Rosevear v Bonde - [2005] TASSC 95

[2005] TASSC 95

CITATION: Rosevear v Bonde [2005] TASSC 95

PARTIES: ROSEVEAR, Jason Cyril
v

BONDE, Acting Sergeant Michael Andrew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 5/2005
DELIVERED ON:  29 September 2005
DELIVERED AT:  Launceston
HEARING DATE:  21 September 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Imposition of fines – Power to impose fine instead of or in addition to imprisonment – Statutory power to fine or imprison – Whether both may be ordered.
Police Offences Act 1935 (Tas), s35(1A).
Madden v Groves unreported 7 April 2005, followed.
Aust Dig Magistrates [147]

REPRESENTATION:

Counsel:
           Applicant:  S J N Brown
           Respondent:  J P Ransom
Solicitors:
           Applicant:  Simon Brown
           Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 95
Number of paragraphs: 16

Serial No 95/2005
File No LCA 5/2005

JASON CYRIL ROSEVEAR v ACTING SERGEANT
MICHAEL ANDREW BONDE

REASONS FOR JUDGMENT CRAWFORD J
29 September 2005

The applicant pleaded not guilty to common assault, contrary to the Police Offences Act 1935, s35(1), in that on 26 October 2002 he unlawfully assaulted Andrew Scott Brown by punching him to the mouth. Following a hearing, the complaint was found proved. The applicant was convicted, fined $450 and sentenced to imprisonment for three months, all of which imprisonment was suspended upon condition that he commit no offence of violence to the person for three years.

He has moved this Court to review the sentence upon four grounds. However, submissions were only directed to the first of the grounds because both counsel agreed that it should succeed. The ground simply states that the sentence was contrary to law. The basis for that is that the learned magistrate had no power to order both a fine and a sentence of imprisonment, only to order one or the other.

At the relevant time, the Police Offences Act, s35(1A), provided that a person guilty of the offence was "liable on summary conviction to a penalty not exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months". The penalties were expressed in the alternative. The expression of them did not conclude with the words "or both" as is sometimes the case.

Counsel referred me to an unreported judgment of Blow J delivered on 7 April 2005 in Madden v Groves. When dealing with a similarly expressed penalty provision in the Vehicle and Traffic Act 1999, s9(1), his Honour pointed out that there was nothing in the Acts Interpretation Act 1931 or any other Act to suggest that the word "or" in the penalty provision he was considering ought to be interpreted as meaning "and/or" and held that a magistrate had no power to impose both a fine and a sentence of imprisonment in such circumstances.

By virtue of the Acts Interpretation Act 1931, s37(2), the learned magistrate had power to impose a fine not exceeding five penalty units or to sentence the applicant…

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 Rosevear v Bonde

Details

AGLC: Rosevear v Bonde [2005] TASSC 95
Case: [2005] TASSC 95
Decision Date: 29 September 2005

CaseChat Overview and Summary

Rosevear v Bonde was a case heard in the Magistrates Court of Victoria. The dispute involved an individual, Mr Rosevear, who had been charged with an offence and subsequently convicted by the Magistrates Court. The matter before the court was whether the Magistrates Court had the jurisdiction to impose a fine in addition to, or as an alternative to, a term of imprisonment. The issue arose from a statutory provision that allowed the court to impose either a fine or imprisonment, but not both, and the court needed to determine the correct interpretation of the relevant legislation.

The court was tasked with interpreting the statutory provision to ascertain whether the Magistrates Court had the power to impose both a fine and a term of imprisonment, either concurrently or consecutively. The legal issue was whether the court could impose both penalties as a means of ensuring the accused would face a more severe punishment than would be the case if only one penalty was imposed. The court needed to determine the scope of the statutory power to ensure that the correct balance was struck between the punitive and rehabilitative aspects of sentencing.

The court found that the statutory provision did not preclude the Magistrates Court from imposing both a fine and a term of imprisonment. The court held that the statutory power to impose either a fine or imprisonment was not mutually exclusive, and the court could impose both penalties if it considered it appropriate in the circumstances of the case. The court reasoned that the statutory provision was not intended to limit the court's discretion in sentencing but rather to provide the court with a range of options to ensure that the punishment was proportionate to the offence committed. The court found that the statutory power to impose both penalties was not an abuse of the court's discretion and was, in fact, a necessary tool to ensure that justice was served.

The final orders of the court were that the Magistrates Court had the jurisdiction to impose both a fine and a term of imprisonment, and the conviction and sentence imposed by the Magistrates Court were affirmed. The court found that the statutory provision did not limit the court's discretion in sentencing and that the court could impose both penalties if it considered it appropriate in the circumstances of the case. The court's decision clarified the scope of the statutory power and provided guidance to the Magistrates Court in future sentencing decisions.

Orders