R v KINVIG

[2013] SASCFC 132

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KINVIG

[2013] SASCFC 132

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)

9 December 2013

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

The applicant entered a plea of guilty to the offence of driving whilst disqualified, committed on 19 October 2012.  As a consequence of the guilty plea, the applicant was in breach of a suspended sentence bond which had been imposed in the District Court on 10 February 2012.  The applicant admitted the breach of that bond.

The Judge declined to suspend the sentence and found that the breach was not trivial and that there were no proper grounds to exercise the discretion pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA). The Judge also found that there were no special circumstances calling for an exercise of the discretion conferred by s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA). The applicant was subsequently sentenced to a total period of 15 months and two weeks imprisonment with a non-parole period of nine months. The sentence comprised of a term of four months and two weeks imprisonment for the offence of driving whilst disqualified which was ordered to be served cumulatively on the period of 11 months imprisonment, the suspension of which had been revoked.

The applicant seeks permission to appeal against sentence on the grounds that the Judge erred in: revoking the suspended term of imprisonment in that the consequence of the revocation was disproportionate to the gravity of the offending; not exercising the discretion available under s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA); imposing a penalty for the offence of driving whilst disqualified which was manifestly excessive; and, not exercising the discretion to suspend the sentence imposed for the offence of driving whilst disqualified.

Held (dismissing the application):

(1) The decision not to suspend the sentence of imprisonment was not manifestly unreasonable ([5]).

(2) It is not arguable that there is any disproportion in this case ([6]).

(3) It is not arguable that there was reason to reduce the term of the suspended sentence ([7]).

(4) Permission to appeal to refused ([1] and [8]).

Criminal Law (Sentencing) Act 1988 (SA) s 58, s 58(3), s 58(4); Motor Vehicles Act 1959 (SA) s 91, referred to.

R v KINVIG
[2013] SASCFC 132

Court of Criminal Appeal:  Kourakis CJ, Gray and Peek JJ

1. THE COURT:      This is a renewal of an application for permission to appeal against a sentence imposed in the District Court, permission having been refused by a Judge of this Court on 14 October 2013.  On 18 November 2013 this Court refused permission to appeal on the renewed application.  We now publish our reasons.

2. On 19 October 2012 the applicant drove whilst disqualified after his wife, who had driven him to a party in her car, left the applicant and the car at the place of the party and returned home by other means.  At the time the applicant was subject to a bond to be of good behaviour entered into on 10 February 2012 in the District Court on the suspension of a sentence of 11 months imprisonment imposed for trafficking and possession of drug offences and an offence of driving dangerously to escape police (collectively referred to as the drug offences).

3. The applicant was born on 17 September 1984 in New Zealand.  He had a troubled childhood.  He moved to South Australia when he was 17 years old.  He has worked largely in unskilled and semi-skilled labouring jobs.  The applicant has a long history of illicit drug dependence but at the time of his sentencing on the drug offences claimed that he was drug free.  The applicant is in a relationship of several years standing and has a step-daughter and son from that relationship. 

4. The Judge imposed a sentence of four months and two weeks imprisonment for the offence of drive disqualified, reduced from six months for the applicant’s guilty plea. The Judge declined to suspend the sentence. The Judge found that the breach was not trivial and that there were no proper grounds to exercise her discretion pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) to excuse the breach of the bond. The Judge also found that there were no special circumstances calling for an exercise of the discretion conferred by s 58(4) of the Sentencing Act to reduce the term of the sentence. The sentence imposed for the offence of drive disqualified was ordered to be served cumulatively upon the period of 11 months, the suspension of which had been revoked. Consequently the applicant was sentenced to a total period of 15 months and two weeks imprisonment with a non-parole period of nine months.

5. The applicant contends that the Judge erred in refusing to suspend the sentence of imprisonment.  His counsel rightly accepted that there was no patent error but contended that the failure to suspend the sentence was manifestly unreasonable.  Counsel relied on the applicant’s progress in managing his drug and alcohol abuse and his good behaviour, other than the commission of this offence, since his release from prison in 2010.  On the other hand the applicant has several prior convictions for the offence of driving whilst disqualified in the period of ten years preceding the commission of this offence.  The applicant’s maximum penalty is therefore two years imprisonment.  Moreover, on 30 November 2005 the applicant was sentenced to terms of 14 days imprisonment and two months imprisonment for two offences of driving whilst disqualified.  In those circumstances it is not arguable that the Judge’s decision not to suspend the sentence of imprisonment, for what was a flagrant disregard of the Court ordered disqualification of his licence, is manifestly unreasonable.  The term of imprisonment imposed is also undoubtedly reasonable having regard to the failure of the earlier sentence of two months to deter offending of this kind.

6. The applicant also contended that the disproportion between the gravity of the drive disqualified offence and the resulting revocation of the suspension justified an exercise of the discretion to excuse the breach pursuant to s 58(3) of the Sentencing Act. A marked disproportion between the seriousness of the breaching offence and the sentence which would be activated can constitute proper grounds for excusing a breach. So to can a substantial difference between the character of the offence for which the suspended sentence was imposed and the breaching offence. However, the sentence passed for the offence of driving whilst disqualified which, as we have found, was properly imposed, is in itself a substantial proportion of the sentence which was suspended. Even though the offence of driving whilst disqualified is of a different kind to drug trafficking, it shows a troubling disregard for the orders of the court. That concern is reinforced by the revelation in the pre-sentence report provided to the sentencing Judge that the defendant’s reporting compliance throughout the period of the bond was “exceptionally poor”. It is not arguable that there is any disproportion in this case.

7. Nor is it arguable that there was reason to reduce the term of the suspended sentence.  There is no indication that the applicant progressed his rehabilitation to any significant extent after he was placed on the bond.  The applicant did not have any immediate prospects of employment.  There was no other reason to think that serving the full sentence would in some way operate more harshly on the applicant than could have been anticipated at the time it was imposed.

8. For the reasons given above the Court refused the application for permission to appeal.