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Hales v Garbe

Hales v Garbe

Case [2000] NTSC 49 30 June 2000

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Hales v Garbe [2000] NTSC 49
PARTIES:HALES, Peter William
v

GARBE, Andrew Robert

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 1 of 2000
DELIVERED:  30 June 2000
HEARING DATES:  22 May 2000
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

CRIMINAL LAW
Appeal against sentence – driving whilst disqualified - whether manifestly inadequate.
Appeal by prosecutor – whether exceptional circumstance so as to put contentions that were not in the Court of Summary Jurisdiction.
R v Wilton (1981) 28 SASR 362 and 367-368, applied.
Everett v The Queen (1994) 181 CLR 295 at 302, referred to.
Ebateringa v Boldiston (1988) 8 MVR 413, applied.
Oldfield v Chute (1992) 107 FLR 413, applied.
Arnold v Trenerry (1997) 118 NTR 1, referred to.
Johnston v Wilkinson (1983) 11 A Crim R 140, applied.
Appeal – general principles – interference with discretion of Court Below
R v Nagas (1995) 5 NTLR 45 at 52, referred to.
R v Ah Sam unreported, 15 March 1995, applied.
Traffic Act 1949 (NT), s 16(2)(b), s 31, s 39, s 40 and Sch I
Sentencing Act 1995 (NT), s 18
REPRESENTATION:
Counsel:
Appellant:I Rowbottam
Respondent:  D Elliot
Solicitors:
Appellant:DPP
Respondent:  Diana Elliot
Judgment category classification:      B
Judgment ID Number:  mar20013
Number of pages:  9

Mar20013
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hales v Garbe [2000] NTSC 49
No. JA 1 of 2000

BETWEEN:
PETER WILLIAM HALES

Appellant
AND:
ANDREW ROBERT GARBE

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 30 June 2000)

Appeal by the prosecutor against the sentence imposed on the respondent in the Court of Summary Jurisdiction sitting at Darwin on 14 December 1999. On that occasion the respondent pleaded guilty for that on 30 October 1999 he drove a motor vehicle upon a public street whilst having a concentration of alcohol in his blood of 134 milligrams of alcohol per 100 millilitres of blood (.134%), and further, that he was then disqualified from holding a driver’s licence.

The maximum penalties for those offences are, for exceeding .08, $2,000 or imprisonment for 12 months, this being the respondent’s second conviction for such an offence, and for driving whilst disqualified, 12 months imprisonment or a fine of $2,000 (Sentencing Act 1995 (NT), s 16(2)(b)).
A finding of guilt of a second offence of driving with a concentration of alcohol in the blood of .08 or more, but less than .15, carries with it automatic disqualification from holding a licence for a period of 12 months by operation of the statute (Traffic Act 1949 (NT), s 39, s 40 and Schedule 1). Where a disqualified driver is found guilty of driving a motor vehicle on a public street, the court may disqualify the person from holding a licence for such further period as it thinks fit (s 31). That is, a further period than the period of disqualification previously imposed.
The facts in this case, as accepted…

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 Hales v Garbe

Details

AGLC: Hales v Garbe [2000] NTSC 49
Case: [2000] NTSC 49
Decision Date: 30 June 2000

CaseChat Overview and Summary

The appellant, Hales, appealed against a sentence imposed for driving while disqualified, arguing that it was manifestly inadequate. The respondent, Garbe, is the prosecutor who appealed to the court, seeking to have contentions considered that had not been presented in the Court of Summary Jurisdiction. The court was tasked with determining whether the sentence was manifestly inadequate and if the prosecutor's appeal was valid under the circumstances. The central legal issues revolved around the appropriate sentence for the offence of driving while disqualified and the procedural correctness of the prosecutor's appeal. The court examined whether the sentence was manifestly inadequate, considering the gravity of the offence and the appellant's history. Additionally, the court assessed if there were exceptional circumstances justifying the prosecutor's appeal, which included the contentions not raised in the Court of Summary Jurisdiction.

The court found that the sentence imposed was not manifestly inadequate, acknowledging the seriousness of the offence but also considering the appellant's previous history and the discretion of the sentencing judge. The court emphasised the importance of proportionality and the need to balance the deterrent effect with the individual circumstances of the offender. Regarding the prosecutor's appeal, the court determined that there were no exceptional circumstances that would allow the introduction of new contentions. The court upheld the original findings, concluding that the procedural rules regarding the raising of contentions in the Court of Summary Jurisdiction were correctly followed, and no exceptional circumstances were present to warrant a departure from these rules.

In conclusion, the court dismissed both the appellant's and the prosecutor's appeals. The sentence for driving while disqualified was deemed appropriate, and the prosecutor's attempt to introduce new contentions was not permitted due to the absence of exceptional circumstances. The court's decision underscores the importance of adhering to procedural rules and the need for sentences to be both fair and proportionate to the offence committed.

Orders