Johnson v Scott & Anor - [2004] WASCA 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: JOHNSON -v- SCOTT & ANOR [2004] WASCA 76

CORAM: EM HEENAN J

HEARD: 23 JANUARY 2004

DELIVERED : 23 JANUARY 2004

PUBLISHED : 16 APRIL 2004

FILE NO/S: SJA 1103 of 2003

BETWEEN: NICOLE DESIREE JOHNSON
Appellant
AND
STEPHEN JOHN SCOTT
First Respondent
PETER HAROLD MASON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS AT ARMADALE
Coram   :MAGISTRATE MALLEY SM
File Number             : AR 3403-13 of 2003 AR 3987-89 of 2003 AR 5218 of 2003

Catchwords:

Criminal law - Sentencing - Assault occasioning bodily harm - Fraud - Effective sentence of 20 months' imprisonment - Mother with infant child - Insufficient consideration given to suspended sentence - Appeal allowed - Suspended sentence imposed for reduced period

Legislation:

Sentencing Act 1995

Result:

Appeal allowed
Suspended sentence imposed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr S Rafferty
Second Respondent      :     Mr S Rafferty

Solicitors:

Appellant:     In person
First Respondent           :     State Director of Public Prosecutions
Second Respondent      :     State Director of Public Prosecutions

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

Dinsdale v The Queen (2000) 202 CLR 321
Michael v The Queen [2004] WASCA 4

Case(s) also cited:

Lowndes v The Queen (1999) 195 CLR 665
R v White [2002] WASCA 112

EM HEENAN J: This appeal was heard on 23 January 2004 and at the conclusion of the hearing I gave oral reasons for allowing the appeal, setting aside the sentences of imprisonment which had been imposed on the appellant and substituting suspended sentences of imprisonment. At the time of giving those oral reasons I indicated that more detailed written reasons for that decision would be given later but because the appellant had surrendered to custody it was desirable that the appeal be formally disposed of on that date. These are my detailed reasons for that decision.
This is an appeal, by leave granted by Wheeler J on 17 October 2003, from sentences imposed by his Worship Mr Malley SM in the Court of Petty Sessions at Armadale on 22 August 2003 following the convictions of the appellant, upon her pleas of guilty, on a charge of assault occasioning bodily harm (Criminal Code, s 370(1)) and on 10 charges of fraud and one charge of stealing (CriminalCode, s 409(1)(c) and s 378). The learned Magistrate had sentenced the appellant to 12 months' imprisonment in respect of the charge of assault occasioning bodily harm and he also imposed sentences of imprisonment of 8 months for each of the charges of fraud and stealing. The latter sentences were all ordered to be served concurrently but those concurrent sentences were to be served cumulatively upon the sentence of 12 months for assault occasioning bodily harm. This resulted in an effective head sentence of 1 year and 8 months' imprisonment.
Following these sentences the appellant was immediately imprisoned and served about two months before she was released on bail on 17 October 2003…

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 Scott & Anor

Details

AGLC: Johnson v Scott & Anor [2004] WASCA 76
Case: [2004] WASCA 76
Decision Date: 16 APRIL 2004

CaseChat Overview and Summary

The appeal involved the defendant, Scott, who was convicted of assault occasioning bodily harm and fraud. The case was heard in the Court of Appeal, where the primary issue was whether the sentence imposed by the lower court was excessive and whether a suspended sentence should have been considered given Scott's circumstances, including being a mother of an infant child. The appeal questioned whether the sentencing judge had given sufficient weight to the possibility of a suspended sentence.

The appeal court considered the principles of sentencing and the need to balance the severity of the offence with the personal circumstances of the offender. The court noted that the sentencing judge had not adequately explored the option of a suspended sentence, which could have allowed Scott to care for her child while serving a sentence. The court found that the primary judge had not sufficiently considered the mitigating factors, including Scott's role as a primary caregiver for her infant, which could have warranted a more lenient approach. As a result, the appeal was allowed on the grounds that a suspended sentence should have been more seriously considered.

Given the findings, the Court of Appeal ordered a re-sentencing by the lower court, directing that a suspended sentence be imposed for a reduced period, taking into account the mitigating circumstances of Scott's role as a mother. The effective sentence was to be 20 months' imprisonment, but with the possibility of a suspended sentence to address the specific personal circumstances presented. This outcome aimed to provide a more balanced and humane approach to sentencing in this case.

Orders