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

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.
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.
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.
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
…..
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…

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 Police v Morzanj

Details

AGLC: Police v Morzanj [2005] SASC 263
Case: [2005] SASC 263
Decision Date: 20 July 2005

CaseChat Overview and Summary

In the case of Police v Morzanj, the respondent, already serving a term of imprisonment, was convicted of several offences. The Magistrate imposed a further, cumulative term of imprisonment on the respondent but declined to extend the non-parole period. The Attorney-General, as the party appealing the sentence, contested the Magistrate's decision not to extend the non-parole period. The central issue before the court was whether the Magistrate was legally required to extend the non-parole period when imposing a cumulative term of imprisonment on a respondent already serving a term of imprisonment.

The court examined the relevant statutory provisions and case law concerning the imposition of cumulative sentences and the extension of non-parole periods. It was established that when a cumulative sentence is imposed, the non-parole period must also be extended to reflect the total punishment being served. The court found that the Magistrate had failed to extend the non-parole period, which was a legal requirement. Consequently, the appeal was allowed, and the non-parole period was extended to accurately reflect the cumulative sentence imposed.

The court's decision underscores the importance of adhering to statutory requirements when imposing and extending non-parole periods in criminal cases. By allowing the appeal and extending the non-parole period, the court ensured that the sentence imposed on the respondent was in line with the law. The final orders of the court included an extension of the non-parole period for the respondent's cumulative sentence.

Orders