Michael v Eaton - [2010] NTSC 56

Michael v Eaton [2010] NTSC 56
PARTIES:MICHAEL, Peter
v

EATON, Donald

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 7 of 2010 (21012795)
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 DISQUALIFIED
Appeal against severity of sentence – whether Magistrate erred in using maximum penalty as starting point – circumstances of offence not in worst category – sentence manifestly excessive – appeal allowed – sentence set aside.
REPRESENTATION:
Counsel:
Appellant:M O’Reilly
Respondent: I McMinn

Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service Inc
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:     B
Judgment ID Number:  Mar 1018
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Michael v Eaton [2010] NTSC 56

No. JA 7 of 2010 (21012795)
BETWEEN:

PETER MICHAEL

Appellant

AND:

DONALD EATON

Respondent

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

This is an appeal against a sentence of nine months imprisonment imposed for the offence of driving while disqualified from holding or obtaining a driver’s licence. The sole ground of appeal was that the sentence was manifestly excessive.
For the reasons that follow, the appeal is allowed.
Facts
The circumstances of the offending were typical of the type of offence that comes before the Court of Summary Jurisdiction. The appellant has an appalling record of offending against the road traffic laws and on 15 October 2009, for an offence of driving while disqualified and other road traffic offences, he was disqualified for a period of five years. On the morning of Saturday 17 April 2010, having stayed overnight at a camp and intending to return to his home in Kintore, the appellant drove his wife’s car to pick up another driver and was stopped randomly. There was nothing in his driving that attracted the attention of police. When asked for his licence, the appellant falsely informed the police that his licence was with family at the Larrapinta Valley Camp.
The appellant is a 55 year old Warlpiri man who is married with three children and five grandchildren. He and his wife live at Kintore. Somewhat unusually for cases of this type the appellant has a good working history, having worked over many years as a mechanic, painter, plumber and builder of houses. He has also worked on night patrols.
Unfortunately, as is so common in these cases, the appellant has a very bad driving record dating back to 1974 when he first drove unlicensed. In addition to many other road traffic offences, including driving with excessive alcohol, prior to this occasion the appellant had committed six previous offences of driving while disqualified and two offences of driving while unlicensed. The first offence of driving while disqualified was committed in 1983, and in 1991, for the second…

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 Michael v Eaton

Details

AGLC: Michael v Eaton [2010] NTSC 56
Case: [2010] NTSC 56
Decision Date: 10 August 2010

CaseChat Overview and Summary

The appeal was brought by Michael against a sentence imposed by Eaton, a Magistrate, for a road traffic offence of driving while disqualified. The appellant, Michael, has a lengthy criminal history of driving offences, including multiple instances of driving while disqualified. On this occasion, Michael drove while disqualified and was caught during a random police check. The Crown accepted that the sentence imposed was outside the current range of sentences for such offences and that the sentence was manifestly excessive. The legal issue before the court was whether the Magistrate erred in using the maximum penalty as the starting point for sentencing, and whether the sentence was manifestly excessive. The court found that the Magistrate did err in using the maximum penalty as the starting point, as the circumstances of the particular offence did not place it in the worst category of offending of this type. The court concluded that the sentence was manifestly excessive and allowed the appeal. The sentence of nine months imprisonment was set aside, and a sentence of six months imprisonment was imposed, reduced by 25 percent to reflect the appellant's plea of guilty. The sentence was to commence on 17 April 2010.

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 circumstances of the offending were typical of the type of offence that comes before the Court of Summary Jurisdiction. The appellant has an appalling record of offending against the road traffic laws and on 15 October 2009, for an offence of driving while disqualified and other road traffic offences, he was disqualified for a period of five years. On the morning of Saturday 17 April 2010, having stayed overnight at a camp and intending to return to his home in Kintore, the appellant drove his wife’s car to pick up another driver and was stopped randomly. There was nothing in his driving that attracted the attention of police. When asked for his licence, the appellant falsely informed the police that his licence was with family at the Larrapinta Valley Camp. The appellant is a 55 year old Warlpiri man who is married with three children and five grandchildren. He and his wife live at Kintore. Somewhat unusually for cases of this type the appellant has a good working history, having worked over many years as a mechanic, painter, plumber and builder of houses. He has also worked on night patrols. Unfortunately, as is so common in these cases, the appellant has a very bad driving record dating back to 1974 when he first drove unlicensed. In addition to many other road traffic offences, including driving with excessive alcohol, prior to this occasion the appellant had committed six previous offences of driving while disqualified and two offences of driving while unlicensed. The first offence of driving while disqualified was committed in 1983, and in 1991, for the second offence of driving while disqualified, a sentence of two months imprisonment was imposed. For a few years the appellant managed to avoid driving while affected by alcohol and other road traffic offences until he failed to supply a sample of his breath in 1994. On 7 January 1997 the appellant was convicted of driving while disqualified and a sentence of two months imprisonment was imposed and suspended upon home detention for six months. Within a few days the appellant breached the home detention and on 13 January 1997 the sentence of two months imprisonment was ordered to be served. On 20 October 2000 the appellant drove while unlicensed but he was not dealt with until 4 May 2007 when he was sentenced for a number of other offences committed in 2000, 2001 and 2007. On 8 February 2008 the appellant drove while disqualified. He repeated that offence 11 days later on 19 February 2008. On both occasions he was driving with an excess level of alcohol. For the offending on 8 February 2008 an aggregate sentence of two months imprisonment was imposed together with a licence disqualification for five years. For the offending on 19 February 2008 an aggregate sentence of three months imprisonment was imposed, together with a five year disqualification. The record does not disclose whether the sentences of imprisonment were to be served concurrently or cumulatively.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to the current range of sentences, the Crown has conceded that this sentence was outside that current range, and that the appellant has succeeded in demonstrating that the sentence was manifestly excessive. That concession was properly made. Conclusion It is not surprising that the Magistrate took a dim view of the appellant’s offending conduct, but his Honour erred in using the maximum penalty as his starting point. Notwithstanding the appellant’s appalling driving record and prior offences of driving while disqualified, the circumstances of the particular offence did not place it in the worst category of offending of this type. In these circumstances the Magistrate erred as to the appropriate starting point and imposed a manifestly excessive sentence. For these reasons the appeal is allowed and the sentence of nine months imprisonment is set aside. In substitution, after allowing a reduction of 25 percent, in order to reflect the appellant’s plea of guilty, I impose a sentence of six months imprisonment commencing 17 April 2010.

Ratio Decidendi

Legal Principle Established

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