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Vartzokas v Zanker (1989) SASCFC

King CJ, Legoe J, Bollen J

Sentencing procedures, criminal law, the purpose of sentencing, actual bodily harm

Facts: The appellant was charged with an offence of assault occasioning actual bodily harm occurring on 20 October 1986. He was tried on that charge before a magistrate and on 17 February 1988 the charge was dismissed. There was a Crown appeal to the

Supreme Court. The learned judge on appeal held on 30 June 1988 that the charge had been proved and remitted the matter to the magistrate for conviction and sentence. On 8 September 1988 the appellant was sentenced to 15 months imprisonment with a non-parole period of 11 months. He was imprisoned for seven days at Yatala Prison and was then released on bail pending appeal. His appeal to the Supreme Court was determined by a judge of the court on 14 November 1988. The learned judge allowed the appeal and reduced the sentence to six months imprisonment. He granted leave to appeal to the Full Court.

The circumstances of the assault were unusual. The circumstances of the offence were conveniently set out by the judge who allowed the Crown appeal in the following passage from his reasons for judgment

Law: As a general rule this Court will entertain an appeal against a dismissal of an appeal against an order of a court of summary jurisdiction, by a single judge of the court, only if it involves a matter of principle of general importance or is necessary to correct a manifest injustice. I have reached the conclusion that there has in the present case been an error in principle which justifies the intervention of this Court. In his remarks on sentence the learned sentencing magistrate said this:

“A suspended sentence might be conducive to the rehabilitation of the defendant. It would allow him to continue his employment without interruption. It would protect him from the evil influences he would encounter in prison. He could be required by a condition of a recognisance to serve a sentence in a more positive and beneficial way by doing community service work. I should not concentrate on the needs of the defendant in isolation. I pause to ask: should it readily be assumed that the defendant is in need of rehabilitation? He heartlessly exploited an entirely innocent victim. He chose to do that. It has not been submitted that he was impelled to do that by any illness or that he was predisposed to such behaviour by his environment or his experiences of life.”

In the course of his reasons for judgment, the learned judge on appeal expressed the view that the magistrate's “reasoning cannot be faulted”. He thereby endorsed, perhaps unwittingly, the magistrate's statement of principle regarding rehabilitation.

Holding: It is an error of principle for a sentencing court to treat rehabilitation or reform as an object of sentencing, as confined to persons subject to personal or social disadvantage. Consideration of the imposition of a suspended sentence for the purpose of rehabilitation as opposed to the need for deterrence and punishment.

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