TAZROO v POLICE No. SCGRG-98-887 Judgment No. S6826

[1998] SASC 6826

TAZROO  v  POLICE
[1998] SASC 6826

Magistrates Appeal (Ex tempore)
Bleby J

1. The appellant appeals against a sentence imposed on him in the Port Adelaide Magistrates Court on 22 May 1998. The appellant, who was unrepresented when he was sentenced, was charged with two offences, namely, that on 28 October 1997 at West Croydon he broke and entered into a dwellinghouse and committed an offence of larceny contrary to s170(1)(a) of the Criminal Law Consolidation Act 1935 The second charge was that on 18 October 1997 at Adelaide he stole a cash tin to the value of $10 and money in the amount of $117.10 contrary to s131 of the Criminal Law Consolidation Act. 

2. The circumstances of those offences were, briefly, first in relation to the housebreaking and larceny, that on 28 October 1997 he broke into a house at West Croydon by smashing a window.  He stole an assortment of jewellery, some wallets containing foreign currency and other items of personal property together valued at about $1,000.  There was some damage to the house, estimated to be about $200.   The property was recovered shortly after when the appellant was arrested.  He initially denied breaking into the house and declined to answer questions. 

3. Ten days before, on 18 October, in relation to the larceny offence, he stole a cash box from a counter of a city shop.  He was arrested shortly after in the city and the cash box and its contents were recovered.  He declined to answer questions on that occasion also.  The appellant was remanded in custody in relation to the breaking and entering offence on 29 October 1997 and remained in custody in relation to that offence until 3 December.  I should add that that period is agreed between the appellant, who appeared before me in person, and counsel for the respondent. 

4. On that day, he was released on bail and he was then later taken into custody in relation to other matters.  As from 5 January 1998, he had been in custody pursuant to a warrant issued by the Parole Board for breach of his parole.  I should add that he was on parole at the time when these two offences were committed.  The appellant, after a number of remands, pleaded guilty to both charges on 8 May 1998 and was remanded for sentence initially to 15 May 1998, but owing to the illness of the magistrate, was further remanded to 22 May 1998.  The remand to 15 May was for the purpose of ascertaining details of the unexpired portion of parole.  That information was apparently supplied, but it was supplied as at 15 May 1998. 

5. Prior to the matter proceeding, the sentencing magistrate urged the appellant to obtain some legal advice, but he indicated that he did not want legal advice and he wanted the matter to proceed forthwith.  There is a dispute as to whether the magistrate advised the appellant of the likely penalties for offences of the type he had pleaded to and of his Honour’s obligations in respect of the appellant’s unexpired portion of parole which had been breached by the offences which were before the court. 

6. However, I am satisfied that the appellant was under no illusion as to the type of sentence he might expect.  He had a number of convictions in the past of breaking and entering, and his own experience told him what the effect of a custodial sentence would be on an unexpired period of parole.  Indeed, the appellant did not complain on this appeal of the length of the sentence imposed and I will come to that in a moment. 

7. The appellant was given an opportunity to make submissions to the court, and in addressing the magistrate submitted that if he were to continue to remain in custody he would be subjected to abuse and assaults from other inmates.  The magistrate, by his sentencing remarks, seems to have carefully weighed and taken into account everything that the appellant put to him.  He took into account a variety of matters, including an extensive psychological report which had been tendered by the appellant.  The magistrate noted that the appellant had a long history of breaking and entering offences and that these offences that he was then considering were committed whilst the appellant was on parole.  If I may say, with respect, I think the sentencing remarks of the magistrate were comprehensive and complete and omitted nothing that had been put to him. 

8. The sentence imposed in relation to the breaking and entering offence was a penalty of 18 months imprisonment to commence at the expiration of the unexpired portion of the appellant’s parole which, on the magistrate’s then understanding, was a period of one year, three months and 22 days. The appellant was required to serve the period of the unexpired parole pursuant to the provision of s75 of the Correctional Services Act 1982. In relation to the larceny offence, the sentencing magistrate convicted the appellant but imposed no penalty. Therefore, the resultant total head sentence, at least as understood by the magistrate at that time, was two years, nine months and 22 days. The magistrate imposed a non-parole period of 12 months to commence immediately. The maximum penalty for the offence of building break and larceny is a period of imprisonment for eight years.

9. In the case of R v Halse (1985) 38 SASR 594, the Court of Criminal Appeal considered that the appropriate tariff for this offence should be in the range of between 12 and 18 months where there has been a single breaking and entering, a plea of guilty and a relatively small value of property involved, and where the offender had previously been imprisoned for similar offences. If anything, the penalty actually imposed, taking into account the two offences in this case was perhaps a little on the generous side to the appellant. It would have been open to the magistrate and within his sentencing discretion to have fixed a heavier penalty than he did.

10. However, the appellant does not complain of the actual penalty that was imposed.  In his grounds of appeal, the appellant notes that he was not represented by a solicitor.   He says he was not given a chance to finish his submissions before the magistrate and was not given the opportunity to put the most important aspect of those submissions, which was that some further time that he had spent in custody should be taken into account before sentence was passed on him. 

11. He takes issue with the fact that the sentence commenced on the day that he was sentenced and complains that the sentence should have been suspended. 

12. As to the time spent in custody before sentence, he also submits that the fact that some five months or so spent in solitary confinement should be brought into account.  He had been in solitary confinement by way of protective custody for reasons which he then explained to the magistrate, and he considered that to be a relevant consideration. 

13. It appears that the magistrate may, indeed, have erred if, in fact, he did not allow the appellant to make full submissions regarding the period he had previously spent in custody in relation to this offence.  It is now conceded by the respondent that there was a period between 29 October 1997 and 3 December 1997 which was spent in custody in respect of this offence which the magistrate appears to have overlooked.  That was the period of one month and five days. 

14. He was in custody on a warrant from the Parole Board for breach of parole as from 5 January 1998 to the date of the sentencing by the magistrate on 22 May 1998.  It was also conceded by the respondent that because of the delay in sentencing, owing to the illness of the magistrate, the period of unexpired parole was not adjusted to the actual sentencing date of 22 May, and that the unexpired period of parole at the date of sentence was, in fact, one year, three months and 15 days not one year, three months and 22 days, which the magistrate took into account. 

15. Because the sentencing magistrate failed to take these factors into account, the appeal must be allowed and a fresh sentence must be imposed.  That sentence will be one which will have to operate from today.  It will still have to take into account the one month and five days spent in custody in relation to this offence.  I, therefore, propose to reduce the head sentence for this offence to a period of 17 months. 

16. Because I am setting aside the magistrate’s sentence and imposing a fresh sentence today, that sentence will now have to be served after the expiry of the presently unexpired period of parole, which now has to be served pursuant to s75 of the Correctional Services Act.  On my calculation, that period is now, as from today, one year and 17 days.  That period, of course, is relevant for the fixing of a non-parole period.  Taking into account the reduction in the actual sentence for this offence and the period now to be served for the unexpired period of parole and the period which has, in fact, been served since the date the magistrate originally sentenced the appellant and today, I propose to fix a non-parole period of seven months from today. 

17. As to the question of protective custody, I do not consider that is relevant in relation to the failure to suspend the sentence of imprisonment.  If it were, one could expect submissions based on a variety of possible conditions under which defendants are kept in custody in mitigation of their penalty or in support of a suspended penalty.  The conditions of custody are for determination by the Correctional Services Department.  The fact that there may be reasons why a particular custodial regime may be imposed during a period of remand or on revocation of parole can have no bearing on the suspension of the sentence imposed.  The fact that a defendant has been under restriction and the prospect of being at risk of harm and, therefore, under special restrictions, may, in appropriate circumstances, result in a very small allowance in the period of custody: R v Gooley (1996) 66 SASR 380.

18. However, I do not consider that prospect was something which the magistrate failed to take into account in determining the sentence or that I have failed to have regard to in fixing the new sentence as a result of the allowing of this appeal.  In my opinion, there are no other reasons why the sentence should be suspended.  The offences involved in this case were serious offences, notwithstanding that the property was, in fact, recovered.   They were both committed whilst the appellant was on parole and in breach of that parole.  That constitutes a serious breach of trust reposed in a prisoner, and is the strongest indication that parole means nothing by way of an attempt to rehabilitate oneself.  The appellant also has an extensive criminal background and history, especially in relation to offences of dishonesty and prior breaches of parole.  It would be quite inappropriate for the sentence to be suspended.  I do not, therefore, propose to do so.   The orders will, therefore, be as follows:

1...... Appeal allowed. 

1. Set aside the sentence imposed in the Magistrates Court on 22 May 1998 in matter MCPAD 97/10840 relating to the offence of breaking and entering. 

1. Substitute in lieu of that sentence a head sentence of 17 months to be served at the expiration of the unexpired balance of parole as at the date of the offence, 28 October 1997, less the period spent in custody since then pursuant to the warrant from the Parole Board for breach of parole, being an outstanding period of one year and 17 days. 

1. Total period of imprisonment, therefore, equals two years, five months and 17 days.

1. I fix a non-parole period of seven months to operate from today.