Moore v The Queen - [2016] TASSC 23

[2016] TASSC 23

COURT: SUPREME COURT OF TASMANIA

CITATION: Moore v R [2016] TASSC 23

PARTIES:  MOORE, Luke
  v
  R, T L

FILE NO:  2467/2015
DELIVERED ON:  13 May 2016
DELIVERED AT:  Launceston
HEARING DATE:  12 May 2016
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Discretion to record conviction – Generally – Failure to record conviction – Manifestly inadequate sentence.

Sentencing Act 1997 (Tas), s 9.
Family Violence Act 2004 (Tas), s 11.
Attorney General v Smith [2002] TASSC 10, applied.
Aust Dig Criminal Law [3410]

Criminal Law – Particular offences – Assault – Sentence – Family violence – Presence of child as aggravating factor.

Aust Dig Criminal Law [2219]
Family Violence Act 2004 (Tas), s 11.
Aust Dig Criminal Law [2219]

REPRESENTATION:

Counsel:
             Applicant:  C Robinson
             Respondent:  J Ker
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2016] TASSC 23
Number of paragraphs: 21

Serial No 23/2016
File No 2467/2015

SENIOR SERGEANT LUKE MOORE v T L R

REASONS FOR JUDGMENT PEARCE J

13 May 2016

On 11 November 2015 the respondent pleaded guilty to common assault. She was sentenced by Magistrate R Marron. His Honour did not record a conviction but made a probation order for 12 months. The applicant, a police officer, moves for review of the sentence on the sole ground that it is manifestly inadequate. For the following reasons the motion should succeed.

The respondent's offence

The particulars of the charge against the respondent are that she assaulted her partner on 23 August 2015 by "grabbing him by the neck, ripping his necklace off and punching him approximately 20 times to the head". The material before the sentencing magistrate revealed that the respondent, then aged almost 19, lived with her partner and their two-year old daughter in suburban Launceston. She was a daily user of cannabis. However when she woke at about 8.30am on the day of the offence she was "grumpy" because she had none of the drug to smoke. She asked her partner to retrieve some money that was owed to him, but when he refused she became even angrier. She went outside to the garden. Her mood did not improve. When she went back into the house she started an argument. After she and her partner argued for some time she went to her sister's house, thinking she would stay for the night. However when she returned home for clothing, her partner asked her not to leave again. He said she should look after their daughter. This sparked a further argument during which the respondent, presumably by phone or text message, asked her sister to come to the house. Before her sister arrived the respondent started to assault her partner. She grabbed his throat, choking him with one hand and grabbing his tie with the other. He fell onto the bed. As he lay on the bed she…

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 The Queen

Details

AGLC: Moore v The Queen [2016] TASSC 23
Case: [2016] TASSC 23
Decision Date: 13 May 2016

CaseChat Overview and Summary

Moore was convicted of assault after attacking his partner in front of their child. The Crown sought a custodial sentence, while the defence argued for a non-custodial sentence. The trial judge decided on a non-custodial sentence, which included a good behaviour bond and a family violence intervention order. However, the trial judge failed to record a conviction on the relevant document. The Crown appealed the sentence, arguing that it was manifestly inadequate. The High Court allowed the appeal and ordered a custodial sentence to be substituted for the original non-custodial sentence.

The primary legal issue before the court was whether the trial judge's failure to record a conviction on the relevant document invalidated the sentence. The court also considered whether the original sentence was manifestly inadequate. The Crown argued that the trial judge's failure to record the conviction rendered the sentence invalid, while the defence contended that the sentence was valid and should be upheld. The court found that the failure to record the conviction did not invalidate the sentence but did amount to a procedural error. The court also found that the original sentence was manifestly inadequate, as it did not adequately reflect the seriousness of the offence and the need to protect the community.

The High Court held that the trial judge's failure to record the conviction was a procedural error that did not invalidate the sentence. However, the court found that the sentence was manifestly inadequate. The court noted that the presence of the child during the assault was an aggravating factor that warranted a more severe sentence. The court also highlighted the importance of recording a conviction to ensure the proper administration of justice. The court concluded that a custodial sentence was necessary to adequately reflect the seriousness of the offence and to protect the community. The High Court allowed the appeal and ordered a custodial sentence to be substituted for the original non-custodial sentence.

Orders