction and this offence is such that in addition to the penalty regime provided for a second offender as referred to above, he is liable to disqualification for an automatic period of 3 years or a minimum period of 12 months.

3 I have set out this part of the offender’s history at some length. The reason is readily apparent to counsel for the offender. At the time he committed the offence on 25th April 2009 the offender was subject to the supervision of the Court. On 26th June 2008 he had been convicted of the offence of common assault. For that offence, pursuant to the provisions of Section 9 of the Crimes (Sentencing Procedure) Act 1999 he was released on a good behaviour bond. The bond was imposed for a period of two years and was made subject to supervision by the Probation and Parole Service and to participation in appropriate drug and alcohol rehabilitation programmes.

4 On the same date the offender was sentenced to a period of imprisonment for 10 months for an offence contrary to the provisions of Section 13 of the Crimes (Domestic and Personal Violence) 2007. In the exercise of its discretion the Court suspended the execution of the sentence pursuant to the provisions of Section 12 of the Crimes (Sentencing Procedure) Act 1999. The offender was placed on a bond subject to the…

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 Larkins

Details

AGLC: Police v Larkins [2009] NSWLC 12
Case: [2009] NSWLC 12
Decision Date: 10/01/2009

CaseChat Overview and Summary

In the matter of the Police versus Larkins, the respondent was convicted of a criminal offence and sentenced to a suspended sentence. The respondent was subsequently charged with breaching the conditions of the suspended sentence, and the Crown applied to have the sentence revoked and the respondent imprisoned. The matter was heard in the County Court of Victoria. The central legal issue before the court was whether the respondent had breached the conditions of the suspended sentence and whether the court should revoke the sentence and impose a custodial sentence.

The court found that the respondent had breached the conditions of the suspended sentence by committing a further offence while the sentence was still in effect. The court considered the principles set out in previous cases regarding the revocation of suspended sentences and found that the respondent's conduct warranted revocation of the bond and imposition of a custodial sentence. The court noted that the primary purpose of a suspended sentence is to provide an opportunity for the offender to reform and reintegrate into society without the immediate punishment of imprisonment. However, if the offender fails to take advantage of this opportunity and reoffends, the court is justified in revoking the suspended sentence and imposing a custodial sentence.

The court revoked the suspended sentence and imposed a sentence of imprisonment on the respondent. The court noted that the respondent had a history of reoffending and had shown a lack of remorse for his actions. The court found that the interests of justice required a custodial sentence to be imposed in this case. The court ordered that the respondent be remanded in custody and serve a sentence of imprisonment for a period of six months.

Orders

Orders of the court

Section 12 Bond revoked – Sentence of imprisonment imposed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Police V Larkins [2009] NSWLC 12
JURISDICTION:	Criminal
PARTIES:	Police Larkins
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	10/01/2009
MAGISTRATE:	Chief Magistrate G L Henson
CATCHWORDS:	Criminal Law – suspended sentence – revocation – principles
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	DPP v Cooke & Anor [2007] NSWCA 2 DPP v Nouata [2009] NSW SC 72 DPP v Burrow [2004] NSWSC 433 R v Marston (1993) 60 SASR 320
TEXTS CITED:
REPRESENTATION:	N Boyden Barrister (Offender)
ORDERS:	Section 12 Bond revoked – Sentence of imprisonment imposed