R v Zoneff (No 3) No. Sccrm-99-265 - [2000] SASC 175

[2000] SASC 175

R V ZONEFF (NO. 3)

LANDER J. The prisoner was convicted on 7 April 2000 of 39 counts of false pretences. The offences were committed over a period between 16 January 1996 and 5 April 1997. Fifteen of the offences were committed before 11 May 1996.
Mr Zoneff had been convicted on 3 July 1987 of a number of offences including false pretences, forgery, uttering and fraudulent conversion. He was sentenced to be imprisoned for 14 years and a non parole period of 9 years was set. The sentence was to commence on 12 May 1986.
He appealed against that sentence and on 18 November 1987 the Court of Criminal Appeal allowed his appeal and reduced the head sentence to ten years and the non parole period to seven years, the sentence to commence on 12 May 1986.
Mr Zoneff was convicted of six counts of false pretences and fraudulent conversion on 16 April 1997. He had previously been on bail in respect of those offences but upon his conviction his bail was revoked. On 17 March 1998 sentence was pronounced and he was sentenced to be imprisoned for 7 years and 6 months cumulative upon the 1987 sentence, for which he was then on parole, making a total of ten years nine months and 26 days. The trial Judge fixed a non parole period of six years after taking into account 12 months that the appellant had served in custody prior to the pronouncement of the sentence.
Mr Zoneff appealed to the Court of Criminal Appeal against both conviction and sentence. In the Court of Criminal Appeal his sentence was reduced to four years which when added to the three years nine months and 26 days outstanding on the first sentence made a total of seven years three months and 26 days. The Court Of Criminal Appeal fixed a non parole period of five years. It dismissed his appeal against conviction.
Mr Zoneff appealed, with the leave of the High Court, to the High Court against the 1997 convictions. On 7 March 2000 the High Court allowed that appeal and set aside those convictions and ordered a re-trial.
In my opinion the time served by Mr Zoneff in prison between April 1997 and 7 March 2000 is attributable to the charges for which he was convicted in 1997. If he is to be retried in respect of those offences and if he was convicted in respect of any of those offences then clearly enough the sentencing Judge would have to take into account the period which he has served in respect of the 1997 convictions.
If the 1997 convictions had not been set aside Mr Zoneff could not have claimed that he had served time in respect of these offences whilst at the same time serving the sentence of imprisonment for the 1997 convictions.
Mr Zoneff was not arrested in respect of these offences. An information was filed in the Magistrates Court, in February 1998, before…

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.

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Details

Case: [2000] SASC 175
Decision Date: 23 June 2000

CaseChat Overview and Summary

In the Supreme Court of South Australia, Mr. Zoneff was convicted on 7 April 2000 of 39 counts of false pretences committed between 16 January 1996 and 5 April 1997. Zoneff had previously been convicted of similar offences in 1987 and 1997, for which he had been sentenced to imprisonment. The 1997 convictions were later set aside by the High Court, leading to a retrial for these offences. The primary legal issues involved determining whether Zoneff should receive credit for time served in custody during the period between the setting aside of the 1997 convictions and the retrial, and whether his parole for the 1987 convictions had expired before he committed the new offences.

The court held that it would be unfair to disregard the time Zoneff spent in custody from 1 May 1998, as he was serving time for both the 1997 convictions and the new offences. The court applied Section 30(2) of the Criminal Law (Sentencing) Act 1988 to reduce his sentence by the period served, noting that this credit would be considered by the sentencing judge if Zoneff were retried and convicted for the 1997 offences. Additionally, the court found that Zoneff was on parole at the time he committed the new offences, and therefore, the unexpired portion of his parole must be taken into account when determining his total sentence.

The court concluded that Zoneff's sentence would be cumulative with the unexpired portion of his 1987 sentence and would date from the date of the new sentence, while giving credit for the two years and two months already served. This decision ensures that Zoneff receives fair consideration of the time he has spent in custody and acknowledges the impact of his parole status at the time of the new offences.

Orders