Rigby v James - [2004] NTSC 6

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PARTIES: RIGBY, Kerry Leanne

JAMES, Ian Jungala

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA139 of 2003 (20309540)

DELIVERED: 26 February 2004

HEARING DATES: 19 January 2004

JUDGMENT OF: MILDREN J

CATCHWORDS:

CRIMINAL LAW

Crown appeal against sentence - whether fine imposed was an inadequate sentence - appeal dismissed

CRIMINAL LAW

Licence disqualification - whether power to backdate period - whether magistrate erred in imposing disqualification period for a second offence

Justices Act s 163
Traffic Act s 19,s 20A,s 31,s 39 and s 49

Dixon v Pryce (unreported, Mildren J. 26 September 1996), followed
Murphy v Moloney (1997) 113 NTR 10 at 11, followed
Schluter v R (1997) 6 NTLR 194 at 197, referred to

REPRESENTATION:

Counsel:
Appellant: G. Dooley
Respondent: P. O'Brien

Solicitors:
Appellant: DPP
Respondent: KRALAS

Judgment category classification: B
Judgment ID Number: Mil04328
Number of pages: 8

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

Rigby v James [2004] NTSC 6
No. JA139 of 2003 (20309540)

BETWEEN:

KERRY LEANNE RIGBY
Appellant

AND:

IAN JUNGALA JAMES
Respondent

CORAM: MILDREN J

REASONS FOR JUDGMENT

(Delivered 26 February 2004)

[1] This is an appeal by the complainant pursuant to s 163 of the Justices Act.
[2] The respondent was charged on complainant, inter alia, with driving whilst disqualified contrary to s 31(1) of the Traffic Act (Count 1) and with driving whilst under the influence of an intoxicating substance, contrary to s 19(1) of the Traffic Act (Count 2). These offences occurred at Yarralin Community on 30 May 2003. On his pleas of guilty, the learned Magistrate imposed a fine of $100 in relation to Count 1. In relation to Count 2, the learned Magistrate imposed a fine of $500 and disqualified the respondent for a period of 18 months less a period of 273 days which his Worship "deducted" from the period of 18 months for reasons which I will shortly come to.
[3] The original notice of appeal contained only one ground, viz that the learned Magistrate "erred in law in backdating the period of disqualification in force in relation to Count 2". At the hearing of the appeal the appellant sought leave to add two further grounds, as follows:
(1) That the learned Stipendiary Magistrate erred in imposing a 'mandatory' minimum period of disqualification period of 18 months in relation to Count 2 of file 20309540; and
(2) That the sentence imposed in respect of Count 1 on file 20309540 was manifestly inadequate.
[4] No objection was taken to the new ground (1) above, but counsel for the respondent raised objections to ground (2). For reasons which will become apparent it is unnecessary to determine the respondent's objections because I would not allow an appeal on this ground in any event for the reasons which are discussed below.

FACTS

[5] On 3 November…

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 Rigby v James

Details

AGLC: Rigby v James [2004] NTSC 006
Case: [2004] NTSC 6
Decision Date: 26/02/2004

CaseChat Overview and Summary

The Supreme Court of the Northern Territory was asked to decide an appeal brought by the complainant against a sentence imposed by a Magistrate. The appellant, Kerry Leanne Rigby, appealed against the sentence imposed on Ian Jungala James, arguing that the fine and period of disqualification were inadequate. James had been charged with driving whilst disqualified and driving under the influence of an intoxicating substance. The Magistrate imposed a fine of $100 for the first offence and a fine of $500 along with a disqualification period of 18 months less 273 days for the second offence. The appellant argued that the Magistrate erred in backdating the period of disqualification and that the sentence imposed was manifestly inadequate. The court considered the arguments and found that the Magistrate had indeed erred in imposing a backdated period of disqualification. However, the court decided not to allow the appeal on the ground that the sentence imposed was manifestly inadequate because the Magistrate had taken into account the respondent's lack of prior convictions, guilty plea, and time spent in custody. The appeal was otherwise dismissed, and the court set aside the period of disqualification imposed by the Magistrate, imposing a period of disqualification for 6 months commencing from 16 July 2003.

Orders