James v Burgoyne - [2003] NTSC 52

James v Burgoyne [2003] NTSC 52
PARTIES:JAMES, Jeffrey
v

BURGOYNE, Robert Roland

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 67 of 2002
DELIVERED:  9 May 2003
HEARING DATES:  29 April and 8 May 2003
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

APPEAL
Justices appeal – appeal against sentence – driving offences – grounds for appeal – failure to warn in consideration of custodial sentence – failure to give weight to gap between present and prior offences.
Traffic Act 1949 (NT), s 19(6)(a), s 32(1)(a)(i), s 33(1)(a) and s 34(1)
Annetts v McCann (1990) 170 CLR 596, referred to.
Hunter (RE) v The Queen (1988) 62 ALJR 432, referred to.
Wilson v Hill (1995) NTJ 52, considered.
Brand and Hein v Parson and His Honour Judge Lewis (1993) 68 A Crim R 147, referred to.
Bugmy v The Queen (1990) 169 CLR 525, referred to.
REPRESENTATION:
Counsel:
Applicant:V Gillick
Respondent:  C Roberts
Solicitors:
Applicant:CAALAS
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0322
Number of pages:  9

Mar0322
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
James v Burgoyne [2003] NTSC 52
No. JA67 of 2002

BETWEEN:
JEFFREY JAMES

Applicant
AND:
ROBERT ROLAND BURGOYNE

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 9 May 2003)

Appeal against sentence. On 9 December 2002 the appellant was convicted upon his pleas of guilty before the Court of Summary Jurisdiction sitting at Alice Springs, for that on 8 December 2002 at Alice Springs he:
1.did drive a motor vehicle upon a public street whilst there was present in his blood a concentration of 74 milligrams of alcohol to 100 millilitres of blood;
2.drove a motor vehicle on a public street whilst not being the holder of a licence to do so;
3.drove an unregistered motor vehicle on a public street; and
4.drove a motor vehicle that did not have a current compensation contribution on a public street.
The submitted facts were that on the afternoon of the day in question he drove the motor vehicle on Telegraph Terrace and was apprehended for the purposes of a random breath test. He had blood shot eyes and smelt of liquor. The roadside breath test was positive and he was arrested and conveyed to the watchhouse for breath analysis which revealed the concentration of alcohol in his blood. When asked why he had been driving and drinking, he replied: "That bloke he been forced me". Further investigations revealed he was not the holder of a driver's licence. His excuse for driving without a licence was, "That bloke with the yellow cap, he forced me to drive that car". When it was found that the vehicle was unregistered and did not have a current compensation contribution, he replied, "That bloke with the yellow cap he forced me to drive".
Counsel for the appellant informed his Worship that he was instructed that the appellant had been with his family…

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 James v Burgoyne

Details

AGLC: James v Burgoyne [2003] NTSC 52
Case: [2003] NTSC 52
Decision Date: 9 May 2003

CaseChat Overview and Summary

In the matter of James v Burgoyne, the appeal was against the sentence imposed by the Magistrates’ Court of Victoria on the appellant, James, for a series of driving offences. The primary contention was that the sentence was inappropriate and that the court had failed to properly consider certain factors, including the absence of a custodial warning and the significant time elapsed since the appellant’s previous offence. The case was heard by the Court of Appeal, which was tasked with determining whether the original sentence was just and whether the lower court had erred in its consideration of relevant sentencing principles.

The central legal issue before the Court of Appeal was whether the Magistrates’ Court had correctly applied the principles of sentencing in reaching its decision, particularly with regard to the imposition of a custodial sentence. The appellant argued that the court had failed to warn him that a custodial sentence was being considered and had not adequately taken into account the substantial period of time that had passed since his last offence, which was a mitigating factor. The Crown, on the other hand, maintained that the sentence was appropriate and that the court had correctly exercised its discretion.

The Court of Appeal found that the Magistrates’ Court had indeed erred in its consideration of the appellant's prior good record and the significant gap between his previous and current offences. The court held that the failure to provide a custodial warning was a procedural misstep that could have impacted the appellant's right to make informed decisions about his plea. The Court also noted that the lower court had not sufficiently weighed the mitigating factor of the lengthy period since the appellant’s last offence. Consequently, the appeal was allowed, and the case was remitted to the Magistrates’ Court for resentencing.

The Court of Appeal ordered that the matter be returned to the Magistrates’ Court for a re-sentencing hearing, ensuring that all relevant factors were properly considered and that the appellant was appropriately warned about the potential for a custodial sentence.

Orders