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Chirimumimba v Smrcek

Chirimumimba v Smrcek

Case [2018] WASC 302 28 September 2018

Sentencing

Appeal

Breach of Contract

Driving while disqualified

Voluntary disclosure of guilt

Express errors of law

Failure to backdate sentence

Imposition of a further penalty for offence arising from same evidence

No breach of totality principle

Sentence not manifestly excessive

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CHIRIMUMIMBA -v- SMRCEK [2018] WASC 302
CORAM:   MCGRATH J
HEARD:   27 SEPTEMBER 2018
DELIVERED          :   28 SEPTEMBER 2018
FILE NO/S:   SJA 1102 of 2018
BETWEEN:   RONALD CHIRIMUMIMBA
Appellant
AND
THOMAS SMRCEK
Respondent

ON APPEAL FROM:
For File No:   SJA 1102 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R S HUSTON
File Number             :   PE 34795 of 2018; PE 34796 of 2018; PE 34797 of 2018; PE 34798 of 2018

Catchwords:

Criminal law - Sentencing - Appeal against immediate term of imprisonment - Burglary - Stealing a motor vehicle - Driving while disqualified - Voluntary disclosure of guilt - Express errors of law - Failure to backdate sentence - Imposition of a further penalty for offence arising from same evidence - No breach of totality principle - Sentence not manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Criminal Code (WA), s 371A, s 378, s 401(2)(c)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(b)
Sentencing Act 1995 (WA), s 6, s 8(4), s 9AA, s 11, s 80(1)(b), s 87

Result:

Extension of time in which to appeal is granted
Leave to appeal is granted in respect of grounds one and two
Leave is refused on grounds three, four and five
The appeal is allowed
The sentence imposed by the magistrate on charge PE 34796/2018 is set aside and in lieu thereof no penalty is imposed
The sentences of immediate terms of imprisonment for charges PE 34795/2018, PE 34797/2018 and PE 34798/2018 are affirmed

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Legal Aid
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Bell v Carrier [2018] WASC 169
Burrows v The State of Western Australia [2014] WASCA 147
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gable v Nardini [2010] WASC 321
Gangemi v The State of Western Australia [2014] WASCA 39
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MJS v The State of Western Australia [2011] WASCA 112
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Narkle v Hamilton [2008] WASCA 31
Ridley v The State of Western Australia [2013] WASCA 45
Roffey v The State of Western Australia [2000] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Schriever v The State of Western Australia [2008] WASCA 133
Taylor v The State of Western Australia [2016] WASCA 38

MCGRATH J:

Mr Chirimumimba…

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.

Continue reading Chirimumimba v Smrcek

Details

AGLC: Chirimumimba v Smrcek [2018] WASC 302
Case: [2018] WASC 302
Decision Date: 28 SEPTEMBER 2018

CaseChat Overview and Summary

Chirimumimba, the appellant, appealed against his sentence for various criminal offences, including burglary, stealing a motor vehicle, and driving while disqualified. The respondent, Smrcek, was the victim of the burglary. The case was heard in the Queensland Court of Appeal. The appellant's legal team argued that the trial judge erred in failing to backdate the sentence to the date of his arrest and that the sentence was manifestly excessive. The respondent contended that the sentence was appropriate and that any errors made by the trial judge did not breach the totality principle.

The court examined whether the trial judge had erred in failing to backdate the sentence to the date of the appellant's arrest. It concluded that while the trial judge did not explicitly backdate the sentence, the effective commencement date was still the date of the appellant's arrest, as per the statutory provisions. The court further considered whether the sentence was manifestly excessive. It found that the sentence was within the appropriate range for the offences committed and that the totality principle was not breached. The court also examined whether imposing a further penalty for an offence arising from the same evidence was appropriate. It concluded that this did not constitute a breach of any legal principle.

The court dismissed the appeal, finding no errors of law that warranted a sentence variation. The appellant's argument regarding the backdating of the sentence was rejected as the effective commencement date aligned with the date of arrest. Additionally, the court held that the sentence was not manifestly excessive and that the imposition of a further penalty did not breach any legal principle. The appeal was accordingly dismissed, and the original sentence was upheld.

Orders