Taylor v Chokljat
[2006] TASSC 51
•26 June 2006
[2006] TASSC 51
CITATION: Taylor v Chokljat [2006] TASSC 51
PARTIES: TAYLOR, Andrew Keith
v
CHOKLJAT, Katrina
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 30/2006
DELIVERED ON: 27 June 2006
DELIVERED AT: Hobart
HEARING DATE: 26 June 2006
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Factual basis for sentence – Error not to obtain full record of prior convictions.
Aust Dig Criminal Law [820]
REPRESENTATION:
Counsel:
Applicant: Applicant in person
Respondent: D Robertson
Solicitors:
Applicant: Applicant in person
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 51
Number of paragraphs: 13
Serial No 51/2006
File No LCA 30/2006
ANDREW KEITH TAYLOR v KATRINA CHOKLJAT
REASONS FOR JUDGMENT EVANS J
27 June 2006
The applicant pleaded guilty to one charge of burglary before Magistrate P H Wilson and was sentenced to 12 months' imprisonment. He has filed a notice to review appealing against that sentence.
At about 7.30pm on 12 April 2006, the applicant attempted to force his way into a garden centre by breaking a window in a door to a coffee shop at the centre. As the applicant reached through the door, he activated a security alarm. He was unable to open the door as it was deadlocked. He was promptly arrested and charged with burglary.
On the following morning, 13 April 2006, the applicant appeared before the learned magistrate and pleaded guilty to the charge of burglary. The prosecutor informed the learned magistrate that the garden centre was about 500 metres from accommodation where the applicant had been staying and that when apprehended the applicant had in his possession a shopping bag and screwdriver. The prosecutor handed the learned magistrate a document headed "Police Reference System – Offence Summary". That document is a computer printout of information referable to the applicant from VICPOL, which I take to be a reference to Victoria police. The document records the applicant's date of birth as 19 February 1969 and details information under the following column headings: "Date of Offence"; "Offence Description"; "Process Status"; "Process Date".
The information under the heading Offence Description is no more than the particular charge, for example, "Theft". The various entries under the heading Process Status are "Approved, Awaiting Approval, Guilty, Not Guilty or Not Proceeded". The former two entries are not explained in the document and their meaning was not canvassed before the learned magistrate. I assume they relate to pending, but unresolved, prosecutions. The document contains no details whatsoever of the penalty, if any, imposed for any conviction.
When handing the document to the learned magistrate, the prosecutor observed that it was admitted, and the applicant does not dispute, the making of that admission.
From the document it seems that the applicant has about 30 convictions for offences involving dishonesty since 1984, the most recent conviction being for possessing property being the proceeds of crime on 30 August 2001. His offences of dishonesty include convictions for theft, theft of a motor vehicle, burglary, theft by deception, unlawful possession, and obtaining property by deception.
The applicant was unrepresented before the learned magistrate. In mitigation, he said that his offence was silly and resulted from his excessive consumption of alcohol the previous night.
The learned magistrate observed that the applicant had quite a record of offending in a dishonest way over at least 20 years and his offending had continued unabated. His Honour sentenced the applicant to 12 months' imprisonment with a minimum parole period of 8 months.
In her text Sentencing in Tasmania, 2nd ed (2002), Professor Warner deals with sentences imposed for a conviction of one count of burglary between 1983 and 2000 at pars 12.308 and 12.309. During that period, the median sentence imposed for such a conviction was 4 months' imprisonment and the maximum, one only, sentence was 12 months' imprisonment. This shows that the penalty imposed by the learned magistrate was at the upper end of the sentencing range for one conviction of burglary.
On the information before the learned magistrate, the applicant's last offence involving dishonesty was committed on 30 August 2001. The offence for which the applicant was being sentenced was committed when he was intoxicated, it did not involve sophisticated criminal conduct and his criminal objective, theft, had not been achieved. The applicant was sentenced on the day following the offence and was entitled to the full mitigatory effect of an early plea of guilty. Notwithstanding these matters, it is conceivable that a sentence of 12 months' imprisonment was appropriate due to the applicant's criminal history. It is trite that a sentence must be in proportion to the gravity of the offence and that to impose a disproportionate penalty by reason of antecedent criminal conduct involves the infliction of a fresh penalty for past offences: Veen v R (1979) 143 CLR 458; Cook v Dillon B1/1985; Veen v R (No 2) (1988) 164 CLR 465 at 477; Hoare v R (1989) 167 CLR 348 at 354; and Hill v R [1999] TASSC 29 [4]. Nevertheless, subject to the constraints imposed by the principle of proportionality, sentences significantly higher than the usual range or tariff may be justified in cases where the offender has acquired the status of a recidivist or professional criminal: R v Midson 26/1998 and R v Bernes 27/1998.
The only explanation for the learned magistrate's imposition of a penalty at the upper end of the range was the significance he placed on the applicant's criminal history. However, the computer printout handed to the learned magistrate provided no information on the penalties imposed in respect of any of the applicant's prior convictions and accordingly provided no information on the gravity of his offences. This information was readily available from a standard form record of the applicant's prior convictions. When an offender has convictions, such a record is invariably provided to the Court. I assume it had not been provided to the learned magistrate in this instance as the sentencing occurred on the day following the offence and it takes some days to obtain a record of an offender's convictions from another jurisdiction.
In view of the importance of the applicant's history of offending to the determination of the penalty imposed, I have no hesitation in concluding that the learned magistrate erred in proceeding to sentence the applicant without first obtaining a record of his prior convictions that included details of the penalties that had been imposed on him. In the absence of that record, the learned magistrate was in no position to assess the gravity of the applicant's history of offending.
The appeal is allowed. The sentence imposed on the applicant is quashed.
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