R v Howrie - [2004] SADC 134

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HOWRIE
Reasons for Sentence of His Honour Judge Smith
1 October 2004
CRIMINAL LAW
Sentencing - multiple offences - 13 offences including 2 for possession of drugs for sale - penalties include imprisonment, fines and licence disqualification - consideration of imposing global penalty pursuant to s18A Criminal Law (Sentencing) Act - discussion of impermissibility of imposing global penalty of imprisonment for offences for which penalty prescribed is only a fine - global penalty of imprisonment arrived at by fixing notional penalties discounted for pleas of guilty and having regard to principles of totality - discussion of relevance of drug addiciton and dependent children in mitigating appropriate penalty.
Criminal Law (Sentencing) Act s18A; Controlled Substances Act 1984 s52, referred to.
Hermel v Police (2000) 76 SASR 336; R v Tu (2001) 216 LSJS 279; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235; R v Mangelsdorf (1995) 66 SASR 60; R v Proom (2003) 85 SASR 120; R v Blocki (1991) 56 SASR 250; Hewitt v Police (Unreported S6002); Milosevski v Police [2000] SASC 342 , considered.

R v HOWRIE
[2004] SADC 134

Lana Therese Howrie has pleaded guilty to 13 offences. These are as follows:
·Possessing a controlled substance (ie methylamphetamine and cannabis) for sale (major indictable-2 counts),
·Possess prescription drug (2 counts),
·Breach bail agreement,
·Dishonestly take property without owner’s consent,
·Drive motor vehicle with no number plates,
·Drive or use motor vehicle without consent,
·Drive motor vehicle with registration label issued with respect to another motor vehicle,
·Drive vehicle without licence and,
·Breach Community Service Order (3 counts).
On the 18^th May 2004 in this Court the defendant pleaded guilty to the two major indictable offences listed above. On the same date, at the request of her counsel, other outstanding Magistrates Court files were called up. On the 22^nd June 2004 again in this Court the defendant pleaded guilty to 10 of the summary offences listed above. She had already pleaded to one offence in the Adelaide Magistrates Court.
Thus, I have before me in total the 13 offences, listed above.
Circumstances of Offending
[DCCRM-04-526] On 1^st August 2002, the defendant was ordered to serve 75 hours of Community Service, by the Magistrates Court of South Australia. This was to be completed within six months of the order being granted [hence 31^st January 2003]. The defendant ended up performing 6½ hours of these 75 outstanding hours, but there were numerous breaches of compliance, resulting in finally a suspension letter being sent to the defendant on 28^th February 2003. This constituted one count of breaching a community service order.
[DCCRM-04-531] On 2^nd October 2002, the defendant was ordered to serve a further 108 hours of community service within eighteen months of the order being made [hence 1^st April 2004]. This was imposed for 4 offences. The defendant exceeded the speed limit on 7

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 R v Howrie

Details

AGLC: R v Howrie [2004] SADC 134
Case: [2004] SADC 134
Decision Date: 1 October 2004

CaseChat Overview and Summary

Lana Therese Howrie was convicted of 13 offences, including possession of drugs for sale, possession of prescription drugs, theft, driving offences, and breaching a community service order. The District Court of South Australia heard the case, and the primary legal issue was determining an appropriate sentence for the multiple offences. The court considered imposing a global penalty of imprisonment under section 18A of the Criminal Law (Sentencing) Act, taking into account the principles of totality, the defendant's guilty pleas, and the prescribed penalties for each offence. The court also considered the defendant's drug addiction and the impact of imprisonment on her dependent children as mitigating factors.

The court calculated the notional penalties for each offence and then applied a 25% discount for the defendant's guilty pleas, resulting in a total notional sentence of 15 months and 19 days. Taking into account the 2 months and 12 days the defendant had already spent in custody, the court determined a final term of imprisonment of 13 months and 7 days, with a non-parole period of 7 months. The court also imposed a 12-month licence disqualification for the offence of illegal use. The court decided to suspend the term of imprisonment and impose a bond in the defendant's own recognizance, provided she complied with certain conditions, such as undergoing counselling and treatment for substance abuse, abstaining from illicit drugs and non-prescribed medication, and submitting to urine analysis. The court also ordered forfeiture of the seized drugs and drug paraphernalia under section 52A of the Controlled Substances Act 1984.

Orders