Clavell v Burgoyne - [2003] NTSC 29

Clavell v Burgoyne [2003] NTSC 29
PARTIES:TIMOTHY CLAVELL

v
ROBERT BURGOYNE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:20208511 & 20208921
DELIVERED:  28 March 2003
HEARING DATES:  14 March 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

REPRESENTATION:
Counsel:
Appellant:R Goldflam
Respondent:  C Roberts
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Department of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200314
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Clavell v Burgoyne [2003] NTSC 29
No. 20208511 & 20208921

BETWEEN:
TIMOTHY CLAVELL

Appellant
AND:
ROBERT BURGOYNE

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 28 March 2003)

This is an appeal against the head sentence imposed on the appellant by a stipendiary magistrate sitting at Alice Springs.
On 18 July 2002, Timothy Clavell entered pleas of guilty to the following two sets of charges.
"File No. 20208511:
1.On the 31^st day of May 2002 at Tennant Creek in the Northern Territory of Australia, he unlawfully used a motor vehicle, namely, Toyota Landcruiser.
And that the said unlawful use involved the following circumstances of aggravation:
(i)the property unlawfully used was damaged by the said Tim Clavell and the cost of repairing/compensating for the same was $1,000.00 or more, namely, $6,538.00.
(ii)the property unlawfully used was of the value of greater than $20,000.00, namely, $60,000.00.
(iii)that as a result of the said unlawful use the whereabouts of the said Toyota Landcruiser remained unknown to the person entitled to lawful possession of the said Toyota Landcruiser, namely, William Slipper for longer than 48 hours, namely, 4 days;
Contrary to Section 218 of the Criminal Code.
2.On the 31^st day of May 2002 at Tennant Creek in the Northern Territory of Australia, he did have in his custody, personal property, namely Toyota Landcruiser and $331.55, which at the time before making the charge was reasonable (sic) suspected of having been stolen or otherwise unlawfully obtained;
Contrary to Section 61 of the Summary Offences Act.
3.On the 31^st day of May 2002 at Tennant Creek in the Northern Territory of Australia, he did, without lawful excuse, possess and carry a controlled weapon, namely a kitchen knife, in a public place;
Contrary to Section 7 of the Weapons Control Act.
4.On the 31^st day of May 2002 at Tennant Creek in the Northern Territory of Australia, he drove a motor vehicle, namely Toyota Landcruiser, on a public street, namely Paterson Street, whilst not being the holder of a licence to do so;
Contrary to Section 32(1)(a)(i) of the Traffic Act.
File No. 20208921:
1.Between the 7^th day of June 2002 and 8^th day of June 2002 at Alice Springs in the Northern Territory of Australia, he unlawfully used a motor vehicle, namely, Toyota Tarago.
And that the said unlawful use involved the following circumstance of aggravation:
(i)That the property unlawfully used was damaged by…

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 Clavell v Burgoyne

Details

AGLC: Clavell v Burgoyne [2003] NTSC 29
Case: [2003] NTSC 29
Decision Date: 28 March 2003

CaseChat Overview and Summary

The case of Clavell v Burgoyne [2003] NTSC 29 involved an appeal against the head sentence imposed on Timothy Clavell by a stipendiary magistrate. Clavell had entered pleas of guilty to various charges, including unlawful use of motor vehicles, possession of stolen property, carrying a weapon in public, and driving without a license. The appellant contested the severity of the sentence, arguing it was excessive given his mental health condition at the time of the offenses.

The court was required to decide whether the learned stipendiary magistrate had improperly exercised the sentencing discretion by failing to adequately consider Clavell's personal circumstances, particularly his mental state, and whether the magistrate had failed to apply the principle of totality correctly. The appeal hinged on whether the head sentence of 21 months was manifestly excessive, taking into account the seriousness of the offenses and Clavell's mental illness.

The court found that the magistrate had considered Clavell's mental condition, as evidenced by the extensive submissions and reports presented during sentencing. Although the magistrate's reasons could have been better expressed, the court was not persuaded that the magistrate had failed to take Clavell's circumstances into account. The court also noted that the magistrate had appropriately weighed the principle of general deterrence, moderated by the nature and severity of Clavell's symptoms and their effect on his mental capacity. The court concluded that the head sentence of 20 months was not manifestly excessive, and thus the appeal was dismissed.

The Supreme Court of the Northern Territory upheld the head sentence imposed by the stipendiary magistrate, affirming that the magistrate had properly exercised the sentencing discretion by considering the appellant's mental health and the principle of totality.

Orders