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…

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.

Keep reading for free

Create a free CaseChat account to read TAZROO v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] SASC 14
Decision Date: 20 January 2005

CaseChat Overview and Summary

The appellant, who had been convicted of non-aggravated serious criminal trespass and theft, appealed against the sentence imposed by the magistrate. The sentence was thirteen months imprisonment. The appellant sought an extension of time to appeal, which was opposed by the police but granted by the court. The appellant was unrepresented at the hearing. The court had to determine whether the appellant's explanation for failing to comply with the rules was reasonable, whether the magistrate had given sufficient weight to the psychologists' reports, whether the magistrate had adequately considered the fact that the appellant would need to serve his sentence in protective custody, whether the magistrate had given adequate weight to the appellant's cultural background and his desire to rehabilitate himself, whether the sentence was manifestly excessive, and whether the magistrate had erred in refusing to suspend the sentence of imprisonment.

The court found that the appellant had attempted to institute the appeal within time but had been unable to do so because he had not complied with the administrative requirements necessary to institute his appeal. The court accepted that an unrepresented litigant may have difficulty in complying with the formalities required to institute proceedings, and that the appellant’s explanation was reasonable. The court granted an extension of time for filing the notice of appeal. The court found that the magistrate had given adequate consideration to the appellant's submissions and the psychologists' reports, and that the sentence was not manifestly excessive. The court dismissed the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SULAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SULAN J

Full text does not contain this section.