Harvey v Burgoyne - [2004] NTSC 13

Harvey v Burgoyne [2004] NTSC 13
PARTIES:HENRY HARVEY

v
ROBERT ROLAND BURGOYNE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 44 of 2003 (20202546)
DELIVERED:  31 March 2004
HEARING DATES:  31 March 2004
EXTEMPORE DECISION OF:        RILEY J
REPRESENTATION:
Counsel:
Appellant:A. Hopkins
Respondent:  R. Noble
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment ID Number:  ril0404
Number of pages:  6

ril0404
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Harvey v Burgoyne [2004] NTSC 13
No JA 44 of 2003 (20202546)
IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

BETWEEN:

HENRY HARVEY

Appellant

AND:

ROBERT ROLAND BURGOYNE

Respondent

CORAM: RILEY J
EXTEMPORE
REASONS FOR DECISION
(Delivered 31 March 2004)

On 12 September 2003 the appellant pleaded guilty to having driven with a blood alcohol concentration exceeding 0.08%. His reading was an unusually high 0.350%. He was sentenced to imprisonment for a period of 6 months suspended after 1 month with an operative period of 2 years. The appellant was also disqualified from holding or obtaining a driver’s licence for a period of 4 years.

In sentencing the appellant, his Worship made the following remarks:
“The circumstances are that he was driving along Telegraph Terrace, one of the busier thoroughfares in Alice Springs at peak period time, 6 o’clock in the evening in heavy traffic. His condition was that he was dribbling. He was so drunk, he was dribbling.
He had difficulty keeping his eyes open. He had difficulty in sitting upright in the motor vehicle. That was a measure of his intoxication and that was confirmed by the fact that he had a blood alcohol level of 0.35%. The defendant’s aged about 39. Lived in Alice Springs for 20 years. Comes from a long way away. I am told he was born on Camooweal and lived his early life in Borroloola.
Married a local lady from Amaroo and they have settled in Alice Springs, at the time of this offence living in the Hidden Valley Camp with relatives. I am told and I accept that the defendant was placed under undue pressure to drive (the) motor vehicle by a brother-in-law. He initially resisted the pressure but ultimately gave in to it.
And by doing that he put someone else who is minded to use the roads in Alice Springs at that time in jeopardy. Serious, serious jeopardy. It is a case that anyone with a blood alcohol level of 0.3 or above must expect to go to gaol even for a first offence and this is the case here. And I take into account the defendant has no prior convictions for drink driving.”
The appellant appeals on the following grounds:
1.the sentence was manifestly excessive in all the circumstances;
2.the learned Deputy Chief Magistrate erred in placing undue weight on the blood alcohol reading of the defendant and misdirected himself as to the sentencing options available as a consequence of that reading;
3.that the learned Deputy Chief Magistrate erred in that he gave no indication he was considering imprisonment and did not afford counsel an opportunity to make further submissions as to other possible dispositions.
The general principles applicable to an appeal against sentence are well known. The presumption is that there is no error in the sentence and an appellant must demonstrate that error occurred in that the learned sentencing magistrate acted on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the facts: The Queen v Raggett (1990) 50 A Crim R 41. In applying these principles to submissions that a sentence is manifestly excessive, it is for the appellant to show that the nature of the sentence itself affords convincing evidence that in some way the exercise of the discretionary sentencing power was unsound. To do so, he must show that the sentence was clearly and obviously, and not just arguably, excessive: Cranssen v The King (1936) 55 CLR 509 at 520.
In support of the ground of appeal that the sentence was manifestly excessive, the appellant provided a schedule of some 50 matters heard in the Court of Summary Jurisdiction in the period August, September and October 2003. All of the offences were for readings described as “high reading offences”, being where the blood alcohol content was 150 milligrams or more of alcohol per 100 millilitres of blood. That is, 0.150% or more. None of the readings in the schedule reached the reading that applied to the appellant, that being 0.350%. The readings ranged from 0.151% to 0.274%. In many of the cases in the schedule the offender had prior convictions. In one instance an offender was sentenced to home detention, in another to a community work order and in yet another a sentence of 21 days imprisonment fully suspended for a sixth offence. In all other cases the offender was fined between $100 and $1200. In no case was an offender sentenced to an actual term of imprisonment. The schedule demonstrated that no first offender had received a sentence other than a fine. For those who were dealt with by punishment other than a fine, they had each had 3 or more previous similar findings of guilt.
The appellant in the present matter submitted that the sentence of 6 months imprisonment suspended after 1 month was outside the ordinary range of sentences for like offending and that manifest excess was therefore demonstrated.
Information provided to his Worship included that the appellant came to Alice Springs in his early 20s from Borroloola. He is now 37 years of age and he had been living with his wife, children and members of the family of his wife at a camp in Alice Springs. He was an alcoholic and had spent time in hospital as a consequence of health problems related to his excessive alcohol consumption. On the night of the offence he had spent the night in the sobering-up shelter and then had resumed drinking with family members at the camp. He was asked by his brother-in-law to purchase more alcohol and, whilst he initially refused, he eventually proceeded to drive to purchase the alcohol at the insistence of others. It was put to his Worship that the appellant was concerned that a violent incident might otherwise result. He was apprehended at a roadside breath-test station. It is not suggested that his driving attracted any attention from the authorities.
Since his arrest the appellant has moved away from the camp and lives with his wife and children in another part of Alice Springs. He has ceased, or at least significantly reduced, his consumption of alcohol in accordance with medical directions. His Worship was told that the appellant had been employed in the past but was then on a government pension.
In my view, his Worship was clearly justified in regarding the offending on this occasion as being serious. The blood alcohol level was exceptional. The condition of the appellant when driving was unfortunate, to say the least. However, by reference to the schedule produced by the appellant, which schedule is not challenged by the respondent, it can be seen that the penalty imposed by his Worship is outside the ordinary range of sentences for like offending.
The Crown concedes that by reference to the schedule the penalty imposed by his Worship must be seen as being manifestly excessive. Although the blood alcohol reading was exceptionally high, it is not so high as to remove the offending from the range of offences described as “high reading offences”. In my view, the reading does not warrant the observation that such offending must result in a gaol term. This is especially so for a first offender.
In this case not only was a gaol term imposed but a substantial gaol term was imposed. In the circumstances I regard the concession made by the Crown as having been appropriately made. I regard the sentence imposed by his Worship as being manifestly excessive. The appeal is allowed. The sentence is set aside.
I am told that there is fresh evidence that is to be sought to be introduced for the purposes of re-sentencing. It will also be necessary for counsel for the appellant to obtain instructions in relation to penalties other than a fine in order that submissions can be made in relation to an appropriate sentence. In those circumstances I regard it as desirable that the matter be referred back to his Worship for re-sentencing.

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