Johnson v Ball

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.