Moore v Rittman - [2018] TASSC 5

[2018] TASSC 5

COURT: SUPREME COURT OF TASMANIA

CITATION: Moore v Rittman [2018] TASSC 5

PARTIES:  MOORE, Luke (Senior Sergeant)
  PARKER, John (Senior Sergeant)
  v
  RITTMAN, Quentin Charles

FILE NO:  1861/2017
DELIVERED ON:  13 February 2018
DELIVERED AT:  Hobart
HEARING DATE:  17 October 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Discretion to record conviction – Generally – Emphasis on rehabilitative approach – Magistrate's decision to not record conviction for first time family violence offences was not manifestly inadequate – Motion to review dismissed.

Sentencing Act 1997 (Tas), s 7(f).
Cannell v Probert [2017] TASSC 69; Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13; Bonde v Ellery [2016] TASSC 43, cited.

Aust Dig Criminal Law [3410]

REPRESENTATION:

Counsel:
             Appellant:  L Pennington
             Respondent:  In person
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 5
Number of paragraphs: 21

Serial No 5/2018
File No 1861/2017

SENIOR SERGEANT LUKE MOORE
and SENIOR SERGEANT JOHN PARKER
v QUENTIN CHARLES RITTMAN

REASONS FOR JUDGMENT BRETT J

13 February 2018

On 15 June 2017, Magistrate S Cure imposed sentence on the respondent in respect of two counts of assault and one count of breaching a police family violence order. The assaults were perpetrated against the respondent's partner and constituted family violence. The sentence consisted of an order pursuant to s 7(f) of the Sentencing Act 1997 that, without recording a conviction, the proceedings be adjourned for two years and the respondent be released on his undertaking that he would be of good behaviour in that period and appear for conviction and sentence if called upon, and further that he was to complete the Men's Behaviour Change Program with Relationships Australia, and, if called upon to do so, provide proof of completion.
The applicants seek a review of this sentence. The sole ground of review is that the sentence imposed is manifestly inadequate in all of the circumstances.
According to the facts read by the prosecutor to the court without dispute from the respondent, the first assault occurred on 20 February 2017. The respondent and his partner were then, and still are, in a significant relationship and have twin children aged 2½ years. The assault took place during the course of an argument between them. It commenced while they were changing the children's nappies in the lounge room of their home. During the course of the argument, the respondent punched his partner to her head on a number of occasions. When she fell to the floor, he grabbed her throat with his hand and covered her mouth with his other hand. He held her like this for approximately 30 seconds. When she broke free, he grabbed her again to her throat and mouth and held her for another 30 seconds. On both occasions, his hold around her neck and mouth caused restriction of her breathing. She suffered bruising to her left eye, breast and…

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 Rittman

Details

AGLC: Moore v Rittman [2018] TASSC 5
Case: [2018] TASSC 5
Decision Date: 13 February 2018

CaseChat Overview and Summary

The matter of Moore v Rittman involved the appellant, Moore, who sought a review of a decision by the respondent, Rittman, being the sentencing magistrate. Moore was convicted of a series of family violence offences. The primary issue before the court was whether the magistrate's decision not to record a conviction for Moore's first-time family violence offences was manifestly inadequate. The court was also required to determine if the magistrate's approach to sentencing, which emphasised rehabilitation over punitive measures, was within the bounds of judicial discretion.

The court held that the decision not to record a conviction for Moore's first-time family violence offences was not manifestly inadequate. The court found that the magistrate had exercised a proper discretion by considering the rehabilitative approach suitable for Moore. The court noted that the magistrate had taken into account Moore's background, the nature of the offences, and the potential for rehabilitation. The court further held that the magistrate's decision to not record a conviction was not so unreasonable that no reasonable magistrate could have made it. The court found that the sentencing process had been fair and that the magistrate's decision was consistent with the principles of justice and the objectives of sentencing.

The court dismissed the motion to review the magistrate's decision. The court found that the magistrate had not erred in law or in fact and that the decision was not manifestly inadequate. The court concluded that the magistrate had exercised his or her discretion appropriately, taking into account the principles of sentencing and the need for a rehabilitative approach. The court found that the decision to not record a conviction was within the bounds of judicial discretion and that the review was accordingly dismissed.

Orders