Tazroo v Police - [2002] SASC 155

[2002] SASC 155
TAZROO V POLICE
Magistrates Appeal (Criminal)

LANDER J. The appellant was charged with two offences both which occurred on 9 July 2001. First, that he remained in a non residential building of Imax Theatres as a trespasser with an intention of committing an offence namely larceny and secondly, he was on the same premises without lawful excuse.
He pleaded not guilty to both offences and at a trial at which he was represented the charges were found to be proved. A conviction was entered on the first count. The second count, which was an alternative to the first count, was dismissed.
The conviction on the first count constituted a breach of the good behaviour condition of three separate bonds. The magistrate refused to excuse the breach and pursuant to s 58(3) of the Criminal Law (Sentencing) Act1988 (SA) he ordered suspended sentences for each of those three bonds to be carried into effect.
By reason of the appellant having to serve a sentence of imprisonment he became liable to serve the unexpired balance of a parole period pursuant to s 75 of the Correctional Services Act 1982 (SA).
The unexpired balance of the parole periods was nine months and nine days. The suspended sentences which had to be served were respectively 12 months, 3 months and 3 months.
The conviction on the first count therefore had the effect of requiring the appellant to serve 27 months and 9 days in custody.
The magistrate said he would have imposed a penalty of 13 months imprisonment for the offence for which he was convicted.
However, he gave credit to the appellant for the period spent in custody namely five months, one week and five days. He therefore imposed a period of imprisonment of seven months, two weeks and two days in respect of the appellant’s latest conviction. He made that sentence cumulative on the other sentences which the appellant became liable to serve by reason of his conviction.
The total imprisonment to be served therefore amounted to 34 months, 2 weeks and 11 days.
He fixed a non parole period of 15 months.
The conviction was entered on 14 November 2001 and the sentence was imposed on 21 December 2001. On 19 February 2002 the appellant lodged his own notice of appeal.
The grounds of appeal are not clear but the notice of appeal complains of both conviction and sentence. However, the appellant conceded during the hearing of the appeal that if the magistrate was right to enter a conviction the sentence was not manifestly excessive.
In respect to the conviction the appellant’s complaint is that the conviction is unsafe and unsatisfactory.
Appeals to this Court from the criminal division of the Magistrates Court are regulated by s 42 of the Magistrates Court Act 1991 (SA) (the Act) and r 96C of the Supreme Court Rules 1987 (SA).
This appeal is out of time. The appellant has sought an extension of time within which to appeal. The respondent…

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: [2002] SASC 155
Decision Date: 21 May 2002

CaseChat Overview and Summary

The appellant in the case of Tazroo v Police was convicted of two offences that occurred on 9 July 2001, namely trespassing in a non-residential building with intent to commit larceny and being on the premises without lawful excuse. The appellant pleaded not guilty and was represented at trial, but the charges were found to be proved, resulting in a conviction on the first count, with the second count being dismissed as an alternative to the first. The conviction led to the breach of good behaviour conditions in three separate bonds, and the magistrate ordered suspended sentences for each of those bonds to be carried into effect, along with a requirement to serve an unexpired balance of a parole period. The appellant appealed against both the conviction and the sentence, but conceded that if the conviction was correct, the sentence was not manifestly excessive.

The legal issues in this case involved the safety and satisfaction of the conviction, as well as the appropriate sentence for the offence. The appeal was out of time, but the appellant sought an extension, which was granted by the court. The court had to reconsider all the evidence before the magistrate, including the credibility of witnesses, and make its own findings. The court also had to assess whether the conviction was unsafe or unsatisfactory and whether the sentence was manifestly excessive.

The court found that the appellant's complaints about the conduct of his counsel on bail and at trial were not proven and did not prejudice his defence. The court also examined the magistrate's reasons for the conviction and found no error of law. The court accepted the magistrate's assessment of the credibility of the witnesses and the sufficiency of the prosecution evidence to make out the charge beyond reasonable doubt. The court concluded that the conviction was safe and satisfactory and that the sentence was not manifestly excessive, considering the appellant's criminal history and the need for personal deterrence. Therefore, the appeal against both conviction and sentence was dismissed.

In summary, the court upheld the conviction and sentence imposed by the magistrate, finding no error in the conviction process and no excessiveness in the sentence. The appeal was dismissed, and the appellant was required to serve the sentence imposed by the magistrate.

Orders