TAZROO v Police - [2005] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAZROO v POLICE
Judgment of The Honourable Justice Sulan
20 January 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - POWER TO BRING APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appellant pleaded guilty to one count of non-aggravated serious criminal trespass in a non-residential building and one count of theft pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 - sentenced to thirteen months imprisonment - appellant sought an extension of time in which to appeal - appellant unrepresented - respondent did not oppose application - whether appellant's explanation for failure to comply with rule 96C.02 of the Supreme Court Rules is reasonable - application granted - whether magistrate failed to give sufficient weight to the psychologists' reports - whether magistrate failed to give adequate consideration to the fact that the appellant will be required to serve his sentence in protective custody - whether the magistrate failed to give adequate weight to his cultural background and his desire to rehabilitate himself - whether the sentence was manifestly excessive - whether the magistrate erred in refusing to suspend the sentence of imprisonment - appeal dismissed.
Criminal Law Consolidation Act 1935, s 134(1), s 169(1); Criminal Law (Sentencing) Act 1998, s 10, s 11, s 18A; Magistrates Court Act 1991, s 42; Supreme Court Rules, 3.04(d), 96C.02, referred to.
Bekink v R (1999) 107 A Crim R 415; Police v Warren [2002] SASC 285; R v Delphin (2001) 79 SASR 429; R v Golding & Golding (1980) 24 SASR 161; R v Hans De Vroome (1988) 38 A Crim R 146; R v Smith (2002) 224 LSJS 134; R v Liddy (No 2) (2002) 84 SASR 231; R v Reci (1998) 198 LSJS 373, considered.

TAZROO v POLICE
[2005] SASC 14
Magistrates Appeal

SULAN J On 13 October 2004, the appellant pleaded guilty in the Adelaide Magistrates Court to one count of non-aggravated serious criminal trespass in a non-residential building, contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). He also pleaded guilty to one count of theft, contrary to s 134(1) of the Act. The maximum penalty for each offence is ten years imprisonment. On 5 November 2004, he was convicted and sentenced for the offences.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the magistrate imposed one penalty of thirteen months imprisonment. At the time that the appellant was sentenced, he was on parole. The unexpired period of his parole was one year, four months and twenty five days. Pursuant to s 75 of the Correctional Services Act 1982, the magistrate ordered that the sentence of thirteen months be served cumulatively upon the unexpired period of parole that the appellant was required to serve. As a consequence, the appellant was liable to serve a total head sentence of two years, five months and twenty five days imprisonment. The magistrate imposed a non-parole period of eighteen months imprisonment.
The appellant filed a notice of appeal on 30 November 2004. He sought an extension of time in which to appeal. The ground of appeal is that the sentence is manifestly excessive. The appellant seeks orders that the sentence be reviewed, and any sentence of imprisonment imposed be suspended.
Extension of time
Rule 96C.02 of the Supreme Court Rules (“the Rules”) provides that an appeal pursuant to s 42 of the Magistrates Court Act 1991 must be instituted within fourteen days of the judgment appealed against. Pursuant to rule 3.04(d) of the Rules, the court has power to extend the time for appeal. The appellant seeks an extension of time. The power to extend time is discretionary. If an appellant is able to explain the failure to observe the time limit, and when there is a very short delay and there is no obvious prejudice to any party, an extension of time will usually be granted.
The appellant is unrepresented. He explained that he had lodged the notice of appeal within time, but it had been rejected and returned to him because he had not obtained a waiver of fees. He informed the court that by the time he had arranged for the fees to be waived and complied with all necessary formal requirements, the time for instituting the appeal had passed. He said that he had been diligent in instituting the appeal but, due to his situation, the time for lodgement had expired. Mr Keane, for the respondent, did not oppose the application. He did not challenge the appellant’s explanation.
In Police v Warren,[1] Gray J summarised the factors which guide a court in considering an application to extend time. If the delay is relatively short and an explanation is advanced, then ordinarily the court will grant an extension of time. In considering an application for extension of time, the court will consider the merits of the case. If the proceedings have no merit, then an extension of time will be refused.
[1][2000] SASC 285
I am satisfied that the appellant attempted to institute the appeal within time, but was unable to do so because he had not complied with the administrative requirements necessary to institute his appeal. The appellant is unrepresented. I accept that an unrepresented litigant may have difficulty in complying with formalities required to institute proceedings, and that the appellant’s explanation is reasonable. I am satisfied that an extension of time should be granted. I extend the time for filing the notice of appeal to 18 December 2004, the date upon which the notice of appeal was filed.
The facts
The charges to which the appellant pleaded guilty arose out of events which occurred on 10 May 2004 at the premises of Multicultural South Australia, 24 Flinders Street, Adelaide. In response to an alarm that had been activated, a security officer attended at the premises at about 10.30 p.m. The officer saw the appellant inside the premises. He called for assistance from the police who attended. They observed that two laptop computers and a data projector had been moved from their original positions in anticipation of them being removed from the premises. A cash tin had been jemmied open and money had been taken from it. The premises had been entered through a window which had been broken. The appellant was arrested. In his possession, he had $140 in cash, which were monies which had been taken from the cash tin.
Before the magistrate, the appellant stated to the court that he had entered the premises after he had observed the broken window. The prosecutor contested that submission. The appellant then agreed that he should be sentenced on the basis that he had broken the window in order to gain entry. Before me, he accepted that the magistrate was correct in sentencing him on that basis.
The offence took place three days after the appellant had been discharged, without penalty, for an offence of dishonestly taking property without the owner’s consent. The appellant had taken goods from a supermarket and failed to pay for them. He was apprehended nearby. He spent three days in custody before the court convicted him. He was discharged without further penalty. At the time of his arrest, the appellant was also on parole for similar offences.
The appellant has an extensive record dating back to 1994. Since 1994, he has thirty two convictions for theft, and fourteen convictions for offences of serious criminal trespass, or their equivalent. On two previous occasions he has received suspended sentences. On eight occasions, he has been convicted and discharged without penalty on counts of theft or serious criminal trespass, or their equivalent.
Submissions to the magistrate
The appellant submitted to the magistrate that he was determined to rehabilitate himself. He had been counselled by a psychologist with a view to avoiding further offending. He tendered a report from Mr Geoff Pope, a registered psychologist, who reported that the appellant had expressed a concern at the degree of his institutionalisation, and had expressed a wish to understand the reasons for his offending, in order to avoid further offending. Mr Pope suggested a more detailed psychological or psychiatric assessment as a first step to assist the appellant in his aim to lead a responsible lifestyle. He also tendered a report of a senior psychologist at the Adelaide Remand Centre, Ms Rene Meeuwissen, who reported that the appellant had sought her assistance to establish the reasons which had contributed to his repeated pattern of offending. She reported that she is currently putting together a program to assist the appellant to cope with a number of factors which contributed to his anti-social behaviour. He provided a report of Mr Ray Hendry, the Coordinating Chaplain of the Adelaide Remand Centre, who reported that the appellant had expressed a desire to cease offending. The appellant stated that he wanted an opportunity to demonstrate that he has changed his attitude.
In sentencing the appellant, the magistrate had regard to the provisions of ss 10 and 11 of the Criminal Law (Sentencing) Act 1988. The magistrate referred to the appellant’s submission seeking a suspended sentence. He had regard to the reports of the two psychologists, and to the report of Mr Hendry. The magistrate concluded that he had no confidence in the appellant’s submission that he would not re-offend again in the future. In so concluding, he had regard to the long history of offending and the fact that the appellant committed these offences whilst on parole. The magistrate declined to suspend the sentence.
The magistrate indicated that if it had not been for the appellant’s plea of guilty, he would have sentenced him to twenty four months imprisonment. He reduced the sentence by six months, having regard to the appellant’s plea of guilty, and by a further five months, having regard to the period spent by the appellant in custody. That resulted in a head sentence of thirteen months imprisonment, to be served at the expiration of the unexpired period of parole of one year, four months and twenty five days. He set a non-parole period of eighteen months. He refused to suspend the sentence.
The appeal
The appellant submits that the magistrate failed to give any or adequate consideration to his submissions. He submits that the magistrate failed to give sufficient weight to the psychological reports. He further complains that the magistrate failed to give adequate weight to the fact that he will be required to serve his sentence in protective custody. He further complains that the magistrate failed to give adequate weight to his cultural background, and to his desire to rehabilitate himself. The appellant contends that the sentence was manifestly excessive. He submits that the magistrate was in error in refusing to suspend the sentence of imprisonment.
Manifestly excessive
In R v Delphin,[2] the Court of Criminal Appeal considered the effect of the amendments to the Act creating the offences of serious criminal trespass and aggravated serious criminal trespass in residential premises. The Court observed that the maximum penalties for the equivalent offence of breaking and entering and larceny had been significantly increased. The Court stated that a single act of serious criminal trespass in a residential premise should attract penalties in the range of twenty to twenty four months for a first offender who pleads guilty. In R v Smith,[3] the appellant was nineteen years of age and had a minor record. The Crown accepted that his previous convictions were of no significance. He had pleaded guilty to the offences of aggravated serious criminal trespass in a non-residential building, and larceny. The circumstances of the aggravation were that he committed the offence in the company of others. On the night in question, he was intoxicated and, together with others, they broke into premises of a clothing retailer. The appellant was not the instigator. One of the other members of the group had smashed the glass entry doors to the premises, and the appellant had then joined in and entered the premises with the group. He was apprehended as he emerged carrying a quantity of clothing from the premises. The sentencing judge imposed a total head sentence of thirty four months, with a non-parole period of twenty two months. The sentence was suspended. The Court of Criminal Appeal reduced the sentence to twenty seven months, with a non-parole period of fourteen months, and suspended the sentence. Martin J, with whom Debelle and Williams JJ concurred, referred to the decision in Delphin’s case. He observed that if a single penalty was imposed for the offences of serious criminal trespass and larceny, it must reflect both offences. He was of the view that the sentencing judge had failed to give adequate weight to the personal circumstances of the appellant, in particular his youth and lack of significant prior offending.
[2] (2001) 79 SASR 429
[3] (2002) 224 LSJS 143
The sentence imposed in Smith’s case was significantly higher than that imposed on the appellant in this case. The appellant has a lengthy history of prior offending for offences of a similar nature. He has thirty two convictions for offences of theft and similar offences, and fourteen previous convictions for offences of serious criminal trespass or its equivalent. At the time that the appellant committed these offences, he was thirty five years of age. He was then on parole from a sentence of two years and fifteen days imprisonment, imposed on 12 September 2003, for offences of larceny. He had been released from custody three days before these offences occurred for the offence of theft, to which I have earlier referred.
The appellant submits that the magistrate failed to give sufficient weight to the appellant having to serve his sentence in protective custody. He informed me that it has been necessary for the prison authorities to isolate him from the general prison population because of personality differences he has experienced with other prisoners. There are circumstances when the courts will have regard to the hardship that a prisoner may suffer in serving his or her sentence. An offender’s medical condition, which may render imprisonment harsher, is relevant; see: R v De Vroome.[4] A prisoner who must be isolated because he has provided information to the authorities is in a special category and is entitled to some reduction of a sentence, due to the hardship he or she will endure during their term of imprisonment; see: R v Golding & Golding.[5] Some allowance can be made in circumstances when a prisoner will endure harsher conditions than normal if incarcerated. Each case will depend upon its circumstances, but generally the court will make an allowance if the harsher conditions arise from factors outside the prisoner’s control, such as, for example, his or her medical condition, or the administrative needs of the prison; see: Bekink v R.[6]
[4](1988) 38 A Crim R 146
[5](1980) 24 SASR 161
[6](1999) 107 A Crim R 415
In this case, the appellant has not demonstrated that he is entitled to any reduction based upon undue hardship. Ultimately, it is the responsibility of the correctional services authorities to ensure that prisoners are not subject to undue hardship in serving their sentences. The fact that a prisoner may have difficulty in relating to other prisoners and, therefore, some arrangements must be made for that prisoner to be kept separate from others is not, in itself, a basis to reduce what would be an appropriate sentence; see: R v Liddy (No 2).[7] In my view, there is no basis upon which the sentence in this case should be reduced, even accepting that the appellant may have difficulty in relating to other prisoners.
[7](2002) 84 SASR 231 at 260-266
The appellant submits that the magistrate failed to give sufficient weight to cultural factors. The appellant’s parents left Iran as refugees when the appellant was a young child. They eventually migrated to the United States of America. When the appellant was six years of age, he spent about two years in a boarding school in India because his parents were experiencing marital difficulties. The parents migrated to the United States of America, where the appellant spent most of his childhood. During that time, his parents separated. He left school at about the age of fifteen and worked until he moved to Australia in about 1994. His offending commenced shortly thereafter.
Cultural differences may be properly taken into account when considering the circumstances of a person’s offending. Although the same sentencing principles must be applied in every case, those principles include facts which exist by reason of an offender’s ethnic or cultural background. Sometimes important differences need to be recognised, and the criminal law should be sensitive to those differences; see: R v Reci.[8] The appellant’s life was disrupted when his parents moved from Iran. The period he spent in boarding school may well have been unsettling. Moving to a different country with a different culture may also be difficult. However, there is nothing in the appellant’s background which distinguishes him in a way that special consideration should be given to his cultural background. The appellant’s contention is without merit.
[8](1998) LSJS 373 at 378 per Perry J
Offences involving the unlawful entry into premises and offences of theft are serious offences. The breach of security of commercial premises causes significant disruption, cost and inconvenience to the victim. The legislature has provided lengthy maximum sentences for this type of offending. The penalty imposed by the magistrate is within the range of penalties that can be expected to be imposed for offending of this nature. Given the appellant’s prior history of offending, the penalty imposed was at the lower end of the scale. In commencing with a head sentence of twenty four months and allowing six months on account of the appellant’s plea of guilty, the magistrate was well within the range of penalties that are appropriate for this offending. No error has been demonstrated. The sentence of thirteen months imprisonment was not manifestly excessive.
Suspended sentence
The appellant submits that the magistrate erred in refusing to suspend the sentence. The appellant submits that he had reached a point in his life where he now realises the futility of continuing to offend. He submits that by consulting two psychologists he has developed an insight into his offending, and he is now motivated to cease his previous conduct. He submits that he has family support and prospects to commence a business, if released. He submits that the magistrate failed to give adequate weight to his prospects of rehabilitation.
The magistrate considered the appellant’s submissions, but rejected them. He had regard to the appellant’s history of persistent offending. The appellant had received suspended sentences on two occasions in the past, yet his offending continued. The appellant was on parole at the time of these offences.
In considering whether the sentence is to be suspended, a court must consider a person’s offending history. An offender who has had the benefit of previous suspended sentences will find it more difficult to establish good reason for a court to again suspend a sentence. Furthermore, an offender with a lengthy prior history of offending will find it difficult to establish good reason for a court to suspend a sentence.

The magistrate rejected the appellant’s submission. In my view, he was justified in doing so. It has not been demonstrated that the magistrate’s discretion miscarried.
The appeal must be dismissed.