Lalara v Malogorski - [2012] NTSC 53

Lalara v Malogorski [2012] NTSC 53
PARTIES: LALARA, Simeon
v

MALOGORSKI, Mark

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 29 of 2012 (21137670)
DELIVERED:   3 August 2012
HEARING DATES:   16 July 2012
JUDGMENT OF:   MILDREN J
APPEAL FROM:   Court of Summary Jurisdiction
(MR G CAVANAGH SM)

Traffic Act, s 22
James v Turner (2006) 15 Tas R 375, applied.

Baumer v The Queen (1988) 166 CLR 51; Gumurdul v Reinke (2006) 161 A Crim R 87; Jorin v Wilson [2006] NTSC 46; Veen v The Queen (No 2) (1987-1988) 164 CLR 465, followed.
Dinsdale v The Queen (2000) 202 CLR 321; Turner v Trennery (1997) 1 NTSC 21, referred to.
REPRESENTATION:
Counsel:
Appellant:   A Pyne
Respondent:   M McColm
Solicitors:
Appellant:   North Australian Aboriginal Justice Agency
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    C
Number of pages:   7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lalara v Malogorski [2012] NTSC 53
No. JA 29 of 2012 (21137670)
BETWEEN:

SIMEON LALARA

Appellant

AND:

MARK MALOGORSKI

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 3 August 2012)

This is an appeal against sentence. On 26 April 2012, the appellant pleaded guilty to one count that, on 8 November 2011, at Darwin, he drove a motor vehicle on a road, namely, Ross Smith Avenue, with a medium range blood alcohol content, namely, 0.140 percent, contrary to s 22 of the Traffic Act.
The facts, which were not in dispute, were that, at 10:00 pm on 8 November 2011, the appellant was seen driving a black Holden Commodore along Ross Smith Avenue, Parap towards Fannie Bay. The vehicle was followed by police and was apprehended in the BP Service Station, Fannie Bay for the purpose of a roadside breath test. When the test was administered, it returned a positive reading. The appellant was informed that he was under arrest for the purpose of the breath analysis. He was taken to the Darwin watch house, where he participated in a breath analysis which returned a positive reading of 0.140 percent. At the time of the offence, it was put that there was “minimal” street lighting and the weather was fine, and that there were two passengers in the vehicle.
There were no aggravating circumstances, such as driving in an erratic manner alleged. It was not suggested that the vehicle was, in any other way, being driven unlawfully.
The submission made by the appellant’s counsel in mitigation in the Court of Summary Jurisdiction was that the appellant had been drinking with family at Mindil Beach. He was asked to drive by the other persons there because they were so drunk that they were unable to drive, and he was the only one with a licence. It was submitted that he “succumbed to the pressure to drive”. It was submitted that he had spent a total of nine days in…

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 Lalara v Malogorski

Details

AGLC: Lalara v Malogorski [2012] NTSC 53
Case: [2012] NTSC 53
Decision Date: 03/08/2012

CaseChat Overview and Summary

The appeal in Lalara v Malogorski concerns a challenge to the sentence imposed on Simeon Lalara by the Stipendiary Magistrate for driving a motor vehicle while over the legal alcohol limit. Lalara pleaded guilty to the offence, which occurred in Darwin on 8 November 2011. The key legal issues before the court were whether the Magistrate had properly considered the principle that imprisonment should be a punishment of last resort, whether the two-step process outlined in Dinsdale v The Queen was followed, and whether the sentence was manifestly excessive.

The Supreme Court of the Northern Territory found that the Magistrate had given too much weight to Lalara’s extensive prior convictions for drink driving. The court held that while prior convictions can be a relevant factor, they should not lead to a disproportionate penalty for the current offence. The court emphasised that the appropriate penalty should fit the gravity of the instant offence. The court also noted that there were no aggravating circumstances in this case, such as erratic driving or other unlawful conduct, and that Lalara had already served some time on remand. Based on these considerations, the court allowed the appeal, quashed the sentence of imprisonment, and substituted a fine of $1,000 along with a $40 victim impact levy.

The court’s reasoning demonstrates the importance of balancing the need for deterrence and public protection with the principle that imprisonment should be a last resort. The court recognised that Lalara’s prior convictions were a factor, but held that they did not justify the sentence imposed by the Magistrate. The outcome highlights the need for sentencers to carefully consider the objective circumstances of the offence and avoid imposing disproportionate penalties based solely on an offender’s criminal history.

Orders