Club v Westphal - [2010] NTSC 66

Club v Westphal [2010] NTSC 66

PARTIES:   CLUB, Martin
v
WESTPHAL, Lindsay
TITLE OF COURT:   SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE
TERRITORY EXERCISING
APPELLATE JURISDICTION
FILE NO:   JA 19 of 2010 (21025545)
DELIVERED:   2 December 2010
HEARING DATES:   18 November 2010
JUDGMENT OF:   BLOKLAND J
APPEAL FROM:   Mr Neill SM
CATCHWORDS:
CRIMINAL LAW – SENTENCING – ROAD TRAFFIC OFFENCES – An
appeal against sentence by Stipendiary Magistrate of term of imprisonment
for 14 days suspended forthwith for driving unlicensed – sentence
manifestly excessive – appeal allowed.
House v The King (1936) 55 CLR 499; Lucy Long v Lindsay Westphal
[2010] NTSC 55; Peter Michael v Donald Eaton [2010] NTSC 56; R v
Ragget (1991) 50 A Crim R 41.
REPRESENTATION:
Counsel:

Appellant:   M O’Reilly
Respondent:   I McMinn
Solicitors:

Appellant:   Central Australian Aboriginal Legal Aid
Service
Respondent:   Office of the Director of Public
Prosecutions
Judgment category classification: C

Judgment ID Number:   BLO 1009
Number of pages:   8
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Club v Westphal [2010] NTSC 66
No. JA 19 of 2010 (21025545)
BETWEEN:
MARTIN CLUB
Appellant

AND:
LINDSAY WESTPHAL
Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 2 December 2010)

Introduction

This is an appeal against a sentence made on 3 August 2010 in the Court of
Summary Jurisdiction. The Appellant pleaded guilty to one count of drive
unlicensed. The sole ground of appeal is that the sentence of 14 days
imprisonment, suspended forthwith was manifestly excessive in all the
circumstances. The appellant had five prior convictions for driving
unlicensed. At the same time, he was dealt with for driving with a
prescribed level (.130) of alcohol in his blood.
The Respondent concedes the sentence for driving unlicensed was
manifestly excessive in all of the circumstances. A sentence is a

discretionary order and will not be interfered with unless error is shown in
the sense discussed in well known authorities. 1
Proceedings before the Court of Summary Jurisdiction

On the facts before the Court of Summary Jurisdiction the Appellant was
found to be driving unlicensed by a police computer check being made at a
roadside breath test station where he had submitted to a random breath test.
The breath test measured .130 blood alcohol reading. The Appellant
remained in custody overnight and pleaded guilty the next day in the Court
of Summary Jurisdiction.
Clearly the learned Magistrate was troubled by the five previous convictions
for drive unlicensed. No criticism could be made because of that. The
Appellant received fines on all of those occasions. The last of the previous
convictions was recorded on 23 March 2007 for offending that occurred in
2006, approximately four years prior the current offending. On that
occasion he was fined $200.
In submissions before the learned Magistrate counsel told His Honour the
Appellant was from “out bush”, namely Alpara community; he came to Alice
Springs with his wife and family to shop for clothes; while in town…

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 Club v Westphal

Details

AGLC: Club v Westphal [2010] NTSC 66
Case: [2010] NTSC 66
Decision Date: 02/12/2010

CaseChat Overview and Summary

The appellant, Martin Club, appealed against a sentence imposed by the Stipendiary Magistrate in the Court of Summary Jurisdiction. The appellant had pleaded guilty to driving unlicensed. The appeal was limited to the sentence of 14 days imprisonment, suspended forthwith, being manifestly excessive. The respondent conceded that the sentence was manifestly excessive. The court held that while imprisonment was rarely imposed for driving unlicensed, it was not outside the range of penalties available for the offence. However, considering the appellant's history, the period of non-offending, and the sentencing standards in Alice Springs, the court found the term of imprisonment was manifestly excessive. The appeal was allowed, and the sentence was quashed. The court imposed a fine of $400 and a victim’s levy of $40.

Orders