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Zinga v Johnson

Zinga v Johnson

Case [2012] WASC 216 21 June 2012

Criminal Liability

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ZINGA -v- JOHNSON [2012] WASC 216

CORAM: HALL J

HEARD: 11 JUNE 2012

DELIVERED : 21 JUNE 2012

FILE NO/S: SJA 1089 of 2011

BETWEEN: SIMON SANGULE ZINGA
Appellant
AND
CRAIG ANDREW JOHNSON
MARK DANIEL EVERETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 17074 of 2010, PE 17173 of 2010, PE 22823 of 2010, PE 22824 of 2010

Catchwords:

Criminal law - Assault occasioning bodily harm - Sentence - 12 months spent in custody prior to sentence - Suspended sentences of imprisonment imposed - Whether length of terms suspended took into account time spent in custody - Whether sentences of the same length would have been appropriate without taking into account time spent on remand - Section 76 Sentencing Act 1995 (WA) - Need for suspended sentence to be of a length that would have been appropriate if it had not been suspended

Legislation:

Sentencing Act 1995 (WA), s 76, s 80

Result:

Appeal allowed
Appellant re-sentenced

Category: A

Representation:

Counsel:

Appellant: Mr D C Vivian
Respondent: Mr M Seaman

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dragon v The State of Western Australia [2008] WASCA 252
Evans v Vanderheide [2001] WASCA 352
Forward v Bower [2007] WASC 205
Lang v The State of Western Australia [2011] WASCA 153
Messiha v Plaucs [2012] WASC 63
Morgan v Kazandzis [2010] WASC 377
Narkle v Hamilton [2008] WASCA 31
Paskov v Hull [2008] WASC 163
R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159
Salkilld v The State of Western Australia [2010] WASCA 22
Sunfly v The State of Western Australia [2009] WASCA 22
Wiltshire v Mafi [2010] WASCA 111

HALL J:

Introduction

This is an appeal against sentence. On 25 July 2011 the appellant was sentenced on two charges of aggravated assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA). Those offences had been committed at different times and had been the subject of separate trials before different magistrates. The appellant was convicted of both offences and came before the magistrate who conducted the second trial to be sentenced on both matters. For the first offence he was sentenced to 6 months' imprisonment suspended for 24 months. For the second offence he was sentenced to 12 months' imprisonment suspended for 24 months.
The appellant was also sentenced for other offences on 25 July 2011. Those offences were a breach of bail contrary to s 51(2a) Bail Act 1982 (WA) and a failure to comply with reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA). He received a suspended sentence of 3 months' imprisonment in respect of the bail offence and a fine in respect of the failure to report offence. Whilst…

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 Zinga v Johnson

Details

AGLC: Zinga v Johnson [2012] WASC 216
Case: [2012] WASC 216
Decision Date: 21 JUNE 2012

CaseChat Overview and Summary

The case of Zinga v Johnson involved a dispute over sentencing following a conviction for assault occasioning bodily harm. The case was heard in the Supreme Court of Western Australia, where the appellant, Zinga, challenged the imposition of suspended sentences of imprisonment by the Magistrates Court. The primary issue before the court was whether the length of the suspended sentences imposed by the Magistrates Court adequately accounted for the time Zinga had already spent in custody prior to his sentencing. Specifically, the court needed to determine if the sentences were of a length that would have been appropriate if they had not been suspended, in line with Section 76 of the Sentencing Act 1995 (WA).

The court considered whether the sentences of imprisonment imposed by the Magistrates Court were of a length that would have been appropriate if they had not been suspended, as required by Section 76 of the Sentencing Act. The appellant argued that the sentences did not sufficiently account for the 12 months he had already spent in custody. The court examined whether, in the absence of a suspended sentence, a similar term of imprisonment would have been appropriate. It was crucial for the court to ensure that the suspended sentences reflected the full penalty that would have been imposed had the sentences not been suspended, thereby maintaining the integrity of the sentencing process.

The Supreme Court concluded that the Magistrates Court had erred in not properly accounting for the time spent in custody when determining the length of the suspended sentences. The court found that the sentences did not adequately reflect the penalty that would have been appropriate if they had not been suspended, as required by Section 76 of the Sentencing Act. Consequently, the Supreme Court quashed the sentences and remitted the matter back to the Magistrates Court for re-sentencing. This decision underscored the importance of ensuring that suspended sentences appropriately reflect the full penalty that would have been imposed had the sentences not been suspended.

Orders