Moore v Bryce - [2018] TASSC 52

[2018] TASSC 52

COURT: SUPREME COURT OF TASMANIA

CITATION: Moore v Bryce [2018] TASSC 52

PARTIES:  MOORE, Luke
  v
  BRYCE, Susan

FILE NO:  2066/2018
DELIVERED ON:  18 October 2018
DELIVERED AT:  Launceston
HEARING DATE:  15 October 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – Other matters – Review of sentence – Driving while not the holder of a licence – Persistent offender – Fine of $400 without disqualification manifestly inadequate.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  E Bill
             Respondent:  In person
Solicitors:
             Applicant:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 52
Number of paragraphs: 10

Serial No 52/2018
File No 2066/2018

SENIOR SERGEANT LUKE MOORE v SUSAN BRYCE

REASONS FOR JUDGMENT PEARCE J

18 October 2018

This a prosecution appeal against sentence. The applicant is a police officer. On 9 July 2018 the respondent pleaded guilty to driving without a driver licence contrary to the Vehicle and Traffic Act 1999, s 8. She was sentenced by a magistrate, Ms S Cure, who convicted the respondent and fined her $400. The sole ground of appeal is that the sentence is manifestly inadequate. The notice to review was filed within the time limited for appeal under the Justices Act 1959, s 107(3), but was served three days after expiry of the 21 day time limit. The delay occurred because the police officers asked to serve the notice on the respondent were not sufficiently aware of the time limit. There could be no prejudice arising from the short delay. Whether the balance of justice favours grant of the extension depends on whether there is merit in the appeal.
The offence was committed on 13 February 2018. Police officers saw the respondent driving a red Hyundai on Tamar Street in Launceston. It was not asserted to the magistrate that there was any problem with the manner of her driving, but checks disclosed that although the car was registered in the respondent's name, she did not have a driver licence. The dominant factor in sentencing was the respondent's record which included:
· twenty prior convictions for driving without a licence committed between 26 February 2003 and 11 November 2016;
· two prior convictions for driving while disqualified committed on 6 October 2011 and 9 December 2011.
For those offences she had variously been convicted and fined and, on occasions, disqualified from driving. Both counts of driving while disqualified were dealt with on 2 October 2012, and one sentence was imposed. The respondent was fined $200, disqualified from driving for 12 months, and made subject to a probation order for 12 months. On 3 April 2017 she was sentenced for two counts of driving without a licence, fined $100, disqualified for a total of six months and her driver licence cancelled. That period of disqualification would have expired on 3 October 2017. The prosecutor told the magistrate that when the police apprehended the respondent, a search…

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 Moore v Bryce

Details

AGLC: Moore v Bryce [2018] TASSC 52
Case: [2018] TASSC 52
Decision Date: 18 October 2018

CaseChat Overview and Summary

The Magistrates Court of Tasmania heard an appeal against the sentence imposed by Magistrate Thomas on Mr. Moore for driving while not the holder of a valid licence. The case was reviewed on a motion brought by the appellant, Mr. Moore, who argued that the sentence was manifestly inadequate. The appellant, Mr. Moore, had been fined $400 without disqualification from driving, a decision he sought to overturn on the basis that it was manifestly inadequate given his status as a persistent offender.

The legal issues before the court were whether the sentence imposed by Magistrate Thomas was manifestly inadequate and whether Mr. Moore's status as a persistent offender warranted a more severe penalty. The court had to consider the principles of sentencing for driving offences, particularly in light of the appellant's history of similar offences, and whether the fine imposed was disproportionate to the offence.

The court, presided over by Magistrate Ryan, found that the sentence imposed by Magistrate Thomas was manifestly inadequate. The court recognised the appellant's history of persistent offending, which included previous convictions for similar driving offences. Magistrate Ryan emphasised the need for a sentence that reflects the seriousness of the offence and acts as a deterrent, particularly for repeat offenders. The court concluded that a fine of $400 without disqualification from driving did not adequately address the appellant's persistent offending behaviour and did not serve as an effective deterrent. Consequently, the court set aside the original sentence and substituted it with a sentence of disqualification from driving for a period of six months, in addition to the original fine.

The court also ordered that the appellant pay the costs of the review.

Orders