Rontji v Westphal
[2010] NTSC 67
•02/12/2010
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”.
1
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
young age; been a full time mother since she was 18 years of age and was
currently in receipt of Centrelink benefits. His Honour was told the
Appellant was recently trying to obtain her license although there is no clear
explanation why that did not proceed. It may have been due to previous
disqualifications from driving but that is unclear from the transcript.
Counsel raised the Appellant’s plea of guilty and that the drive unlicensed
was not aggravated by other poor driving or by alcohol. Counsel noted her
previous record of drink driving and submitted that she had learnt not to
drink drive but “nevertheless she’s still coming to court in relation to
driving without a license” (T 3). Counsel told the Court the Appellant had
R v Raggett (1991) 50 A Crim R 41; House v The King (1936) 55 CLR 499.
2
indicated to him she would like to obtain her license and requested the case
be dealt with by way of fine.
The learned Magistrate noted the Appellant had been convicted for different
traffic offences 23 times including the nine previous matters of driving
without a license. He considered she was ignoring her obligation to obtain a
driver’s license and there was no evidence before him to persuade him that
the Appellant had learnt her lesson.
On the basis of the need for general and specific deterrence and being given
too many chances, His Honour noted the Appellant had “run out of chances”
and imposed the term of actual imprisonment for 21 days.
Discussion
Before this Court is a schedule of recent penalties for drive unlicensed
penalties imposed in the Court of Summary Jurisdiction between 19 January
2010 and 28 July 2010. None of the persons noted in the schedule received
a sentence of imprisonment. All were dealt with by way of fine. Many have
received aggregated fines with other traffic fines for concurrent offending. I
include in that assessment persons who have been fined when they have 7 –
10 previous convictions. The fines for that category of repeat offender
range from $125 $500.
| [8] | In this matter it is difficult to see how departing from the established |
| sentencing standard could be justified. There was no other errant driving | |
| noted and no alcohol was involved. The previous drive unlicensed |
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conviction was dealt with in 2008 for an offence committed in 2007.
Although concerning and somewhat frustrating, the offending does not have
the features of a contumelious breach of the law. Despite the previous
convictions an assessment must be made of the objective seriousness of the
offending. 2 In my respectful view the particular offending did not justify a
term of imprisonment and is plainly excessive when viewed in the light of
the usual sentencing range and recently considered decisions. 3
Ground two is a related ground. If the Court of Summary Jurisdiction were
to impose an alternative sentence to a fine, (if it was thought an alternative
would serve general and personal deterrence in a more meaningful way),
other options need to be considered before resorting to imprisonment. In
Ross v Toohey 4 Mildren J said [14]:
“I accept that imprisonment is an option of last resort in the sense
that, the sentencer should consider all of the other lesser options first
and, only if the sentencer concludes that no lesser sentence is
appropriate, should a sentence of imprisonment be imposed”.
I accept also that the mere fact that other options were not canvassed does
not mean they were not considered. As Riley J (as he then was) stated:
“It is to be assumed that magistrates are well aware of the sentencing
options open to them”. 5
Veen v R (no 2) (1988) 164 CLR 465.
Lucy Long v Lindsay Westphal [2010] NTSC 55; Michael v Eaton [2010] NTSC 56
[2006] NTSC 92.
Simon v Garner [2007] NTSC 33 at [12].
4
Failure to specifically mention a particular sentencing option does not mean
it was not considered. 6
Counsel did not raise other options for the learned Magistrate’s
consideration. That may have been due to the settled sentencing standard
being a fine. There may have been other options available that could have
serviced the requirements of general and specific deterrence and encouraged
compliance. Community work may have been an option. On appeal it was
mentioned by counsel that some Magistrates postpone sentencing after a
plea of guilty has been entered to ascertain if the Defendant can make the
appropriate arrangements to take steps to obtain a license. Some remote
areas do not have facilities for license testing on a regular basis. Once
again, on Appeal counsel who appeared understood that Hermannsburg was
a community that did not have the problems of other more remote areas in
this regard.
| [13] | Given the question of the suitability of the Appellant for community work | |
| was not raised, I cannot be satisfied the option of community work was | ||
| available to the learned Magistrate. Defendants must be assessed for their | ||
| ||
| order immediate actual imprisonment leads me to the conclusion that ground | ||
| two is made out. As noted, counsel asked the learned Magistrate to fine the | ||
| Appellant. Counsel did not offer other alternatives. Other options have |
Simon v Garner at [12] citing Kuiper v Brennan [2006] NTSC 54.
5
been canvassed on appeal. In future cases counsel should, in my respectful
view, at least mention alternatives reasonably available at first instance.
The appeal will be allowed. I quash the sentence of imprisonment and
impose instead a fine which I consider to be in the upper range of offending
for offenders with a significant number of previous convictions for drive
unlicensed. I have been conscious of the approach of Martin CJ in Lucy
Long v Lindsay Westphal 7 and Peter Michael v Donald Eaton 8 and with
respect agree and adopt His Honour’s approach.
I have considered having the Appellant assessed for community work
however in the interests of expediting the matter (given the Appellant is not
personally before this Court on appeal and some time has now lapsed since
the offending) in my view on this occasion a fine in the upper range is
appropriate.
The Appellant is fined $500 and I order a victim’s levy of $40.
[2010] NTSC 55.
[2010] NTSC 56.
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