Corbett v Police

[2006] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CORBETT v POLICE

[2006] SASC 170

Judgment of The Honourable Chief Justice Doyle

14 June 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence - appellant convicted of eight offences - five counts of serious criminal trespass in a non-residential building contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) - three counts of larceny contrary to s 131 of the Criminal Law Consolidation Act 1935 (SA) (now repealed) - sentence of four years with a non-parole period of two years imposed by Magistrates Court - whether the non-parole period should be reduced to take account of a short time spent in custody - the appellant committed the offences in company with other men - together they distracted the staff of a number of hotels in Adelaide before taking monies from the hotels - no error made out - appeal dismissed.

Rafferty v Police [2006] SASC 169, considered.

CORBETT v POLICE
[2006] SASC 170

Magistrates Appeal:  Criminal

1. DOYLE CJ:          This is an appeal against a sentence imposed by the Magistrates Court.

2. These reasons are to be read with my reasons in Rafferty v Police [2006] SASC 169.

3. This appeal and the appeal by Mr Rafferty should have been heard at the same time.  I was not aware of Mr Corbett’s appeal when I heard Mr Rafferty’s appeal.  I arranged for Mr Corbett’s appeal to be heard by me when I became aware of it.

4. Mr Corbett is one of the five men convicted of the offences for which Mr Rafferty was convicted.  He was sentenced at the same time as Mr Rafferty.  I will not repeat my summary of the circumstances of the offences, which appears in my reasons in Rafferty v Police.

5. The Magistrate imposed on Mr Corbett a single sentence of imprisonment for four years.  She took the view, and rightly so, that there was no basis for her to distinguish as between individual offenders.  She took the view that the difference in their records did not warrant any differentiation in relation to the head sentence.  In that the Magistrate was correct.  First of all, as I have remarked in relation to Mr Rafferty, the head sentence was very lenient, and indeed inappropriately lenient.  Second, and particularly in light of the corrections to Mr Rafferty’s record, it was open to the Magistrate to take the view that their respective records did not warrant any differentiation in the head sentence.

6. The Magistrate fixed a non-parole period of two years in relation to Mr Corbett.  He was about 29 years of age when sentenced.  He had committed offences involving dishonesty in 1994, in about 1996 and in 2001.  The offences for which the Magistrate sentenced him were a breach of a bond imposed in November 2001 in respect of the offence committed in October 2001.

7. In sentencing him the Magistrate said that Mr Corbett had shown a change of attitude since about 1996, which was about when he began his relationship with his wife.  The Magistrate took account of written references provided in relation to Mr Corbett, which she said referred to him as “an extremely loving father and a very good family man”.  She noted that he had been involved in work with under-privileged children.  She regarded him as a good candidate for rehabilitation.

8. The appeal against the head sentence was abandoned by Mr White.  That is understandable, having regard to the leniency of the head sentence.  The only complaint that Mr White made about the non-parole period is that the Judge should have reduced it to take account of a period of about two or three weeks that Mr Corbett had spent in custody.  When the Judge sentenced him she was under the impression that he had spent about two months in custody, but took the view that it was not appropriate to reduce the sentence on that account.

9. The Magistrate was correct.  First of all, the non-parole period is a moderate one.  It is only one half of the head sentence.  Second, it is arguably less than it should be, being fixed in relation to a lenient head sentence.  Third, there is no reason at all why the Magistrate should have taken the view that it should be reduced for the time spent in custody, particularly now that it appears that that was as short a time as it was.

10. For those reasons I dismiss the appeal against sentence.