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
MCGRATH J:
Mr Chirimumimba…
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- AGLC
- Chirimumimba v Smrcek [2018] WASC 302
- Case
- [2018] WASC 302
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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