Police v Morzanj

[2005] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v MORZANJ

Judgment of The Honourable Justice Vanstone

20 July 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER

Appeal against sentence - respondent convicted of several offences - respondent already serving a term of imprisonment - Magistrate imposed further, cumulative term of imprisonment but declined to extend non-parole period - whether the Magistrate was required by law to extend the non-parole period - appeal allowed and non-parole period extended.

Criminal Law (Sentencing) Act 1988 s 32, referred to.
R v Shepperbottom (2001) 212 LSJS 486, discussed.

POLICE v MORZANJ
[2005] SASC 263

Magistrates Appeal

1. VANSTONE J:     This is an appeal by the police against a sentence imposed by a Magistrate for four counts of serious criminal trespass in a place of residence with four associated offences of theft, three counts of driving whilst disqualified, two counts of breaching bail conditions, property damage, and providing a false name and address.  The respondent pleaded guilty to each offence. 

2. At the time when he appeared for sentence, the respondent was already serving a custodial sentence for dishonesty offences and escaping from custody.  The total of that sentence was four years, 15 days imprisonment with a non-parole period of two years and five months.  That had been imposed in the District Court on 20 August 2004.

3. In respect of all the offences to which the respondent pleaded guilty, the Magistrate imposed one sentence of 30 months.  He ordered that it be served cumulatively upon the respondent’s current sentence.  The Magistrate declined to extend the non-parole period.  I shall deal shortly with the reasons which persuaded the Magistrate to take that course.  But it is in respect of that decision that the appellant brings this appeal.

4. Section 32(1) of the Criminal Law (Sentencing) Act1988 is directed to the situation with which the Magistrate was faced.  It relevantly provides as follows:

   (1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must ––

   (a)      if the person is not subject to an existing non-parole period –– fix a non-parole period; or

   (b)      if the person is subject to an existing non-parole period –– review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or

   …..

5. In R v Shepperbottom (2001) 212 LSJS 486 the Court of Criminal Appeal held that in reviewing a non-parole period and extending it by such period as a court might think fit, the court was not entitled to decline to extend the period. To decline to extend a non-parole period in these circumstances was held to be an error of law. Unfortunately the decision in Shepperbottom was not drawn to the attention of the Magistrate.  It follows from that decision that the sentence he imposed was not one authorised by law.  That, in my view, is a sufficient reason to intervene to sentence afresh, notwithstanding that this is a prosecution appeal. 

6. Since no complaint is made about the head sentence imposed by the Magistrate, I propose to impose the same term.  It falls to me to ‘review and extend’ the non-parole period.

7. The circumstances which persuaded the Magistrate not to increase the respondent’s non-parole period were, in summary terms, these.  The respondent came to Australia with his parents and brother in 1991 when he was 13 years of age.  He is now 27 years old.  The family fled Croatia.  After several years their applications for permanent residency were granted.  In 1998 his parents and brother became Australian citizens.  The respondent was not able to take up citizenship as by that time he had been convicted of criminal offences and was then in prison.  The events which apparently led to the respondent becoming addicted to drugs and committing criminal offences included an unprovoked attack upon him with weapons, leaving him with serious injuries.  It appears that until that time his progress in high school and socially was very good.  In any event, his history since that attack has been marked by disappointment, some personal tragedy and degeneration.  It was put to the Magistrate that a decision has been made within the Department of Immigration to cancel the respondent’s visa, and that upon his release from prison he will be deported.  Apparently his family have determined that they will accompany him back to Croatia.  Plainly these matters motivated the Magistrate to attempt to ensure that the respondent’s departure and the resettlement of the family in Croatia were not delayed any longer than was necessary. 

8. Under ordinary circumstances, and having regard to the respondent’s quite serious history of offending, the extension of the non-parole period might have been expected to be at least 50 percent of the new sentence.  Having regard to the matters I have mentioned and the Magistrate’s acceptance of them, and further, bearing in mind that this is a prosecution appeal and questions of double jeopardy arise, I think it is appropriate to extend the non-parole period by only a fairly nominal amount, namely, six months.

9. Accordingly, I grant leave to appeal, allow the appeal, set aside the sentence imposed by the Magistrate, substitute a head sentence of 30 months imprisonment, to be served cumulatively upon the existing sentence, and extend the existing non-parole period by six months.