Precedent Analysis: Wilkie v Taylor [2015] TASFC 7, 71 MVR 239

Precedent Analysis: Wilkie v Taylor [2015] TASFC 7, 71 MVR 239

Cited By

Bonde v White [2017] TASSC 30

Parker v Stebbings [2017] TASSC 28

Key Issues & The Final Decision on These

Ratio Decidendi

Obiter Dicta

Minority Judgements

Judges' Reasoning

The learned magistrate convicted Taylor of drink driving and imposed a community service order pursuant to s7(c) of the Sentencing Act. The issue is whether is was open to him to do so without imposing either a fine or a term of imprisonment.

Chief Justice Blow
25. For these reasons I would allow the motion to review, quash the community service order, and remit the matter to the Magistrates Court for completion of the sentencing process. In my view there is no reason to disturb the driving disqualification order made by the learned
magistrate. There is no reason why the completion of the sentencing process should not be undertaken by the same magistrate.

Justice Estcourt
51. I would dismiss the motion.

Justice Pearce
52. I agree with the Chief Justice. For the reasons given by him, the motion to review must be allowed. I also agree with the other orders his Honour proposes.

Chief Justice Blow
24. The result is that a magistrate now may not impose a community service order upon a drink-driving offender unless he or she also imposes a fine and/or a sentence of imprisonment, which may be suspended. Unless s 17(5) applies, any such fine might have to be one that is far beyond the offender's reasonable capacity to pay. That state of affairs may well be considered unsatisfactory, but that is the effect of the legislation that Parliament has chosen to pass

Justice Estcourt
50. The argument that s 17(3) of the Act displaces s 7(c) of the Sentencing Act because the former section, by the use of the word "must", mandates a sentence of imprisonment and imprisonment only, would be far more persuasive if s 17(3) specified a minimum sentence. As it does not, the words in s 7 of the Sentencing Act prefacing the range of available sentencing orders, namely "subject to any enactment relating specifically to the offence", are in their operation no different in the case of s 17(3) of the Act than in the case of any provision in any Act that specifies imprisonment as an available penalty and
sets a maximum period of years for such imprisonment but does not specifically exclude community service as a sentencing option.

Justice Pearce
53. Section 17(3)(a) of the Road Safety (Alcohol and Drugs) Act 1970 does not mean that a court may not make a community service order when sentencing for an offence specified in column 1 of the Table to the section. A community service order can be made because each such offence is punishable by imprisonment: Sentencing Act 1997, s 7(c). Section 17(3)(a) does mean, however, that a court making a community service order must also impose either a fine of at least the minimum amount or a sentence of imprisonment. In addition, s 17(3)(b) requires disqualification from driving for at least the minimum period. If the offence is not serious enough to require a sentence of imprisonment a fine must be imposed. If the offence is serious enough to warrant a sentence of imprisonment then any such sentence may be wholly or partly suspended. If a fine is insufficient to reflect the seriousness of the offence, but the court does not wish to impose a sentence of imprisonment, the sentencing order may include community service. Whether a convicted person is fined or sentenced to imprisonment, a probation order may also be made: Sentencing Act, s 8. It is only when special circumstances are established that less than the minimum fine or period of disqualification may be imposed: s 17(5).

Chief Justice Blow Section 1, 2, 4, 5, 8 - 25

Chief Justice Blow Section 3, 6, 7

Justice Estcourt Section 26 - 29, 35 - 51

Justice Estcourt Section 30-35

Justice Pearce Section 52, 53

Justice Estcourt ruled to dismiss the motion and was the minority opinion. He focussed a lot on the wording of the different Acts being scrutinised and decided that the learned magistrate made the correct decision.

38. In my view, the short answer to the applicant's argument is that if s 17(3) of the Act mandates a term of imprisonment, when a fine alone is not appropriate and thus displaces s 7(c) of the Sentencing Act so that s 17(3) has, at that point, imprisonment as its only penalty, then, at that point, the offence becomes a "custodial offence" within the meaning of s 12 of the Sentencing Act. That is so because the offence is then one which can be properly described in the terms of s 12 as an offence that is created under an enactment and has imprisonment as its only penalty. As such, a court is empowered by s 12, if it is of the view that the justice of the case will be better met by a non-custodial sentence than by imprisonment, to make any other sentencing order that it could have made in respect of the offender had the offence not been a custodial offence. Section 12 provides that is so "notwithstanding the penalty provided for the offence" in the other Act. I accept the submission of counsel for the respondent, Mr Brimfield, on this point.
39. It would make a mockery of the egregiously clear objective of mitigation of imprisonment promoted by s 12 of the Sentencing Act, and indeed by s 7(c) of that Act as well, if an offence such as that which is the subject of this motion to review, could not be characterised as a "custodial offence" merely because some other less serious example of the offence, but not the offence under consideration, might attract the lesser penalty of a fine. It is important to note that s 12 defines a "custodial offence" as one that has imprisonment as its only penalty. It does not state that the enactment must be one that specifies or provides for imprisonment as the only penalty in any instance of the offence. The word has is ambulatory.
40. It is unnecessary and would be unduly restrictive of the explicit objective in s 12 and s 7(c) of the Sent encing Act to mitigate imprisonment, to construe the word "offence" in the definition of "custodial offence" in s 12 as meaning every example of the offence created by the enactment concerned, and not just those cases under s 17(3) of the Act meriting imprisonment and not a fine.