Legal Research
Cases
Stanitzki v Higgins

Stanitzki v Higgins

Case [1994] SASC 4600 10 June 1994

No judgment structure available for this case.

Type to search within this case.

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON, J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - suspended sentences - revocation of - appeal against revocation of the suspension of a sentence of imprisonment - sentence suspended six years previously when appellant entered a good behaviour bond, a term of which was to perform community service - appellant breached bond by not performing the community service, having left the State immediately thereafter to take up employment in the Northern Territory and to start a new life away from the drug scene - since that time appellant rehabilitated himself - observations as to proper grounds for declining to revoke the suspension of a sentence where failure to observe terms of the bond - observations as to the effect of the staleness of the breach and the effect of probationer rehabilitating himself - while appellant had misled the court, given that the court could have accommodated the appellant's need to leave the State, his immaturity at the time and his subsequent rehabilitation, proper grounds existed to excuse the breach - appeal allowed, suspension to continue upon appellant entering into new bond. Criminal Law (Sentencing) Act, 1988 s58. R v Buckman (1988) 47 SASR 303; Lawrie v The Queen (1992) 59 SASR 400; R v Marston (1993) 60 SASR 320; R v Todd (1982) 2 NSWLR 517; Dibble v The Queen (Court of Criminal Appeal, 2 November 1990, unreported) and Norman v Lovegrove
(1986) 40 SASR 266, applied.

HRNG ADELAIDE, 18 May 1994 #DATE 10:6:1994

Counsel for appellant: Mr O R G Koehn

Solicitors for appellant: Oliver Rudolf Gerhard Koehn

Counsel for respondent: Ms J M Rugless

Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against the revocation, by a stipendiary magistrate, of the suspension of a sentence of imprisonment for four months, which was imposed upon the appellant on 18 August 1987 consequent upon his conviction, at that time, of an offence of attempted larceny. The suspension was conditional on the entry by the appellant into a bond, in the sum of $50, to be of good behaviour for a period of 12 months, a term of which was that he was to perform 150 hours of community service.

2. It was made to appear to the learned magistrate that, when the appellant pleaded guilty to the offence charged against him, he did not anticipate other than a fine. The actual imposition of a custodial sentence, to be suspended on entry into a bond requiring community service, took him by surprise and placed him in a considerable dilemma.

3. Having been out of work for the previous six months and also embroiled in the drug scene, he had already made arrangements to take up employment at Katherine in the Northern Territory, leaving Adelaide on the day of his Court appearance. His motive in so doing was to make a break from…

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 Stanitzki v Higgins

Details

AGLC: Stanitzki v Higgins [1994] SASC 4600
Case: [1994] SASC 4600
Decision Date: 10 June 1994

CaseChat Overview and Summary

The Supreme Court of South Australia considered an appeal by Stanitzki against the revocation of the suspension of a sentence of imprisonment for four months, which was imposed after his conviction for attempted larceny. The suspension was conditional upon Stanitzki entering a bond, which required him to perform 150 hours of community service. The appeal was against the revocation of this suspension by a stipendiary magistrate. The legal issue in the case was whether the court should decline to revoke the suspension of the sentence due to proper grounds existing to excuse the breach of the bond. The court considered whether the appellant's conduct warranted stern censure, or whether there were mitigating factors that could justify declining to revoke the suspension.

The court held that the appeal should be allowed and the suspension of the custodial sentence should continue upon the entry by the appellant into a further bond. The court found that the appellant had misled the court and breached the terms of the bond by not performing the community service. However, the court considered the mitigating circumstances, including the appellant's immaturity at the time, his subsequent rehabilitation, and the fact that the breach was now stale. The court found that the appellant's rehabilitation and the passage of time were compelling factors that warranted the exercise of the discretion conferred by the relevant statute. The court found that the revocation of the suspension was inconsistent with a sense of proportionality and justice. Therefore, the court set aside the orders complained of and directed that the suspension of the custodial sentence continue upon the entry by the appellant into a further bond, with the condition that the appellant perform the 150 hours of community service within that period.

Orders