R v Nagy - [2007] SASC 221

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NAGY
[2007] SASC 221
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Sulan and The Honourable Justice David)
21 June 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - DELAY BETWEEN OFFENCE AND SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appeal against sentence – appellant previously sentenced to four years imprisonment with non-parole period of three years suspended upon the appellant entering a bond to be of good behaviour for three years – later plea of guilty to driving offences committed during period of bond – application for enforcement of the bond – suspension revoked, but term of imprisonment reduced to two and a half years with a non-parole period of 15 months – s 58(4) of the Criminal Law (Sentencing) Act 1988 – appellant of advanced age and ill health – significant delay between breaching offences and revocation of suspension – appropriate time for making application – whether the reduction of sentence was inadequate – consideration of effect of age and ill health – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 19A(1), s 19A(3); Road Traffic Act 1961 (SA) s 38, s 45; Motor Vehicle Act 1959 (SA) s 91; Australian Road Rules (SA) reg 287; Criminal Law (Sentencing) Act 1988 (SA) s 58(3), s 58(4); Magistrates Act 1983 (SA) s 23, referred to.
R v Suckling (1983) 33 SASR 133; Kernich v DPP (Cth) (1997) 68 SASR 454; R v Smith (1987) 44 SASR 587; R v Kovac (2006) 166 A Crim R 358, applied.
R v Penno (2004) 236 LSJS 457, distinguished.

R v NAGY
[2007] SASC 221
Court of Criminal Appeal: Bleby, Sulan and David JJ

THE COURT: This is an appeal against a sentence imposed upon the appellant for breaching a bond which he had entered as a condition of a suspended term of imprisonment.
The sentencing Judge who dealt with the breach of bond refused to excuse the breach. However, the original sentence was reduced. The appellant now argues that the amount of the reduction was inadequate. It is conceded that the sentencing Judge did not err in refusing to excuse the breach.
Chronology of Events
The appellant was the driver of a Ford motor vehicle which was involved in an accident with a Holden motor vehicle on 22 February 1998. As a result of this accident, two passengers in the Holden motor vehicle died and the driver was injured. The appellant was charged with two counts of causing death by dangerous driving pursuant to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of causing bodily harm by dangerous driving pursuant to s 19A(3) of the Criminal Law Consolidation Act. The matter…

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 Nagy

Details

AGLC: R v Nagy [2007] SASC 221
Case: [2007] SASC 221
Decision Date: 21 June 2007

CaseChat Overview and Summary

The matter of R v Nagy involved the appellant, who had been previously sentenced to a term of imprisonment with a non-parole period suspended upon entering a bond to be of good behaviour. This bond was later breached when the appellant pleaded guilty to driving offences committed during the bond period. The case reached the court following an application for enforcement of the bond, which led to the suspension being revoked and the appellant's sentence being reduced. The appellant, who was of advanced age and ill health, argued that the reduction in sentence was inadequate, given the significant delay between the breaching offences and the revocation of the suspension.

The primary legal issue before the court was whether the reduction in the appellant's sentence was appropriate, considering the delay between the offences and the revocation of the suspension. The court also had to consider the appellant's advanced age and ill health in determining the appropriate sentence. The relevant statutory provision, s 58(4) of the Criminal Law (Sentencing) Act 1988, required the court to weigh these factors when deciding the sentence.

The court found that the sentencing judge had appropriately taken into account all relevant factors, including the appellant's age and health, as well as the delay between the breaching offences and the revocation of the bond. The reduction in the sentence from four years to two and a half years, and in the non-parole period from two and a half years to 15 months, was deemed substantial. The court concluded that the sentencing judge had exercised mercy by significantly reducing both the head sentence and the non-parole period. The court found no error in the application of s 58 of the Act and dismissed the appeal.

No further orders were made beyond dismissing the appeal. The court's decision upheld the sentencing judge's approach, finding that the sentence reduction was adequate in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Judge clearly took into account everything that was put in favour of the appellant. The reduction in sentence from four years to two and a half years and in the non-parole period from two and a half years to 15 months was substantial.Conclusion The sentencing judge took a merciful approach in substantially reducing both the head sentence and the non‑parole period. No error in the application of s 58 of the Act has been identified. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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