R v TARNOWSKI

[2004] SASC 291

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Leave to Appeal in Private)

R v TARNOWSKI

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)

20 September 2004

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

Application for leave to appeal against sentence - appellant pleaded guilty to one charge of aggravated serious criminal trespass and one count of armed robbery - appellant sentenced to 8 years with a non-parole period of five years six months - whether sentence manifestly excessive - leave to appeal refused.

Supreme Court Criminal Appeal Rules 1996 r 15(8)(b), referred to.

R v TARNOWSKI
[2004] SASC 291

Court of Criminal Appeal:  Leave to Appeal in Private

1. DOYLE CJ, DUGGAN AND GRAY JJ:  This is an application for leave to appeal against a sentence imposed by a Judge of the District Court.

2. Leave to appeal was refused by a Judge of this Court.  The applicant has requested that the application be considered and determined by the Full Court.

3. The applicant did not ask the Full Court to exercise its power under r 15(8)(b) of the Supreme Court Criminal Appeal Rules 1996 to order that the application be listed for oral argument.  Accordingly, the application has been considered by the Court on the material available to the Court.

4. For that purpose, the Court has considered, in particular, the Judge’s reasons for sentence, the notice of application for leave to appeal, and the reasons of the single Judge.  The Court has also had access to all of the material relevant to the sentencing of the applicant.

5. For the purpose of considering the application the Court was constituted by Doyle CJ, Duggan J and Gray J.

6. The Court is unanimously of the opinion that leave to appeal should be refused.

7. The applicant pleaded guilty to one charge of aggravated serious criminal trespass in a place of residence and one count of armed robbery.  The maximum penalty for each of these offences is life imprisonment.  The victims of the offences were the occupiers of a house, a man and a woman respectively aged 81 years and 82 years.  The applicant gained entry to the house under a pretence.  He then produced a knife and threatened the male victim.  A struggle then ensued, during which a second man entered the house.  The applicant and the other man were each armed with a knife.  Each of the victims was tied up, and the male victim had a pillowcase placed over his head.  The applicant and the other man then ransacked the house, collecting items of property to a value of about $20,000.00.  After some time the male victim managed to get his hands free, and this led to the applicant and the other offender running from the scene.

8. About two days later the applicant surrendered to the police.  On the information available, it appears likely that he would have been located in due course.  In particular, in circumstances that need not be detailed, one of the victims had obtained a photograph of the applicant.

9. When he surrendered to the police the applicant admitted being involved in the offence, but claimed that he was acting under duress from his co-offender.  Ultimately he abandoned that claim, and entered a plea of guilty, but only shortly before the matter was listed for trial.

10. The applicant is a 31-year-old single man.  He has a significant number of prior convictions, but none of them are for offences as serious as these, and some of them are driving offences only.

11. The applicant expressed remorse and shame for what he had done.  However, the Judge was satisfied that the applicant knew his co-offender, but was declining to identify him to the police.

12. Not surprisingly, the Judge regarded the offences as very serious.  We agree.  The circumstances of the armed robbery would have been terrifying for the victims.  The use of knives is a circumstance of aggravation.  The offence is one of a kind about which there is considerable community concern.

13. It was open to the Judge to make the findings of fact that she made.

14. It was also open to the Judge to conclude that the applicant’s prospects of rehabilitation were not particularly good.  The applicant’s claim for credit on the basis that he was willing to help the police identify his co-offender was rightly rejected by the Judge, having regard to her finding that he knew who that person was but was declining to tell the police.  The fact that the co-offender may have injured the applicant, and threatened further injury if he disclosed his identity, does not alter the fact that no credit was to be given for assisting the police.

15. In short, there was virtually nothing by way of mitigation in the circumstances of the case.

16. The Judge fixed a head sentence of eight years.  But for the plea of guilty it would have been nine years.  She fixed a non-parole period of five years, six months.

17. In our opinion the head sentence and the non-parole period are well within the range for such serious offences.  This is so even though there is a substantial degree of overlap between the two offences, and were they to be punished separately it would be appropriate to provide for some concurrence as between the sentences.

18. In our view the complaint that the sentence is manifestly excessive has no reasonable prospect of success, and for that reason we refuse leave to appeal.