Small v Nash - [2001] NTSC 34

Small v Nash & Ors [2001] NTSC 34
PARTIES:LESLIE SMALL

v
MARK NASH and
KEVIN DAVID WINZAR and
BRYAN MICHAEL GOBLE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION exercising Territory jurisdiction
FILE NO:JA35 of 2001 (20015063), JA36 of 2001 (20020851), JA45 of 2001 (20016712)
DELIVERED:  16 May 2001
HEARING DATES:  2 May 2001
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL - APPEAL AGAINST SENTENCE
Appeal from Court of Summary Jurisdiction – appeal against sentence – principle of totality - sentence itself not excessive as to manifest such error
Traffic Act 1987 (NT); Sentencing Act 1995 (NT), s 43(6)
Hales v Garb [2000] NTSC 49, referred to,
R v Raggett (1990) 50 A Crim R 41; R v Tait (1979) 46 FLR 386, applied
REPRESENTATION:
Counsel:
Appellant:S O’Connell
Respondents:  C Roberts
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondents:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200114
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Small v Nash & Ors [2001] NTSC 34
No. JA35/2001, JA36/2001, JA45/2001

BETWEEN:
LESLIE SMALL

Appellant
AND:
MARK NASH
and
KEVIN DAVID WINZAR
and
BRYAN MICHAEL GOBLE
Respondents

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 16 May 2001)

This is an appeal from a sentence imposed on the appellant in the Court of Summary Jurisdiction at Alice Springs on 29 December 2000.

On this date the appellant was convicted and sentenced on the following offences:
“1.     File 20015063
(i)Count 1 drive while disqualified, six months imprisonment.
(ii)Count 2 exceed .08, six months imprisonment, cumulative upon Count 1.
2.      File 20016712
(i)Count 1, exceed .08, six months imprisonment cumulative upon file 20015063.
(ii)Count 2, drive while disqualified, six months imprisonment cumulative upon Count 1.
3.      File 20020851
(i)Count 1, fail to supply sufficient sample of breath, six months imprisonment cumulative upon Count 2 (file 20016712).
(ii)Count 3, drive while disqualified, six months imprisonment cumulative upon Count 1.
(iii)Count 3, unregistered, uninsured, convicted and fined $1,000 plus $40 victim’s levy (no time to pay).
(iv)Count 7, criminal damage, convicted and sentenced to 14 days imprisonment to commence at the expiration of the 8 months on 9908355.
4.      Files 900021 and 9908355
(i)Breach of a suspended sentence was proved and the defendant was sentenced to serve 8 months imprisonment to commence on 22 December 2000.”
Overall, a sentence of three years, eight months and 14 days was declared with a non parole period of two years.
The appellant was disqualified from driving a motor vehicle for 10 years. This period of disqualification is partly concurrent with the disqualification period of five years imposed on 16 April 1999.
The grounds of appeal stated on the Notice of Appeal are:
“(a)That the aggregate period of imprisonment was, in all the circumstances, manifestly excessive.
(b)That the Learned Magistrate erred in failing to apply the principle of totality.”
The appellant pleaded guilty to each of the offences.…

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 Small v Nash

Details

AGLC: Small v Nash [2001] NTSC 34
Case: [2001] NTSC 34
Decision Date: 16 May 2001

CaseChat Overview and Summary

The case of Small v Nash was an appeal against sentence imposed by the Court of Summary Jurisdiction. The respondent, Nash, had been convicted of various charges including theft and receiving stolen goods. The appellant, Small, sought to appeal the severity of the sentence imposed on the grounds that it was excessive and constituted a manifest error. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the Court of Summary Jurisdiction was so excessive as to demonstrate a manifest error. The appellant argued that the court had failed to consider the principle of totality, which mandates that the total sentence should be proportionate to the aggregate seriousness of the offences. The court had to determine if the sentence was within the bounds of what was reasonable and just given the totality of the circumstances.

The court, after considering the arguments and the principle of totality, found that while the sentence was on the higher end of the spectrum, it was not excessive to the point of demonstrating a manifest error. The court held that the sentence, when viewed in light of the principle of totality, was within the range of what was appropriate for the crimes committed. The appeal was dismissed as the court did not find any error in the sentencing process that warranted a reversal.

No further orders were made by the court beyond the dismissal of the appeal. The sentence imposed by the Court of Summary Jurisdiction was upheld, and Nash was required to serve the sentence as determined by the lower court.

Orders