Kelly v Winzar [2006] NTSC 59
PARTIES:KELLY, Keith
v
WINZAR, Kevin David
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 8 of 2006 (20607311)
DELIVERED: 3 August 2006
HEARING DATE: 20 July 2006
JUDGMENT OF: Olsson AJ
APPEAL FROM: Court of Summary Jurisdiction sentence, Mr J Birch SM, 21 March 2006
CATCHWORDS:
APPEAL – JUSTICES
Appeal against sentence – whether sentence manifestly excessive – whether sufficient weight given to appellant’s rehabilitation and personal mitigatory factors – whether sentence offended totality principle –
Appeal allowed
Appellant re sentenced
Robertson v Finn (unreported, Supreme Court of the Northern Territory, 24 May 2006), followed
Campbell v Meredith [2005] NTSC 13, followed
Stanischewski v Trenerry [2001] NTSC 50, followed
R v Egan (SCC 20529705, 10 February 2006), distinguished
Janima and Edginton (unreported, Supreme Court of the Northern Territory, 28 August 1995), followed
R v Mills [1998] 4 VR 235, distinguished
R v CJP& Ors [2003] NSWCCA 187, referred to
R v Pitt [2001] NSWCCA 156, referred to
Justices Act (NT)
Traffic Act (NT) s 19(2), 31(1)
REPRESENTATION:
Counsel:
Appellant:M Spiers
Respondent: C Roberts
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Ols0608
Number of pages: 7
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSKelly v Winzar [2006] NTSC 59
JA 8 of 2006 (20607311)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:
KELLY, Keith
Appellant
AND:
WINZAR, Kevin David
Respondent
CORAM: Olsson AJ
REASONS FOR JUDGMENT
Background
This is an appeal against a sentence imposed by a stipendiary magistrate consequent upon the appellant entering pleas of guilty to charges that on 9 March 2006 at Alice Springs he drove a motor vehicle, namely a Ford Falcon, on a public street while having a concentration of alcohol in his blood amounting to 203 mg per hundred millilitres of blood and that, on the same occasion, he also drove the motor vehicle on a public street whilst disqualified from holding a driver's licence.
Convictions were recorded in respect of the two offences and the learned magistrate imposed a single aggregate sentence of four months imprisonment. He ordered that this be suspended after service of one month, with an operative period of 14 months. The appellant was also disqualified from driving for a period of five years expiring on 10 March 2011.
The appellant complains that the sentence imposed was manifestly excessive in all the circumstances.
The relevant facts
At about 2355 hours on 9 March 2006 the appellant was driving a white Ford Falcon sedan in a westerly direction on Tietkens Avenue, Alice Springs. He was stopped by police opposite the North Side Foodland and subjected to a roadside breath test, which proved positive. He was then…
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- Kelly v Winzar [2006] NTSC 59
- Case
- [2006] NTSC 59
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentence was manifestly excessive and whether the court had properly considered the totality principle, including the appellant's rehabilitation and personal mitigating factors. The court also had to examine whether the original sentencing court had erred in failing to give sufficient weight to these factors. The appeal hinged on the interpretation and application of relevant statutes and precedents, specifically the Justices Act (NT) and the Traffic Act (NT).
The Supreme Court determined that the sentence imposed was indeed manifestly excessive and that the original court had not adequately considered the totality principle, particularly the appellant's rehabilitation and personal mitigatory factors. The court found that the original sentence did not align with established legal principles, which require a balanced approach considering all relevant mitigating and aggravating factors. By applying the principles from Robertson v Finn, Campbell v Meredith, and Stanischewski v Trenerry, the court concluded that the sentence was disproportionate and failed to adhere to the totality principle. Consequently, the appeal was allowed, and the appellant was re-sentenced.
The final orders of the court involved allowing the appeal and re-sentencing the appellant in accordance with the principles discussed. The court emphasised the importance of considering all mitigating and aggravating factors in sentencing, ensuring that the sentence imposed is just and proportionate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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