Rontji v Westphal - [2010] NTSC 67

Rontji v Westphal [2010] NTSC 67

PARTIES:   RONTJI, Andrea
v
WESTPHAL, Lindsay
TITLE OF COURT:   SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE
TERRITORY EXERCISING
APPELLATE JURISDICTION
FILE NO:   JA 21 of 2010 (21020535)
DELIVERED:   2 December 2010
HEARING DATES:   24 November 2010
JUDGMENT OF:   BLOKLAND J
APPEAL FROM:   Mr Neill SM
CATCHWORDS:
CRIMINAL LAW SENTENCING ROAD TRAFFIC OFFENCES An
appeal against sentence by Stipendiary Magistrate of term of actual
imprisonment for 21 days for driving unlicensed appeal grounds that
sentence was manifestly excessive and that the learned Magistrate erred by
not considering other sentencing options available ‘alternative to a term of
actual imprisonment’ – appeal allowed.
House v The King (1936) 55 CLR 499; Kuiper v Brennan [2006] NTSC 54;
Lucy Long v Lindsay Westphal [2010] NTSC 55; Peter Michael v Donald
Eaton [2010] NTSC 56; R v Raggett (1991) 50 A Crim R 41; Ross v Toohey
[2006] NTSC 92; Simon v Garner [2007] NTSC 33; Veen v R (no 2) (1988)
164 CLR 465
REPRESENTATION:
Counsel:

Appellant:   J Tapueluelu
Respondent:   I McMinn
Solicitors:

Appellant:   Central Australian Aboriginal Legal Aid
Service
Respondent:   Office of the Director of Public
Prosecutions
Judgment category classification: C

Judgment ID Number:   BLO 1010
Number of pages:   6
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Rontji v Westphal [2010] NTSC 67
No. JA 21 of 2010 (21020535)
BETWEEN:
ANDREA RONTJI
Appellant

AND:
LINDSAY WESTPHAL
Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 2 December 2010)

Introduction

On 13 September 2010 at Hermannsburg, the Appellant pleaded guilty to
one count of driving unlicensed and was convicted and sentenced to a period
of 21 days imprisonment.  She had nine previous convictions for drive
unlicensed.  The maximum penalty is 20 penalty units or imprisonment for
12 months.  The Appellant was apprehended by police on 1 May 2010, 20
kilometres east of Hermannsburg as a result of attending a road side breath
testing station.  The license check made by police revealed she did not have
a driver’s license.  When asked why she was driving without a license she
said “To come into the sport’s weekend”.  When asked if there was any
emergency reason for driving she said “no”.

The Appellant argues two grounds of appeal.  First, the sentence was
manifestly excessive.  Second, the learned Magistrate erred by not
considering other sentencing options available “alternative to a term of
immediate imprisonment”.  The respondent conceded the sentence was
manifestly excessive. As a discretionary order a sentence will not be
disturbed unless error is clearly shown according to well established
principles. 1
Proceedings Before The Court of Summary Jurisdiction
Aside from the facts noted above that were put before the learned Magistrate
brief submissions were made on behalf of the Appellant explaining she was
30 years of age, married with three children, resides at Jay Creek although
she grew up and went to school at Hermannsburg. She had children at a

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 Rontji v Westphal

Details

AGLC: Rontji v Westphal [2010] NTSC 67
Case: [2010] NTSC 67
Decision Date: 02/12/2010

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Andrea Rontji appealed against a sentence of 21 days imprisonment imposed by a Stipendiary Magistrate for driving without a license. Rontji had nine previous convictions for driving unlicensed. The maximum penalty for this offence is 20 penalty units or imprisonment for 12 months. Rontji argued that the sentence was manifestly excessive and that the Magistrate had failed to consider other sentencing options. The respondent conceded the sentence was manifestly excessive.

The court considered whether the sentence was manifestly excessive and whether the Magistrate had failed to consider alternative sentencing options. The court noted that all recent penalties for driving unlicensed had been fines and that imprisonment was an option of last resort. The court found that the sentence was plainly excessive when viewed in the light of the usual sentencing range and recent decisions. The court also found that the Magistrate had failed to consider other sentencing options, such as community work.

The court allowed the appeal, quashed the sentence of imprisonment, and imposed a fine of $500, along with a victim's levy of $40. The court considered the approach of Martin CJ in Lucy Long v Lindsay Westphal and Peter Michael v Donald Eaton and agreed with their approach. The court also considered whether to assess Rontji for community work but decided that a fine was appropriate in the circumstances.

Orders