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Wilkie v Taylor [2015] TASFC (Judges (Blow CJ (Reasoning (Judgement (To…
Wilkie v Taylor
[2015] TASFC
Judges
Blow CJ
Reasoning
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.
Judgement
To allow the motion to review
Estcourt J
Reasoning
Nowhere does s 17(3) mandate imprisonment in any given case. It merely provides that imprisonment is a sentencing option. So that when a magistrate is considering his or her sentencing options and the offender is over 18 and the offence is punishable by imprisonment then a community service order may be imposed.
Judgement
To dismiss the motion
Pearce J
Reasoning and Judgement
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.
Judgement
To allow the motion to review
Key issues at stake
• Section 17(3)(a) of the Road Safety (Alcohol and Drugs) Act, provides that a court that convicts a person of such an offence "must" impose a fine, or a term of imprisonment, or both.
• Magistrate did not impose a fine or a sentence of imprisonment, and 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’.
• It was open to the learned magistrate to convict offender and make a community service order pursuant to s 7(c). The issue was whether it was open to him to do so without imposing either a fine or a term of imprisonment.
Obiter dicta
• There is nothing in those provisions or the second reading speech to suggest that s 7(c) should be regarded as modifying or otherwise having any impact upon s 17(3)(a) of the Road Safety (Alcohol and Drugs) Act.
Ratio decidendi
‘Each offence against s 6A(1) attracts the mandatory minimum penalties provided for by s 17 of the RSAD Act. A Table of Penalties is set out at the end of s 17. Section 17(3) governs the application of the Table. Section 17(3) of that Act is mandatory’.