Moore v Salter - [2018] TASSC 18

[2018] TASSC 18

COURT: SUPREME COURT OF TASMANIA

CITATION: Moore v Salter [2018] TASSC 18

PARTIES:  MOORE, Luke (Senior Sergeant)
  BONDE, Mike (1/Constable
  GOSS, Ashlee (Acting Sergeant)
  BARWICK, Kerryne Amanda
  v
  SALTER, Michael John

FILE NO:  LCA 2869/2017
DELIVERED ON:  24 April 2018
DELIVERED AT:  Hobart
HEARING DATES:  1 March 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Orders and convictions – Sentence – Other miscellaneous orders – Suspended sentence of imprisonment – Whether "unjust" to activate suspended sentence – Respondent breached the terms of suspension on numerous occasions by committing a variety of offences over a period of approximately six months and showed a flagrant disregard for the terms of the suspended sentence – Magistrate erred by concluding it was unjust to activate the suspended sentence – Suspended sentence activated.

Sentencing Act 1997 (Tas), s27.
Justices Act 1959 (Tas), s 110(2A), (2AA) and (2AB).
Cannell v Hughes [2014] TASSC 41, followed.
Tanner v Brown [2011] TASSC 59; R v Hayes (1987) 29 A Crim R 452, cited.
Aust Dig Magistrates [1239].

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against sentence – Crown alleged sentence manifestly inadequate – Magistrate imposed probation order for a number of varied offences – Magistrate misjudged the respondent's prospects of rehabilitation – Magistrate erred in exercise of sentencing discretion – Sentence should have also emphasised specific and general deterrence – Probation order was manifestly inadequate.

Cannell v Hughes [2014] TASSC 41, cited.
Aust Dig Magistrates [1349]

Traffic Law – Offences – Procedure – Sentence and penalty – Crown alleged period of disqualification was manifestly inadequate – Magistrate focused on rehabilitation – Period of disqualification as part of overall sentence not manifestly inadequate.

Road Safety (Alcohol and Drugs) Act1970 (Tas), s 17.
Simon-Brown v Richardson [2011] TASSC 62, cited.
Aust Dig Traffic Law [1217]

REPRESENTATION:

Counsel:
             Applicants:  S Thompson
             Respondent:  F McCracken
Solicitors:
             Applicants:  Director of Public Prosecutions
             Respondent:  Grant Tucker

Judgment Number: [2018] TASSC 18
Number of paragraphs: 52

Serial No 18/2018
File No LCA 2869/2017

SENIOR SERGEANT LUKE MOORE, 1/CONSTABLE MIKE BONDE,
ACTING SERGEANT ASHLEE GOSS and KERRYNE AMANDA BARWICK
v MICHAEL JOHN SALTER

REASONS FOR JUDGMENT BRETT J

24 April 2018

This motion to review relates to sentencing orders made by Magistrate S Cure on 25 September 2017. On that day, her Honour imposed sentences on the respondent with respect to a number of offences committed between 16 August 2016 and 13 March 2017. The respondent had pleaded guilty to each of the offences. They included family violence offences, assault, offences related to the unlawful possession of a firearm, injuring property and three counts of driving a motor vehicle with a prescribed illicit drug present in blood. In respect of the three driving offences, her Honour imposed a global wholly suspended sentence of four months' imprisonment, and a driving disqualification for a period of nine months. In respect of the balance…

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 Salter

Details

AGLC: Moore v Salter [2018] TASSC 18
Case: [2018] TASSC 18
Decision Date: 24 April 2018

CaseChat Overview and Summary

In the case of Moore v Salter, the respondent had been convicted of a number of offences and was sentenced to a suspended sentence of imprisonment. The matter came before the court for consideration of whether it was unjust to activate the suspended sentence, given that the respondent had breached the terms of the suspension on multiple occasions by committing further offences over a period of approximately six months. The respondent displayed a clear disregard for the terms of the suspended sentence, leading to the court's review of the magistrate's decision to not activate the sentence.

The central legal issue before the court was whether the magistrate had erred in determining that it was unjust to activate the respondent's suspended sentence of imprisonment. The court needed to assess the respondent's conduct in light of the breaches of the suspended sentence and determine whether the decision to maintain the sentence as suspended was appropriate. The court had to weigh the respondent's repeated offending and disregard for the conditions of the suspended sentence against the principle that a suspended sentence should only be activated if it is considered unjust not to do so.

The court found that the magistrate had erred in concluding that it was unjust to activate the respondent's suspended sentence. The respondent's conduct demonstrated a flagrant disregard for the conditions of the suspended sentence, which undermined the purpose of the sentence. The court held that the repeated breaches and the respondent's persistent offending indicated that it was not unjust to activate the suspended sentence of imprisonment. Consequently, the court determined that the suspended sentence should be activated, and the respondent should serve the previously imposed sentence of imprisonment.

The final orders of the court were that the magistrate's decision not to activate the suspended sentence be quashed, and the respondent's suspended sentence of imprisonment be activated. The respondent was therefore required to serve the previously imposed sentence, reflecting the court's view that the magistrate's decision was erroneous in not recognising the respondent's persistent offending and disregard for the conditions of the suspended sentence.

Orders