ZAMMIT -v- ILLICH [2003] WASCA 88

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 88
Case No:	SJA:1144/2002	Heard:	31 MARCH 2003
Coram:	MCKECHNIE J	Delivered:	31/03/03
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	DANIEL WILLIAM ZAMMIT PAUL STEPHEN ILLICH
Catchwords:	Road traffic Fifth offence of driving while disqualified Whether sentence of imprisonment open Criminal law and procedure Sentence suspended sentence Further offence Whether unjust to impose immediate imprisonment
Legislation:	Road Traffic Act 1974 (WA), s 49 Sentencing Act 1995 (WA), s 80
Case References:	Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 Holcroft v The Queen [1997] 2 Qd R 392 Cross v Cook [2001] WASCA 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ZAMMIT -v- ILLICH [2003] WASCA 88 CORAM : MCKECHNIE J HEARD : 31 MARCH 2003 DELIVERED : 31 MARCH 2003 FILE NO/S : SJA 1144 of 2002 BETWEEN : DANIEL WILLIAM ZAMMIT

Appellant

AND

PAUL STEPHEN ILLICH

Respondent

Catchwords:

Road traffic - Fifth offence of driving while disqualified - Whether sentence of imprisonment open

Criminal law and procedure - Sentence suspended sentence - Further offence - Whether unjust to impose immediate imprisonment

Legislation:

Road Traffic Act1974 (WA), s 49

Sentencing Act1995 (WA), s 80

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr R D Young

Respondent : Mr M A G Jenkin

Solicitors:

Appellant : Gunning Young

Respondent : State Crown Solicitor

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

Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
Holcroft v The Queen [1997] 2 Qd R 392

Case(s) also cited:

Cross v Cook [2001] WASCA 242

(Page 3)

1 MCKECHNIE J:

Introduction

2 Because I have had the benefit of submissions in advance and listened to counsel this morning, I am able to deliver judgment now. This is an appeal against an order that the appellant serve an immediate term of imprisonment for driving while disqualified because he had breached a suspended sentence of imprisonment imposed for a fourth offence of driving while disqualified within 2 months of the imposition of that sentence.

3 The essence of the appeal is that the circumstances which have become known since the suspended sentence was imposed are sufficient to make it unjust to trigger a sentence of immediate imprisonment. Allied to this is a submission that a concurrent term of 3 months and 1 day's imprisonment for a fifth offence of driving under disqualification should have been suspended, in essence, for the same reasons as would have led to the further suspension of the earlier term.

Background

4 The background facts are that the appellant was 25 years old at the time of sentence. He is a qualified electrician. After moving interstate for some time he commenced a business on 17 November 2001 in Kensington. It is a fish and chip shop cum cafe known as the Smashed Crab. He apparently devotes…

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 Zammit v Illich

Details

AGLC: Zammit v Illich [2003] WASCA 88
Case: [2003] WASCA 88
Decision Date: 31 MARCH 2003

CaseChat Overview and Summary

In the matter of Zammit v Illich, the respondent, a habitual offender with a history of driving while disqualified, was charged with a fifth offence under the Road Traffic Act. The respondent had been previously convicted and sentenced to a term of imprisonment, which was suspended. Upon committing a further offence, the court considered whether it was appropriate to impose immediate imprisonment or to suspend the sentence again. The case reached the appellate court, which was tasked with determining whether the imposition of immediate imprisonment was just in the circumstances.

The court was required to address the issue of whether it was appropriate to impose immediate imprisonment for a fifth offence of driving while disqualified, particularly when the respondent had previously been granted a suspended sentence. The legal principles guiding the court included the need to balance the interests of public safety, the deterrence of criminal behaviour, and the principles of proportionality and justice in sentencing. The court also had to consider the precedent set by earlier cases regarding the treatment of repeat offenders and the circumstances under which a suspended sentence might be revoked.

The court found that, given the respondent's persistent offending behaviour and the need to uphold the integrity of the legal system, it was appropriate to impose immediate imprisonment. The court emphasised the importance of deterrence and the need to protect public safety. The appellate court concluded that the lower court had not erred in its assessment of the appropriate sentence, and accordingly dismissed the appeal. The respondent's sentence of imprisonment was upheld, and no further orders were made.

Orders

Orders of the court

Appeal dismissed

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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