Drewitt v Firth - [2019] NTSC 66

CITATION:Drewitt v Firth [2019] NTSC 66
PARTIES:DREWITT, John James

v
FIRTH, Justin Anthony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 23 of 2019 (21836477)
DELIVERED:  23 August 2019
HEARING:23 August 2019
JUDGMENT OF:  Riley AJ

REPRESENTATION:
Counsel:
Appellant:S McMaster
Respondent:  M Seiler
Solicitors:
Appellant:Maleys
Respondent:  Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ril1903
Number of pages:  4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Drewitt v Firth [2019] NTSC 66

No. LCA 23 of 2019 (21836477)

BETWEEN:

JOHN JAMES DREWITT

Appellant

AND:

JUSTIN ANTHONY FIRTH

Respondent

CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered 23 August 2019)

On 25 October 2018 the appellant pleaded guilty in the Local Court sitting at Darwin to having driven a motor vehicle on a public road with a medium-range breath alcohol content, namely 0.086 g of alcohol per 210 litres of exhaled breath. He was convicted and fined $500 and ordered to pay the appropriate levy. His license to drive was disqualified for a period of 12 months and it was directed that an alcohol ignition interlock order be in place for a further 12 months.
The circumstances of the offending were not in dispute. The appellant had been drinking at the Humpty Doo Hotel before driving home. Police conducted a road side breath test on the appellant which produced the result to which he has pleaded guilty.
The criminal history of the appellant was placed before the Local Court Judge and included a conviction from 22 August 1991 for “exceed .08” that is driving with a concentration of alcohol in his blood equal to 80 mg or more of alcohol per 100 ml of blood, namely 0.117%.
In sentencing the appellant the Local Judge remarked:
It was a lapse of judgment on your part this time and obviously those four beers that you had are too many for the present purposes and I note that prior conviction, although it is 27 years ago, it still triggers the alcohol ignition interlock legislation.
…
You are disqualified for 12 months which is the minimum period for a second offence and thereafter a further 12 months on an alcohol ignition interlock.
It is readily apparent that the Local Court Judge regarded the 1991 offence as a prior conviction for the purposes of the Traffic Act and applied the mandatory minimum period of disqualification applicable to a “second or subsequent offence” in accordance with s 22(3)(b) of that Act.
The appellant appeals on the sole ground that, in so doing, the Judge failed to apply the law as stated by the Full Court of the Supreme Court of the Northern Territory in Jeffrey v Rigby[1] which led to “a manifestly excessive mandatory disqualification period.” Of course, the decision of the Full Court is binding on both the Local Court and upon this Court.
Section 22(1) of the Traffic Act creates the offence of driving with…

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 Drewitt v Firth

Details

AGLC: Drewitt v Firth [2019] NTSC 66
Case: [2019] NTSC 66
Decision Date: 23 August 2019

CaseChat Overview and Summary

In this case, John James Drewitt appealed a conviction and sentence imposed on him by the Local Court of the Northern Territory. Drewitt had been found guilty of driving a motor vehicle on a public road with a medium-range breath alcohol content, specifically 0.086 grams of alcohol per 210 litres of exhaled breath. As a result of his conviction, Drewitt was fined, his driving license was disqualified for 12 months, and he was ordered to have an alcohol ignition interlock installed in his vehicle for a further 12 months. Drewitt's appeal was based on the contention that the Local Court had erred in considering a prior conviction from 1991 as a relevant prior conviction for the purposes of the Traffic Act, and thus applied a mandatory minimum disqualification period for a second or subsequent offence.

The primary legal issue in this appeal was whether the Local Court Judge had correctly identified and applied the relevant prior conviction in determining the appropriate sentence. Drewitt argued that the Local Court had misapplied the law as it was stated in the Full Court decision of Jeffrey v Rigby, which held that a prior conviction under the Traffic Ordinance could not be considered a relevant prior conviction for the purposes of the Traffic Act. The appellant contended that, in light of this decision, the Local Court should not have imposed a mandatory minimum disqualification period.

Riley AJ, in delivering the judgment, agreed with Drewitt that the Local Court had erred in considering the 1991 conviction as a relevant prior conviction. The court found that the Full Court's decision in Jeffrey v Rigby was binding on both the Local Court and the Supreme Court, and that the reasoning in that case was directly applicable to the present matter. The court held that the Local Court should not have regarded itself as bound by the mandatory minimum period contained in s 22(3)(b) of the Traffic Act, as the 1991 conviction did not qualify as a relevant prior conviction for the purposes of that section. Consequently, the sentence imposed by the Local Court was set aside.

As a result of the appeal, the conviction stands, but the sentence imposed by the Local Court is quashed. The matter will be remitted to the Local Court for re-sentencing in accordance with the correct legal principles.

Orders