TAB v Moore - [2017] TASSC 65

[2017] TASSC 65

COURT: SUPREME COURT OF TASMANIA

CITATION: TAB v Moore [2017] TASSC 65

PARTIES:  TAB
  v
  MOORE, Luke

FILE NO:  2638/2017
DELIVERED ON:  10 November 2017
DELIVERED AT:  Launceston
HEARING DATE:  8 November 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentence – Indecent assault of six year old female by adult male with moderate intellectual disability – Sentence of three months' imprisonment with six weeks suspended not manifestly excessive.

Criminal Code (Tas), s 127(1).
Aust Dig Magistrates [1349]

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Intellectually handicapped offender.

Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1, applied.
Aust Dig Criminal Law [3265]

REPRESENTATION:

Counsel:
             Applicant:  J Ker
             Respondent:  S Thompson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 65
Number of paragraphs: 23

Serial No 65/2017
File No 2638/2017

TAB v LUKE MOORE

REASONS FOR JUDGMENT PEARCE J

10 November 2017

The applicant moves to review a sentence imposed by a magistrate, Mr S Brown. The applicant was charged on complaint with two counts of indecent assault. Each count concerned a different complainant. The applicant elected to be tried summarily. The complaint was heard by the magistrate who, for reasons given on 20 July 2017, found one count proved. The other count was dismissed. On 24 August 2017 the applicant was sentenced to imprisonment for three months, six weeks of which were suspended for 18 months, subject to the condition imposed by the Sentencing Act 1997, s 24(1), that the applicant does not commit another offence punishable by imprisonment during the period the order is in force. An order was made under the Community Protection (Offender Reporting) Act 2005 that the applicant's name be placed on the register and that he comply with the reporting obligations under that Act for five years from his release.
The sole ground of the motion is that the sentence is manifestly excessive. The applicant does not contend that a sentence of imprisonment of the term imposed was, of itself, manifestly excessive. The issue central to the outcome of the motion is whether the learned sentencing magistrate erred by requiring the applicant to immediately serve some of the sentence, rather than wholly suspending it. For the reasons which follow, I am not satisfied that the failure to suspend all of the term made the sentence manifestly excessive. The motion must therefore be dismissed.
The facts on which sentence was imposed emerge from the magistrate's sentencing remarks. They are to be read with his Honour's findings after the hearing. At the time of the offence the applicant was aged 26. For a period of about four to six months leading up to about 13 December 2014 he lived with his cousin, who I will call S, her two children and her partner…

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 TAB v Moore

Details

AGLC: TAB v Moore [2017] TASSC 65
Case: [2017] TASSC 65
Decision Date: 10 November 2017

CaseChat Overview and Summary

The case of TAB v Moore was heard in the Magistrates Court of Tasmania. The appellant, Moore, was convicted of indecently assaulting a six-year-old female. Moore, who has a moderate intellectual disability, was sentenced to three months' imprisonment with six weeks suspended. TAB sought a review of the sentence, contending that it was manifestly excessive. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, considering the nature of the offence and Moore's intellectual disability.

The court considered the principles of sentencing and the need to balance the seriousness of the offence with the offender's personal circumstances. The court found that the sentence was not manifestly excessive. The court acknowledged Moore's intellectual disability and the impact it had on his understanding and culpability. However, the court also considered the gravity of the offence, which involved the indecent assault of a young child. The court held that the sentence was appropriate, taking into account the need for deterrence and the protection of the community.

In reaching its decision, the court emphasised that the sentencing judge had carefully considered the relevant factors and had exercised their discretion appropriately. The court noted that the sentence was not the maximum penalty available for the offence, and that it allowed for some flexibility to address Moore's particular circumstances. The court concluded that the sentence was not manifestly excessive and dismissed the motion for review.

The court did not make any further orders beyond dismissing the motion to review the sentence.

Orders