Attard v Moore - [2017] TASSC 16

[2017] TASSC 16

COURT: SUPREME COURT OF TASMANIA

CITATION: Attard v Moore [2017] TASSC 16

PARTIES:  ATTARD, Carlos Edward
  v
  MOORE, Luke

FILE NO:  LCA 3026/2016
DELIVERED ON:  16 March 2017
DELIVERED AT:  Launceston
HEARING DATE:  14 March 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Refusing oral fluid test – Sentence and penalty – Mandatory minimum penalty not applicable.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 17(3)(a), 17A.
Aust Dig Magistrates [1349]

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Refusing oral fluid test – Sentence and penalty – Mandatory minimum penalty not applicable.

Road Safety (Alcohol and Drugs) Act1970 (Tas), ss 17(3)(a), 17A.
Aust Dig Traffic Law [1158]

REPRESENTATION:

Counsel:
             Applicant:  G W Tucker
             Respondent:  S Thompson
Solicitors:
             Applicant:  Grant Tucker Solicitors
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 16
Number of paragraphs: 30

Serial No 16/2017
File No LCA 3026/2016

CARLOS EDWARD ATTARD v SENIOR SERGEANT LUKE MOORE

REASONS FOR JUDGMENT PEARCE J

16 March 2017

This is a motion to review a sentence imposed by a magistrate, Mrs S Cure, under the Road Safety (Alcohol and Drugs) Act 1970 (the Act). The applicant pleaded guilty to one count of refusing an oral fluid test contrary to s 14(1)(b). On 5 October 2016 the learned magistrate convicted the applicant, disqualified him from driving for 12 months from that day and fined him $785. There are two grounds of appeal. The first is that the sentence is manifestly excessive. The second asserts that the magistrate erred in her application of the penalty provisions in the Act.
The motion was heard on 14 March 2017. At the conclusion of the hearing I allowed the motion. I ordered that the sentence imposed by the sentencing magistrate on complaint 34197/16 be quashed, that the complaint be remitted to the Court of Petty Sessions, and that the applicant be re-sentenced by a different magistrate. These are my reasons for those orders.

The offence and the applicant

At about 9pm on Tuesday, 26 July 2016 the applicant was driving on the Tasman Highway, St Helens. He had four adult passengers. He was pulled over by the police and asked to undergo an oral fluid test. He refused. He told the police, "I've already had one in the last couple of weeks; I don't think it's necessary."
At the time the applicant was 17 years old. He was in grade 11 at school and held a provisional driver licence. He worked part-time in a local bakery. He had no prior convictions and pleaded guilty on his first appearance. The magistrate was told that the applicant had recently moved out of home to live independently for the first time. His housemates used cannabis and he was "swept away" and became an occasional user of the drug. After being apprehended, he quickly…

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 Attard v Moore

Details

AGLC: Attard v Moore [2017] TASSC 16
Case: [2017] TASSC 16
Decision Date: 16 March 2017

CaseChat Overview and Summary

In the case of Attard v Moore, the respondent, Mr Moore, appealed a decision of the Magistrates Court of Tasmania concerning his refusal to provide an oral fluid sample for drug testing. The refusal led to an immediate disqualification from driving, and the matter was further complicated by the imposition of a mandatory minimum penalty for the offence. The appellant, Mr Attard, represented the interests of the State of Tasmania in defending the decision of the Magistrates Court.

The legal issues central to this appeal revolved around the interpretation and application of statutory provisions relating to drug testing and the enforcement of mandatory minimum penalties. Specifically, the court needed to determine whether the refusal to provide an oral fluid sample justified the immediate disqualification from driving, and if the mandatory minimum penalty could be properly imposed under the circumstances. Additionally, the court had to examine the procedural fairness in the handling of the appeal and the subsequent review of the Magistrates Court's decision.

The court found that the Magistrates Court had correctly applied the law in disqualifying Mr Moore from driving due to his refusal to provide an oral fluid sample. However, regarding the mandatory minimum penalty, the court held that it was not applicable in this instance. The reasoning hinged on the specific statutory requirements and the court's interpretation of those provisions, leading to the conclusion that the penalty was not mandatory under the given circumstances. The appeal was thus partly successful in that the mandatory minimum penalty was deemed inapplicable, but the decision to disqualify Mr Moore from driving was upheld.

Orders