Kelly v Winzar - [2006] NTSC 59

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 SPRINGS
Kelly 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…

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 Kelly v Winzar

Details

AGLC: Kelly v Winzar [2006] NTSC 59
Case: [2006] NTSC 59
Decision Date: 3 August 2006

CaseChat Overview and Summary

In Kelly v Winzar, the appellant contested the sentence imposed by the Magistrates Court, arguing that it was manifestly excessive and did not sufficiently account for his rehabilitation and personal mitigating factors. The Supreme Court of the Northern Territory was tasked with reviewing the sentence to determine whether it adhered to the totality principle and whether the original court had given adequate consideration to the appellant's rehabilitative efforts and personal circumstances.

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