Thompson v Thomas - [2003] NTSC 108

Thompson v Thomas [2003] NTSC 108
PARTIES:THOMPSON, Warren
v

THOMAS, Peter Mark

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 13/2003 (20206582)
DELIVERED:  12 November 2003
HEARING DATES:  15 October 2003
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Appellant:E Sinoch
Respondent:  C Roberts
Solicitors:
Appellant:Collier & Deane
Respondent:  DPP
Judgment category classification:    C
Judgment ID Number:
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Thompson v Thomas [2003] NTSC 108

No. JA 13 of 2003 (20206582)
BETWEEN:

WARREN THOMPSON

Appellant

AND:

PETER MARK THOMAS

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 12 November 2003)

This is an appeal against sentence. The appellant was charged with having driven a motor vehicle on a public street whilst having a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely 104 milligrams of alcohol, contrary to s 19(2) of the Traffic Act 1999 (NT). To that charge he pleaded guilty. It was submitted on his behalf at the hearing of his plea that in all the circumstances of the case the learned Magistrate ought not to record a conviction.
The appellant was 22 years of age, recently married and in regular employment. His employer gave evidence as to his positive good character and his excellent work history. He had no prior convictions. The circumstances of the offending were somewhat unusual in that the offence occurred prior to his marriage. His wife (then girlfriend) came from Darwin and the appellant was living in Alice Springs. She left Alice Springs to return to her parents home in Darwin because she was homesick. The appellant left Alice Springs temporarily to pursue her. She had arranged with her employer, the Top End Hotel in Mitchell Street, to take on the appellant as a staff member.
On the night in question the appellant drove with his wife-to-be to the employer’s premises only to find that in fact those arrangements had fallen through and there was no job for him on that evening. She, however, had a shift there from 8pm until 4am and because they were staying with his future parents-in-law at Acacia Hills, a distance of some 60 kilometres from the city, he determined that he would wait for her whilst she completed her shift. Whilst waiting for her he drank seven glasses of Jim Beam and coke over a period of several hours. He was driving along Wishart Road, Palmerston on his way back to Acacia Hills when he was pulled over for a roadside breath test and subjected to a breath analysis. This was at 4.28am. There were no other vehicles on the road and there is no suggestion that his driving was erratic.
The learned Magistrate said that his approach when considering a no conviction disposition for this offence was to look for 20 years or more of good driving and a reading of…

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 Thompson v Thomas

Details

AGLC: Thompson v Thomas [2003] NTSC 108
Case: [2003] NTSC 108
Decision Date: 12 November 2003

CaseChat Overview and Summary

In the case of Thompson v Thomas, Warren Thompson, the appellant, appealed against the sentence imposed by the Magistrate for driving a motor vehicle on a public street with an alcohol concentration in his blood of 104 milligrams per 100 millilitres, which exceeded the legal limit of 80 milligrams. Thompson had pleaded guilty to the charge under s 19(2) of the Traffic Act 1999 (NT). The Supreme Court of the Northern Territory, exercising appellate jurisdiction, heard the appeal. The central legal issue was whether the Magistrate erred in law by not recording a conviction, considering the appellant's good character and the extenuating circumstances of the offence.

The court examined the Magistrate's approach to the discretion conferred by s 8 of the Sentencing Act 1995 (NT). The Magistrate had focused narrowly on a lengthy period of driving experience and a lower alcohol reading, which the court found to be an incorrect basis for exercising the discretion. The court highlighted that the Magistrate did not consider all relevant circumstances, including the unusual situation Thompson found himself in, which lessened his culpability. The court noted that the offence, while not trivial, was not excessively serious and occurred under extenuating circumstances. The appellant was a young man with no prior convictions, and the circumstances of the offence suggested he did not pose a danger on the deserted roads at the time.

After reviewing the appellant's positive character, the court concluded that the offence was committed under extenuating circumstances that diminished his culpability. The court further reasoned that not recording a conviction could prevent the social prejudice and potential oppression that a conviction might cause. Given these considerations, the appeal was allowed, and the recording of a conviction was quashed. The other sentencing orders remained in force.

Orders