Rigby v James [2004] NTSC 6

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Rigby v James [2004] NTSC 6

PARTIES: RIGBY, Kerry Leanne

v

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 2001, the respondent had been drinking in the Katherine area with other family members. At 1.55 am he drove a Ford Meteor sedan along Railway Terrace in the direction of the BP Roadhouse. He stopped to park next to a police vehicle. The police spoke to him and noticed he was unsteady on his feet and had other indicia of being intoxicated. He subsequently was arrested for the purpose of breath analysis, returning a reading of 0.190%. At the time, the respondent was unlicensed. The respondent was charged with driving in excess of .08 (Traffic Act, s 19(2)) and driving unlicensed and was released on bail to appear at the Katherine Court of Summary Jurisdiction on 8 November 2001. Because of the high breath analysis reading, the police were empowered vide s 20A of the Traffic Act to serve a notice suspending the respondent's licence. By force of s 20A(4), the respondent was disqualified from driving a motor vehicle until the charge under s 19(2) was determined by a court.
[6] On 8 November 2001, the appellant failed to appear, and the matter was not dealt with until 16 July 2003 when he faced the charges in matter No 20309540. The respondent is an Aboriginal Stockman who worked at Bidindoodooo Station as a stockman. Apparently, he had returned to the Station after his release on bail. Although he received the notice from the police required by s 20A of the Traffic Act, he has poor literary skills and did not understand it. Because of his intoxication he did not recall being told by police his licence was suspended. The station is in a remote part of the Northern Territory, and without a vehicle or a driver's licence he was obviously reliant on others to get him to court. His wife lived at Yarralin, having moved there after the respondent's arrest in November 2001. Yarralin is near Victoria River Downs Station in the region of Top Springs, south west of Timber Creek in a remote part of the Territory.
[7] On 30 May 2003, the respondent was drinking with friends at the Top Springs Hotel. Later in the afternoon the respondent and his friends travelled back to Yarralin in a vehicle owned by another person. The vehicle stopped at the driver's residence and the respondent alighted. A short time later he returned to the vehicle which has been left with the engine running and drove onto the street and in circles, spinning the tyres. Two concerned members of the community attempted to stop him but he drove off and eventually crashed the vehicle as well as damaging the gates of the community workshop. The respondent disappeared before the police arrived and was not located until some hours later. As a result he was charged with the offences the subject of this appeal as well as with driving in a manner dangerous to the public and with offences against the Liquor Act.
[8] All of the offending was dealt with by way of plea at the Court of Summary Jurisdiction sitting at Katherine on 16 July 2003.

Grounds 1 and 2

[9] It is convenient to deal with these grounds together. The Traffic Act provides for minimum periods of disqualification in certain circumstances. For example, in the case of an offence against s 19(2) of the Traffic Act, the Act provides for a minimum period of disqualification of 6 months for a first offence and 12 months for a second or subsequent offence or where the reading exceeds .15%, as it did in this case, 12 months for a first offence and 18 months for a second or subsequent offence. In the case of a breach of s 19(1) of the Act, the minimum period for a first offence is 6 months, and for a subsequent offence, 12 months: see Section 39(1) and Schedule 1 to the Act. It is common ground that the learned Magistrate fell into error in thinking that the mandatory minimum period was 18 months. That period is the mandatory minimum period of disqualification for a second or subsequent offence against s 19(2) of the Traffic Act where the concentration exceeds .15%: see s 39(1) and Schedule 1.
[10] It is clear that at the time of the hearing on 16 July 2003, the appellant had no prior convictions. The expression "second and subsequent offence" is defined by s 49(2) of the Act to mean "a reference to an offence committed against that provision by a person who has previously been found guilty of… that offence…" Successive findings of guilt on the same day do not meet that description: Schluter v R (1997) 6 NTLR194 at 197 per Martin CJ.
[11] It is also clear that the period of disqualification to be imposed (whether it be the minimum or otherwise) cannot be backdated and must run from the date of the finding of guilt: see Dixon v Pryce (unreported, Mildren J, 26 September 1996); Murphy v Moloney (1997) 113 NTR 10 at 11. However, s 39(3A) provides:
"Where a person, who was disqualified from driving a motor vehicle under s 20A(4), is in respect of the same offence disqualified from holding a licence under this section, the court must make an order that the period of disqualification from holding a licence under this section is the period that equals the period of disqualification imposed under this section less the actual period the person was disqualified from driving under section 20A."
[12] Where s 39(3A) applies, the period of disqualification is not backdated, but the court must reduce the period, even below the prescribed minimum, to take into account the period of disqualification already served by virtue of s 20A(4). That is what the learned Magistrate attempted to do, by imposing what he thought was the minimum period of 18 months less the 273 days "deducted" therefrom. (The number of days to be deducted was in fact 253, not 273 days.)
[13] Counsel for the appellant, Mr Dooley, submitted that there should have been no deduction or backdating because no s 20A notice had been issued in respect of the offence in question in this matter. It is clear that the offence which we have been discussing was a breach of s 19(1) which occurred on 30 May 2003, whilst the s 20A notice was given in respect of an offence against s 19(2), which occurred on 3 November 2001. Consequently, Mr Dooley is correct, and the minimum period of disqualification of 6 months commencing from the date of sentence, i.e. 16 July 2003, ought to have been imposed.
[14] There are obvious difficulties with this legislation which has been poorly thought out. Some of these difficulties were discussed in argument. It is possible to end up with a negative figure, applying the mandatory language of s 39(3A), where the period of disqualification by the s 20A notice exceeds the period of disqualification required to be imposed or in fact imposed by the court. This may not present a practical problem because the court would simply order no period of disqualification, but the result is a curious one nevertheless. Another problem arises where the notice is given under s 20A in respect of a breach of s 20 of the Traffic Act (failing to supply a sample of breath for analysis) in circumstances where the offender is also charged with a first offence of driving under the influence (s 19(1)). If the defendant has no prior convictions, and is found guilty of both offences (both of which carry mandatory minimum periods of disqualification) the court is required to reduce the period under s 20 but not under s 19(1). This kind of anomaly is almost inevitable with mandatory minimum sentencing; but nevertheless I draw it to the attention of the legislature to see if it can be remedied. Counsel for the respondent submitted that s 39(3A) could apply so that a disqualification period can be "backdated" for any charges requiring disqualification from driving which are dealt with by the court at the same time, but I think that this submission is unsound. S 39(3A) applies, according to its terms, only in respect of the same offence, not different offences dealt with on the same occasion by a court.

Manifestly Inadequate

[15] It was submitted that a fine of $100 is manifestly inadequate for a driving whilst disqualified offence. However, the learned Magistrate obviously took into account that the respondent had no prior convictions, had pleaded guilty and had been in custody for a little over three weeks in respect of that matter. I indicated at the hearing of the appeal that in the circumstances I was not inclined to interfere, this being an appeal by the Crown.


Conclusion

The appeal is allowed. The period of disqualification imposed by the learned Magistrate is set aside. In lieu, thereof, there will be a period of disqualification for 6 months commencing from 16 July 2003. The appeal is otherwise dismissed.

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