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Garnet Alan Dixon v Michael Mumu [2005] NTSC 55

PARTIES: Garnet Alan Dixon
v

Michael Mumu

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 22 of 2005, 20503528

DELIVERED: 15 September 2005

HEARING DATES: 8 September 2005

DECISION OF: OLSSON AJ

CATCHWORDS:

APPEAL

Justices - Crown appeal against sentence – custodial sentence and disqualification period in respect of repeat driving offences asserted to be manifestly inadequate - impugned penalties imposed at same time as sentence for property offences committed two months later - respondent committed serious entering and larceny offences between date of the driving offences and date of the property offences, but not sentenced until after impugned sentence and disqualification - substantial, partly suspended, custodial sentence imposed in respect of entering and larceny offences cumulative upon impugned sentence and that for property offences - principles related to Crown appeals - whether impugned sentence and period of disqualification shown to be manifestly inadequate - whether, in any event, any utility in adjusting impugned sentence - consideration of effect of subsequent unrelated custodial sentence and its partial suspension – whether exercise of discretion not to extend already lengthy pre-existing period of disqualification reasonably open to sentencing magistrate.

REPRESENTATION:

Counsel:
Appellant: R. Noble
Respondent: M. O’Reilly

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Central Australian Aboriginal Legal Aid Commission

Judgment category classification: B
Number of pages: 20
Judgment ID Number: Ols05004

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Garnet Alan Dixon v Michael Mumu [2005] NTSC 55
No JA 22 of 2005, 20503528

BETWEEN:

Garnet Alan Dixon
Appellant

AND:

Michael Mumu
Respondent

CORAM: OLSSON AJ

REASONS FOR DECISION

(Delivered 15 September 2005)

DIXON v MUMU

Introduction

[1] This is a Crown appeal against what is said to have been a manifestly inadequate sentence imposed by a stipendiary magistrate on the respondent on 12 April 2005.

[2] On that day the respondent appeared before the Court of Summary Jurisdiction at Alice Springs and pleaded guilty to one count of having driven a motor vehicle whilst disqualified and one count of having driven a motor vehicle while having a blood alcohol concentration of 173 mg of alcohol per hundred millilitres of blood ("the driving offences").

[3] He entered a plea of guilty to each charge.

[4] It should be noted that, on the same occasion, the respondent also pleaded guilty to quite unrelated charges of unlawful entry and criminal damage. He also admitted those offences ("the property offences").

[5] The driving offences occurred on 10 February 2005, whilst the property offences occurred some two months later, on 3 April 2005.

[6] The learned magistrate recorded convictions and aggregated penalty on the two driving counts. She sentenced the respondent to a period of one month imprisonment from 8 April 2005 and, on the second count, ordered 18 months licence disqualification, to run from…

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.

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Details

Case: [2005] NTSC 55
Decision Date: 15 September 2005

CaseChat Overview and Summary

The appeal, brought by the appellant, Garnet Alan Dixon, against the sentence imposed by the respondent, Michael Mumu, focuses on the custodial sentence and the period of disqualification for driving offences that were deemed to be manifestly inadequate. The respondent pleaded guilty to driving while disqualified and driving with a high blood alcohol concentration. He also pleaded guilty to separate property offences. The sentencing for these offences occurred over time, with the driving offences being sentenced first, followed by the property offences and later, the March offences. The appeal specifically targets the one-month imprisonment and 18-month disqualification period for the driving offences, arguing that these were inadequate considering the respondent’s extensive history of similar offences and his flagrant disregard for court orders.

The court had to determine whether the sentence and disqualification period were manifestly inadequate and if there was any utility in adjusting the sentence given the subsequent sentences imposed for the March offences. The Crown argued that the sentence did not adequately reflect the gravity of the respondent’s persistent offending, while the respondent’s counsel contended that the sentence, when considered in the context of the total sentencing exercise, was within the range of reasonable outcomes.

The court concluded that while the sentence and disqualification were lenient, the imposition of a later sentence for the March offences meant that the total effective sentence was not manifestly inadequate. The court also noted that the magistrate had discretion in setting the disqualification period and had reasonably chosen not to extend an already lengthy disqualification. Consequently, the appeal against both the custodial sentence and the disqualification period was dismissed.

Orders