Davis v Howley - [2003] NTSC 6

Davis v Howley [2003] NTSC 6
PARTIES:STUART AXTELL DAVIS

v
RACHEL JANE HOWLEY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA 4/2002 (20119189)
DELIVERED:  25 February 2003
HEARING DATES:  20 January 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL - JUSTICES -Appeal against sentence - drive exceed 0.08% - interpretation of s 39(1)(e) of the Traffic Act 1999 (NT) - whether the offence against s 19(2) was a ‘subsequent offence’ for the purposes of s 39(1)(e) - whether sentence manifestly inadequate - Justices Act 1928 (NT)
Traffic Act 1999 (NT), s 19(2), s 32(1)(a)(i), s 39, s 49
Traffic Regulations 1999 (NT), s 9
Sentencing Act 2002 (NT), s 78A
Jonathan Patterson v Robert Materna [1996] NTSC 64, Schluter v Trenerry (1997) 117 NTR 6, Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25, Collman v Territory Insurance Office [2002] NTSC 8, Rivera v Maher (1992) 17 MVR 370, applied.
Ragett, Douglas & Miller (1990) 50 A Crim R 41, R v Nagas (1995) 5 NTLR 45, R v Tait (1978) 46 FLR 386, Everett v R and Phillips v R (1994) 124 ALR 529, referred to.
REPRESENTATION:
Counsel:
Appellant:A. Elliott
Respondent:  S. Cox
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:        C
Judgment ID Number:  tho200302
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Davis v Howley [2003] NTSC 6
No. JA4/02 (20119189)

BETWEEN:
STUART AXTELL DAVIS

Appellant
AND:
RACHEL JANE HOWLEY

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 25 February 2003)

This is a Crown appeal from a decision of a stipendiary magistrate with respect to the interpretation of s 39(1)(e) of the Traffic Act and subsequent orders made by the learned stipendiary magistrate on 10 December 2001.
The charges faced by the respondent in the Court of Summary Jurisdiction, a chronology of the respondent’s history of offences under the Traffic Act and the sentence imposed by the learned stipendiary magistrate have all been very usefully summarised by Mr Elliott counsel for the appellant in his written Outline of Submissions:
“1. The Respondent faced two sets of charges, both of which were dealt with by His Worship Mr. McGregor SM on 10 December, 2001:
Charges for Case No. 9900031
1.On the 1^st day of January 1999 at Palmerston in the Northern Territory of Australia drove a motor vehicle, namely Toyota sedan NT 472-302, on a public street, namely Stuart Highway, while having a concentration of alcohol in your blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely, 90 milligrams of alcohol.
Contrary to Section 19(2) of the Traffic Act.
Charges for Case No. 20119189
1.On the 8^th day of December 2001 at Humpty Doo in the Northern Territory of Australia drove a motor vehicle, namely Toyota Hilux NT 598-253, on a public street, namely…

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 Davis v Howley

Details

AGLC: Davis v Howley [2003] NTSC 6
Case: [2003] NTSC 6
Decision Date: 25 February 2003

CaseChat Overview and Summary

The appeal in Davis v Howley was brought by the appellant, Stuart Axtell Davis, against a decision of a Stipendiary Magistrate in the Court of Summary Jurisdiction regarding the interpretation of section 39(1)(e) of the Traffic Act and the subsequent orders made. The respondent, Rachel Jane Howley, faced charges for driving with an alcohol concentration in her blood of 80 milligrams or more of alcohol per 100 millilitres of blood on two separate occasions, and for driving without a license. The court had to decide whether the learned Stipendiary Magistrate erred in law in imposing a 2 years and 6 months disqualification for the offence committed on 8 December 2001 and whether the total period of disqualification was manifestly inadequate. The court found that the principle established in Schluter v Trenerry (1997) 117 NTR 6 and Rivera v Maher (1992) 17 MVR 370 applied well-established principles and that the respondent had not prior to 10 December 2001, been through the process of conviction and sentence for the offence that was committed on 1 January 1999. The appeal was dismissed as the court was not able to conclude that the period of disqualification was manifestly inadequate.

Orders