R v Hiscock No. Sccrm-01-297

[2002] SASC 11

R v HISCOCK
[2002] SASC 11

Court of Criminal Appeal:  Perry, Wicks and Gray JJ

1. PERRY J. (ex tempore) Pursuant to leave, the appellant appeals against the sentence imposed upon him following his plea of guilty in the District Court to a charge that on 21 October 2000 at North Adelaide he received liquor to the value of $226 the property of John Swanson knowing it to have been stolen contrary to s 196 of the Criminal Law Consolidation Act 1935.

2. The appellant was sentenced to imprisonment for 10 months, which was suspended upon his entry into a two year good behaviour bond in the sum of $200.

3. During the course of submissions on penalty before the learned sentencing judge in the District Court, Mr Anders, who appeared for the prosecution stated:

   “As far as Mr Hiscock’s plea is accepted on the basis outlined by my friend, given the complete absence of offences, no priors for offences of dishonesty, given the limited value of the items, given his inebriation, all of the factors raised by my friend, I am instructed not to oppose your Honour dealing with this matter by way of pecuniary penalty.”

4. The learned sentencing judge was, of course, not bound by that intimation and, indeed, proceeded to impose the penalty to which I have just referred. Even so, the intimation is significant in that it indicates the category of seriousness in which the matter was viewed by the prosecution.

5. It is unnecessary in the circumstances to go further into the precise circumstances of the offending, as this Court thought it proper, when the matter was called on, to invite counsel to consider whether or not a penalty other than the custodial penalty which was imposed might, in all the circumstances of the case, given the matters referred to by counsel for the prosecution in the District Court, be appropriate.

6. Quite properly the Director of Public Prosecutions who appeared for the respondent intimated that if the court proceeded on the basis which I will shortly come to, he would not wish to advance an argument against that course. The appellant who is present in court gave similar instructions to his counsel, Mr Braithwaite.

7. In those circumstances, in my opinion, the matter should be dealt with on the basis of the intimation which the court has given to counsel. That is:

   1.That the appeal be allowed.

   2.That the sentence under review be set aside and in lieu thereof there be a conviction, and that the appellant be released on a bond in his own recognisance in the sum of $500 for a period of 12 months on the following conditions:

   (i)That he be of good behaviour for the period of the bond and comply with all of the conditions of the bond.

   (ii)That he appear before a court for sentence on the offence in question if he disobeys any of the conditions of the bond.

   (iii)That he be under the supervision of a probation officer for the period of the bond and obey all of the lawful directions given to him by the probation officer.

   (iv)That he report within two working days of having signed the bond at the offices of the Department of Correctional Services at the place designated in the bond.

8. For the reasons given, I would dispose of the appeal on that basis.

9. WICKS J:               I agree.

10. GRAY J:                 I agree.

11. PERRY J:               The order of the court will be as I have intimated.