Long v Westphal - [2010] NTSC 55

Long v Westphal [2010] NTSC 55
PARTIES:LONG, Lucy

v
WESTPHAL, Lindsay

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 9 of 2010 (21000538)
DELIVERED:  10 August 2010
HEARING DATES:  10 August 2010
JUDGMENT OF:  MARTIN (BR) CJ
APPEAL FROM:  Mr Neill SM
CATCHWORDS:

CRIMINAL LAW – SENTENCING – ROAD TRAFFIC OFFENCES – DRIVING WHILE UNLICENSED – PROVIDING FALSE PARTICULARS
Appeal against severity of sentence – whether Magistrate erred in failing to consider appellant’s financial circumstances in setting fine – disqualification order outside standard range – sentence manifestly excessive – appeal allowed – sentence set aside.
Sentencing Act 1995 (NT) s 17(1) and (2)
Daniels v R (2007) 20 NTLR 147; R v Rahme (1989) 43 A Crim R 81, followed.

REPRESENTATION:
Counsel:
Appellant:M O’Reilly
Respondent:  M McColm
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service Inc
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:     B
Judgment ID Number:  Mar1017
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Long v Westphal [2010] NTSC 55

No. JA 9 of 2010 (21000538)
BETWEEN:

LUCY LONG

Appellant

AND:

LINDSAY WESTPHAL

Respondent

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered ex tempore 10 August 2010)
Introduction

This is an appeal against sentences imposed for driving while unlicensed and providing false particulars to police. For the offence of driving while unlicensed the appellant was fined $300 and disqualified from holding or obtaining a license for a period of 12 months. A fine of $300 was imposed for giving false information to police. In essence the appellant contends that the total fine of $600 and the disqualification were manifestly excessive.
For the reasons that follow the appeal is allowed.
Facts
The appellant is aged 22 married with one child. She lives in a town camp at Tennant Creek. Having only attended primary school the appellant is not literate and at the time of sentencing was unemployed and about to face a term of imprisonment.
The offences occurred on 4 January 2010. This was not the first occasion on which the appellant had committed offences against the road traffic laws. Of particular significance in her record of offending were four prior offences of driving while unlicensed committed in January and October 2006, August 2007, and January 2009. On each occasion fines were imposed, but no order was made for licence disqualification.
On the occasion in 2007 when the appellant drove while unlicensed she also drove with a blood alcohol reading of 0.129 percent. On 29 December 2008 for the blood alcohol offence the appellant was disqualified for 12 months commencing 21 August 2007. The disqualification period having ended in August 2008, the appellant did not renew her licence and committed the fourth offence of driving while unlicensed on 27 January 2009. Twelve months later she committed the offence under consideration.
The circumstances in which the appellant came to drive on 4 January 2010 are common…

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 Long v Westphal

Details

AGLC: Long v Westphal [2010] NTSC 55
Case: [2010] NTSC 55
Decision Date: 10 August 2010

CaseChat Overview and Summary

Long appealed against the severity of the sentence imposed by the Magistrates Court, contending that the Magistrate erred in failing to consider her financial circumstances in setting the fine and that the disqualification order was outside the standard range and manifestly excessive. The appeal was allowed. The appellant, aged 22 and with a primary school education, was not literate, unemployed, and about to face imprisonment. She had a history of road traffic offences, including four prior offences of driving while unlicensed. On 4 January 2010, she drove while unlicensed and provided false particulars when stopped by police. The Magistrate did not consider the appellant’s financial circumstances in imposing a fine and the disqualification period was longer than the standard range.

The court needed to determine whether the Magistrate erred in failing to consider the appellant’s financial circumstances and whether the disqualification order was manifestly excessive. The appeal hinged on whether the Magistrate’s failure to consider the appellant’s financial circumstances resulted in a manifestly excessive sentence. The court had to balance the appellant’s history of offending with her financial situation and the statutory requirement to consider the financial circumstances of the offender when imposing a fine.

The court found that the Magistrate did not consider the appellant’s financial circumstances, which was an error. The court held that, in light of the appellant’s impecuniosity and the risk of a de facto term of imprisonment, the fine was manifestly excessive. The disqualification period was also considered outside the standard range and manifestly excessive. Consequently, the appeal was allowed, the sentence was set aside, and the matter was remitted to the Magistrates Court for re-sentencing.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow the appeal is allowed.Facts The appellant is aged 22 married with one child. She lives in a town camp at Tennant Creek. Having only attended primary school the appellant is not literate and at the time of sentencing was unemployed and about to face a term of imprisonment. The offences occurred on 4 January 2010. This was not the first occasion on which the appellant had committed offences against the road traffic laws. Of particular significance in her record of offending were four prior offences of driving while unlicensed committed in January and October 2006, August 2007, and January 2009. On each occasion fines were imposed, but no order was made for licence disqualification. On the occasion in 2007 when the appellant drove while unlicensed she also drove with a blood alcohol reading of 0.129 percent. On 29 December 2008 for the blood alcohol offence the appellant was disqualified for 12 months commencing 21 August 2007. The disqualification period having ended in August 2008, the appellant did not renew her licence and committed the fourth offence of driving while unlicensed on 27 January 2009. Twelve months later she committed the offence under consideration. The circumstances in which the appellant came to drive on 4 January 2010 are common to many offences of this type. The appellant was at a hotel in Tennant Creek with other family members who were drinking. She was not drinking and the family put pressure on her to convey people home. While she was driving for this purpose, police stopped the vehicle as it had a broken rear tail light. There was nothing untoward in the driving of the appellant. Once stopped, the appellant was asked to produce her driver’s licence and immediately made admissions that she did not possess a licence. When asked her name, she gave a false name because she was scared of getting into trouble.Fines Section 17 of the Sentencing Act provides that where a court determines that a fine is an appropriate penalty, the court shall have regard to the financial circumstances of the offender and I will set out the relevant part of s 17:17 Exercise of power to fine (1)Where a court decides to fine an offender, it shall, in determining the amount of the fine, take into account, as far as practicable: (a) the financial circumstances of the offender; and (b)the nature of the burden that its payment will impose on the offender. Although a court is not prevented from fining an offender by reason of lack of information as to the financial circumstances of the offender and the burden that payment of a fine will impose on the offender,[1] nevertheless it was well settled that, where possible, the court should obtain information about the financial circumstances of an offender before imposing a fine. Behind this statutory requirement is a recognition of the principle that fines imposed upon impecunious offenders run the risk of amounting to an unduly harsh penalty and, in some situations, might amount to a de facto term of imprisonment if imprisonment is a consequence of a failure to pay. Commonly, the impecuniosity of an offender will lead to a lower fine than would otherwise be appropriate.

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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