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Wilkie v Taylor [2015] TASFC 7; MVR 239 (CJ Blow (Overall conclusions:…
Wilkie v Taylor [2015] TASFC 7; MVR 239
Pearce J
His Honour agreed with the reasons of Blow CJ, stating that:
For the reasons given by him, the motion to review must be allowed. I also agree with the other orders his Honour proposes.
Outline of the Appeal:
The Appeal was made in review of the sentencing orders made by a magistrate regarding the respondent, Margaret Taylor. The offence concerned a drink driving violation and specifically concerned the necessity of implementing a term of imprisonment or alternatively, a fine when a community service order is imposed.
The main issue under consideration was whether the Magistrate who initially imposed the order could sentence the offender to a community service order without also imposing either a term of imprisonment (to be served to deferred) or also a fine.
Estcourt J (Dissenting Judgement)
Main arguments proposed:
Road Safety (Drugs and Alcohol) Act
1970 as at Section 17(3).
Sentencing Act as at Section 7(c).
Overall conclusions:
His Honour states that Section 17 was unable to be displaced by Section 7.
Whilst a fine was not imposed, and that imprisonment was the only alternative, section 7 was not supported as per the circumstances and therefore, his Honour stated that the Magistrate could in fact order a community service order and not either a fine or term of imprisonment in conjunction with same.
Confirmed the mitigation influence against "harsh punishment" regarding custodial offences, however section 17 was not a custodial offence as per the circumstances.
His Honour agrees with CJ Blow regarding this section imposition in the matter, stating that section 12 of the Sentencing Act will not apply to other Acts of Sections thereof merely because all other alternatives to imprisonment are eliminated.
Sentencing Act as at Section 12.
CJ Blow
Road Safety (Drugs and Alcohol) Act
1970 as at Section 17(3).
The offence of drink driving and the penalties thereof is created.
A fine or a term of imprisonment can be imposed depending on the severity of the offence and the previous criminal history of the offender.
The implications of the
Sentencing Act
1997 (Tas) were not considered in detail by his Honour.
Overall conclusions:
That a fine or imprisonment must be imposed when the offender is ordered to term a community service order.
The word "Must" used within section 17(3)(a), meaning that either a fine or term of imprisonment must be imposed, prevail the imposition of section 7(c) of the
Sentencing Act
1997 (Tas).
The matter was referred to the Magistrates court to complete the sentencing process. His Honour effectively quashed the community service order as either a fine or term of imprisonment were not imposed.