JOHNSON -v- BALL [2006] WASC 216

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 216
Case No:	SJA:1038/2006	Heard:	11 SEPTEMBER 2006
Coram:	McKECHNIE J	Delivered:	11/09/06
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant re-sentenced
Category:	D
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Parties:	JOSEPHINE JOHNSON GEOFFREY PETER GEORGE BALL
Catchwords:	Sentence Two offences assaulting public officer Whether error in refusing to order parole "Global" sentence term not known to law Error to pass global sentence
Legislation:	Sentencing Act 1995 (WA), s 88, s 89
Case References:	Austin v Grapes & Ors [2004] WASCA 102 Pickett v The State of Western Australia [2004] WASCA 291 Yanko v The Queen [2004] WASCA 37 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : JOHNSON -v- BALL [2006] WASC 216 CORAM : McKECHNIE J HEARD : 11 SEPTEMBER 2006 DELIVERED : 11 SEPTEMBER 2006 FILE NO/S : SJA 1038 of 2006 BETWEEN : JOSEPHINE JOHNSON

Appellant

AND

GEOFFREY PETER GEORGE BALL

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE A L BLOEMEN

File No : DY 221 of 2006, DY 222 of 2006

Catchwords:

Sentence - Two offences assaulting public officer - Whether error in refusing to order parole - "Global" sentence term not known to law - Error to pass global sentence

Legislation:

Sentencing Act 1995 (WA), s 88, s 89

(Page 2)

Result:

Appeal allowed

Appellant re-sentenced

Category: D

Representation:

Counsel:

Appellant : Mr J I Brash

Respondent : Mr M G Nicol

Solicitors:

Appellant : Legal Aid WA

Respondent : State Director of Public Prosecutions

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

Austin v Grapes & Ors [2004] WASCA 102
Pickett v The State of Western Australia [2004] WASCA 291
Yanko v The Queen [2004] WASCA 37

Case(s) also cited:

Nil

(Page 3)

1 McKECHNIE J: On the afternoon of 17 March 2006 at Lytton Park Reserve in Derby two police officers were in the process of effecting an arrest when the appellant approached them, shouted threats and threw empty beer cans at the officers. At the time she was in company with about 50 other intoxicated people. Another person then punched a female police officer causing her to hit the ground. As the officer got back to her feet the appellant rushed at her and pushed her back. The officer was then struck and knocked senseless by another person. The appellant attacked her again. The entire crowd then turned on the police. The appellant rushed at the police officer, picked up a rock the size of a fist and threw it at the complainant striking her on the shin. The appellant threw a rock at a male police officer striking him on the right shoulder causing abrasion and bruising. The appellant's role in the affair was part of what was a near riot involving many intoxicated people attacking the police.

2 On 3 April 2006 the appellant appeared in the Broome Magistrates Court and pleaded guilty to…

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 Johnson v Ball

Details

AGLC: Johnson v Ball [2006] WASC 216
Case: [2006] WASC 216
Decision Date

CaseChat Overview and Summary

Josephine Johnson, the appellant, was found guilty of two counts of assaulting a public officer and was sentenced to 16 months imprisonment without parole by the Magistrates Court. Johnson appealed the sentence on the grounds that the Magistrate erred in law by not making her eligible for parole, by imposing a sentence which was excessive in all the circumstances, and by failing to consider alternatives to immediate imprisonment. The court found merit in the third ground of appeal, that the Magistrate erred in imposing a global sentence, a term not known to law, and that it was unclear whether the Magistrate regarded the two assaults as concurrent, separate or partly separate sentences.

The appeal was allowed, and the sentence was set aside. The court re-sentenced Johnson to a term of 12 months' imprisonment on each charge of assaulting a public officer, to be served concurrently, with a parole eligibility order, such sentence to take effect from 3 April 2006. The court considered that the overall protection of the community would be enhanced if Johnson was able to address her alcoholism and that this was more likely to occur if she had the benefit of parole supervision while serving a portion of her sentence in the community. The court acknowledged that the Magistrate's exercise of discretion was not a demonstrable error but exercised its discretion differently, placing greater weight on the fact that the offences occurred while the appellant was in a state of severe intoxication.

Orders