TAZROO v POLICE
[2005] SASC 126
•6 April 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Leave to Appeal in Private)
TAZROO v POLICE
Judgment of The Full Court (ex tempore)
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Layton)
6 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal in private - application refused.
Criminal Law Consolidation Act 1935 s 131(4), s 169(1); Correctional Services Act 1982 s 75, referred to.
TAZROO v POLICE
[2005] SASC 126
DUGGAN, BESANKO AND LAYTON JJ. The applicant pleaded guilty in the Adelaide Magistrates Court to a count of non-aggravated serious criminal trespass in a non-residential building and a count of theft contrary to ss 169(1) and 131(4) respectively of the Criminal Law Consolidation Act 1935.
The two offences were part of the same incident. On 10 June 2004 the applicant broke and entered the building occupied by Multicultural South Australia in Flinders Street. A security officer arrived at the premises while the applicant was in the building. Two laptop computers and a data projector had been removed from their original positions. A cash tin had been jemmied open. The applicant had $140 in cash in his possession. The money had been taken from the cash tin.
The applicant was on parole at the time of the commission of these offences. The unexpired period of parole was one year, four months and 25 days. The magistrate imposed a global penalty for the two offences of imprisonment for 13 months. He directed that this sentence be served cumulatively upon the unexpired portion of the parole period. Accordingly, the applicant was required to serve a total head sentence of two years, five months and 25 days. A non-parole period of 18 months imprisonment was imposed.
When passing sentence the magistrate said that if it were not for the plea of guilty and the time spent in custody he would have imposed a sentence of imprisonment for 24 months. He reduced the sentence by six months on account of the plea of guilty and a further five months because of the time spent in custody.
An appeal against the sentence imposed in the Magistrates Court was dismissed by Sulan J. Sulan J also refused an application for leave to appeal to the Full Court. The applicant now applies for leave to appeal to the Full Court in accordance with the procedure set out in r 94.03.
The applicant is unrepresented. The grounds of appeal are set out in his affidavit dated 3 March 2005.
The applicant complains that the non-parole period should have commenced from the date on which he pleaded guilty, namely, 13 October 2004. The magistrate was required to sentence as he did because of s 75 of the Correctional Services Act 1982 which provides that the unexpired balance of the parole comes into effect at the time of sentencing. In those circumstances it was appropriate to give effect to the time spent in custody by deducting that period from the sentence he imposed for the current offences. The magistrate’s approach in this respect was appropriate.
The grounds of appeal complain that the sentence was manifestly excessive. The starting point was imprisonment for 24 months. We agree with Sulan J’s view that the sentence was not manifestly excessive. There was very little room for leniency. The applicant has 32 convictions for offences of theft and similar offences. There are 14 previous convictions for offences of serious criminal trespass or its equivalent. As we have pointed out, the applicant was on parole at the time of the offences. He had been released from custody three days before the offences for the offence of theft.
There is no substance in the other grounds of appeal.
The cases of R v Delphin (2001) 79 SASR 429 and R v Smith (2002) 224 LSJS 143 referred to by the judge in his reasons for dismissing the appeal were relevant authorities in determining the appropriate sentencing range.
Sulan J’s analysis of the principles relating to the giving of credit where the imprisonment will give rise to undue hardship was correct. A reduction on this ground was not appropriate in the present case.
The issue raised by the applicant concerning his cultural background and the time which he spent in a boarding institution in India does not justify a reduction in sentence.
The reduction allowed for the plea of guilty was appropriate.
There was no basis for suspending the sentence of imprisonment.
In our view none of the grounds of appeal advanced by the applicant are arguable.
Leave to appeal to the Full Court is refused.
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