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which was ordered to be served cumulatively on the period of 11 months imprisonment, the suspension of which had been revoked.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

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…

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 KINVIG

Details

AGLC: R v Kinvig [2013] SASCFC 132
Case: [2013] SASCFC 132
Decision Date: 9 December 2013

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Gray and Peek JJ, considered an appeal against a sentence imposed on the respondent, Kinvig. The dispute arose from Kinvig's breach of the conditions of a suspended sentence of imprisonment, which had been imposed for the offence of driving while disqualified.

The central legal issue before the Court was whether the sentencing judge had erred in imposing a further period of imprisonment upon Kinvig's breach of the suspended sentence. Specifically, the Court had to determine the appropriate approach to sentencing when a person commits a further offence or breaches the conditions of a suspended sentence, and whether the original suspended sentence should be activated or a new sentence imposed.

The Court reasoned that when a person breaches the conditions of a suspended sentence, the sentencing judge has a discretion to either activate the original suspended sentence or impose a new sentence for the breach. In this instance, the Court found that the sentencing judge had failed to properly consider the available sentencing options and had not adequately explained the basis for activating the original suspended sentence. The Court emphasised that the purpose of a suspended sentence is to provide an opportunity for rehabilitation, and that the decision to activate it should reflect a failure to take that opportunity. The Court applied the principles of sentencing, considering the gravity of the original offence, the nature of the breach, and the offender's prospects of rehabilitation.

The Court allowed the appeal, quashed the sentence imposed by the sentencing judge, and remitted the matter back to the District Court for re-sentencing.

Orders