Kunoth v Burgoyne - [2004] NTSC 42

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PARTIES: DESMOND KUNOTH

ROBERT ROLAND BURGOYNE

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NOS: JA10/04, JA11/04, JA12/04, JA13/04 & JA14/04 (9926652, 20102184, 20307736, 20406773 and 20407336)

DELIVERED: 12 August 2004

HEARING DATES: 18 June 2004

JUDGMENT OF: THOMAS J

CATCHWORDS:

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 category classification: C
Judgment ID Number: tho200408
Number of pages: 9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Kunoth v Burgoyne [2004] NTSC 42
Nos. JA10/04, JA11/04, JA12/04, JA13/04 and JA14/04 (9926652, 20102184, 20307736, 20406773 and 20407336)

BETWEEN:

DESMOND KUNOTH
Appellant

AND:

ROBERT ROLAND BURGOYNE
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 12 August 2004)

[1] This is an appeal from a sentence imposed by a stipendiary magistrate in Alice Springs on 2 April 2004.
[2] On this date the appellant was convicted and sentenced to four months imprisonment for the offences of driving whilst disqualified and exceeding the speed limit, committed on 20 March 2004 (file 20406773).
[3] The agreed facts as recounted by the prosecutor in the Court of Summary Jurisdiction are (tp 2):
“… about 4 in the afternoon, Saturday, 20 March this year, the defendant was driving a Toyota Camry on the Lasseter Highway from Mutitjulu towards Yulara. On the Lasseter Highway just inbound from the National Park entrance the defendant’s vehicle was detected by police radar travelling at a speed of 103 kilometres per hour.
This particular section of the Lasseter Highway is sign-posted at 80 kilometres per hour. He was apprehended and asked if he had a driver’s licence. He said, ‘No, I lost it drinking and driving in Alice Springs’. Police inquiries showed that the defendant was disqualified from driving a motor vehicle. He was arrested and taken to the police station.
Those further inquiries showed that he was disqualified from 10 October 2002 for a period of 2 years. He didn’t give a reason for driving disqualified or exceeding the speed limit. At the time of the offence the Lasseter Highway was a public road open to the public. There was one adult passenger in the vehicle at the time.”
[4] On 2 April 2004, the appellant was further convicted and sentenced to six months imprisonment for the offences of aggravated assault and five months aggregate for the offences of driving whilst disqualified and drink driving. These offences occurred on 28 March 2004 (file 20407336).
[5] On this latter file the sentences are concurrent, and two months of the total six months sentence is to be served concurrent with the sentence on 20406773, making a total of eight months imprisonment.
[6] The facts in respect of the offences committed on 28 March 2004 as related by the prosecutor in the Court of…

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 Kunoth v Burgoyne

Details

AGLC: Kunoth v Burgoyne [2004] NTSC 042
Case: [2004] NTSC 42
Decision Date: 12/08/2004

CaseChat Overview and Summary

Desmond Kunoth appealed against his conviction and sentencing by a stipendiary magistrate for various driving and assault offences. Kunoth was convicted of driving while disqualified and speeding on 20 March 2004 and of aggravated assault, driving while disqualified, and drink driving on 28 March 2004. He was also in breach of three suspended sentences from previous convictions. The appeal was on the grounds that the magistrate failed to take into account the totality principle of sentencing, did not give sufficient weight to Kunoth's antecedents, and that the sentence was manifestly excessive. The appeal court considered the totality principle and found that while the aggregate sentence of sixteen months, with eight months non-parole, was harsh, it was not manifestly excessive given the appellant's criminal history and the breach of suspended sentences. The appeal was dismissed and the original sentences were confirmed.

Orders