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Kilvington v Burgoyne [2005] NTSC 46

PARTIES: KILVINGTON, Kim Thomas

BURGOYNE, Robert Roland

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 38 of 2004 (20420025)

DELIVERED: 18 August 2005

HEARING DATE: 12 August 2005

JUDGMENT OF: RILEY J

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE

Appellant pleaded guilty to driving a motor vehicle whilst not being the holder of a licence contrary to s 32(1)(a) Traffic Act (NT) and driving an unregistered motor vehicle contrary to s 33(1)(a) Traffic Act (NT) – sentencing magistrate mistaken as to maximum penalty for the offence – whether penalty should be imposed without proceeding to conviction – s 8 Sentencing Act (NT) – despite significant matters of mitigation conviction is appropriate.

Traffic Act (NT) s 32, s 33

Sentencing Act (NT) s 6, s 8

The Queen v Raggett, Douglas and Miller (1990) 50 A Crim R 41, applied

Lowndes v The Queen (1999) 195 CLR 665 at 671-672, applied

Markarian v The Queen (2005) 215 ALR 213 at 222, considered.

Toohey v Peach (2004) 143 NTR 1 at 4, considered.

REPRESENTATION:

Counsel:

Appellant: C. McDonald QC

Respondent: J. Duguid

Solicitors:

Appellant: Salmon & Sinoch Lawyers

Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B

Judgment ID Number: ril0522

Number of pages: 10

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

AT DARWIN

Kilvington v Burgoyne [2005] NTSC 46

No JA 38 of 2004 (20420025)

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:

KILVINGTON, Kim Thomas

Appellant

AND:

BURGOYNE, Robert Roland

Respondent

CORAM: RILEY J

REASONS FOR JUDGMENT

(Delivered 18 August 2005)

1. On 19 October 2004 the appellant pleaded guilty to two offences under the Traffic Act. The first was that he drove a motor vehicle on a public street whilst not being the holder of a licence to do so, contrary to s 32(1)(a) of the Traffic Act, and, the second, that he drove an unregistered motor vehicle on a public street, contrary to s 33(1)(a) of the Traffic Act.

2. The offences arose out of events which occurred on 1 September 2004. On that day the appellant was driving a motor vehicle with Queensland registration along Bath Street in Alice Springs. He was stopped by police who noticed the Queensland registration. He stated that he was the owner of the vehicle and that he was now a permanent resident of the Northern Territory. When asked how long the vehicle had been in the Northern Territory he advised that it had been in the Territory since “before February”. When asked why he was driving the vehicle when it was deemed to be unregistered he said: “I wasn’t sure how long I was going to stay here”.

3. Upon request the appellant produced…

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.

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Details

Case: [2005] NTSC 46
Decision Date: 18 August 2005

CaseChat Overview and Summary

The Supreme Court of the Northern Territory was presented with an appeal against sentence brought by Kim Thomas Kilvington against Robert Roland Burgoyne. Kilvington had pleaded guilty to driving a motor vehicle while not holding a valid licence and to driving an unregistered vehicle on a public street, both offences under the Traffic Act. The sentencing magistrate had imposed a conviction and a fine of $500. Kilvington appealed on the basis that the maximum penalty for the offence was misunderstood by the magistrate, and that the conviction was inappropriate under the Sentencing Act.

The court was required to determine whether the sentencing magistrate had erred in his understanding of the maximum penalty for the offence and whether the conviction was appropriate under the circumstances. The court needed to consider the principles of sentencing and the factors relevant to deciding whether a conviction should be recorded.

The court found that the magistrate had indeed misunderstood the maximum penalty for the offence, which was $2200 rather than $10,000. This misunderstanding was a significant error that affected the sentence imposed. The court also considered the factors relevant to deciding whether a conviction should be recorded under the Sentencing Act. Although Kilvington was of good character with no prior convictions and the offence caused him personal embarrassment, the court found that the offence was not trivial and that general deterrence was necessary. The court concluded that despite the mitigating factors, a conviction was appropriate in the circumstances. The sentence was therefore varied to an aggregate fine of $300 with a victim levy of $80.

Orders