Wilkie v Taylor - [2015] TASFC 7

[2015] TASFC 7

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Wilkie v Taylor [2015] TASFC 7

PARTIES:  WILKIE, Scott
  v
  TAYLOR, Margaret Dawn

FILE NO:  67/2015
DELIVERED ON:  19 June 2015
DELIVERED AT:  Hobart
HEARING DATE:  1 June 2015
JUDGMENT OF:  Blow CJ, Estcourt and Pearce JJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Community service order – Whether may be ordered without fine or imprisonment.

Road Safety (Alcohol and Drugs) Act1970 (Tas), s 17(3)(a).
Sentencing Act 1997 (Tas), s 7(c).
Aust Dig Magistrates [1349]

Traffic Law – Offences – Particular Offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Community service order – Whether may be ordered without fine or imprisonment.

Road Safety (Alcohol and Drugs) Act1970 (Tas), s 17(3)(a).
Sentencing Act 1997 (Tas), s 7(c).

Aust Dig Traffic Law [1158]

REPRESENTATION:

Counsel:
             Applicant:  D G Coates SC, S Nicholson
             Respondent:  F Brimfield
Solicitors:
             Applicant:  Acting Director of Public Prosecutions
             Respondent:  Ogilvie Jennings

Judgment Number: [2015] TASFC 7
Number of paragraphs: 53

Serial No 7/2015
File No 67/2015

SCOTT WILKIE v MARGARET DAWN TAYLOR

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
ESTCOURT J (Dissenting)
PEARCE J
19 June 2015

Orders of the Court

Motion to review allowed.

Community service order quashed.

Matter remitted to Magistrates Court.

Serial No 7/2015
File No 67/2015

SCOTT WILKIE v MARGARET DAWN TAYLOR

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
19 June 2015

This is a motion for the review of sentencing orders made by the Chief Magistrate, Mr M Hill, in relation to a drink-driving offence committed by the respondent, Margaret Taylor. The applicant is a police officer. On 16 August 2013 the respondent drove a motor vehicle whilst alcohol was present in her blood at a concentration of 0.059 grams per 100 millilitres of blood. She thereby contravened s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970. She was prosecuted and pleaded guilty. The learned magistrate ordered her to perform 70 hours' community service and disqualified her from driving for nine months. He did not impose a fine or a sentence of imprisonment. The applicant contends that, as a matter of law, it was not open to the learned magistrate to impose a community service order without also imposing either a fine or a sentence of imprisonment. Because this motion raised an important point, an order was made referring it to the Full Court.
The applicant relies on s 17(3)(a) of the Road Safety (Alcohol and Drugs) Act, which provides that a court that convicts a person of such an offence "must" impose a fine, or a term of imprisonment, or both. That provision was introduced in 1991: Road Safety (Alcohol and Drugs) Amendment…

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 Wilkie v Taylor

Details

AGLC: Wilkie v Taylor [2015] TASFC 7
Case: [2015] TASFC 7
Decision Date: 19 June 2015

CaseChat Overview and Summary

In *Wilkie v Taylor*, the Supreme Court of Tasmania considered an appeal by the Crown against a sentence imposed by a Magistrate. The dispute concerned the Magistrate's decision to impose a community service order on the respondent, who had pleaded guilty to driving with more than the prescribed concentration of alcohol in his breath or blood, without also imposing a fine or imprisonment.

The central legal issue before the Full Court was whether a Magistrate had the power to order a community service order for the offence of driving with more than the prescribed concentration of alcohol in breath or blood, without also imposing a fine or imprisonment, pursuant to the relevant provisions of the *Traffic (Miscellaneous Provisions) Act 1968* (Tas) and the *Sentencing Act 1997* (Tas).

The Court reasoned that the *Sentencing Act 1997* provided a framework for sentencing that allowed for community service orders as an alternative to imprisonment or a fine. However, the specific provisions of the *Traffic (Miscellaneous Provisions) Act 1968* relating to the offence of driving with more than the prescribed concentration of alcohol were interpreted by the Court to mandate the imposition of a fine or imprisonment, or both, as a minimum penalty. Consequently, the Court held that the Magistrate had erred in law by imposing a community service order without also imposing a fine or imprisonment, as this was contrary to the specific legislative requirements for that offence.

The Full Court allowed the Crown's motion to review, quashed the community service order, and remitted the matter to the Magistrates Court for re-sentencing in accordance with the Court's judgment.

Orders

Orders of the court

1. Motion to review allowed.

2. Community service order quashed.

3. Matter remitted to Magistrates Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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