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Wilkie v Taylor [2015] TASFC 7 (Majority Judges (Pearce J (Agrees with…
Wilkie v Taylor [2015] TASFC 7
Majority Judges
Pearce J
Agrees with Estcourt J on Community service order being imposed, but not as a substitute
Agrees with Blow CJ on ruling
Motion to Review
Blow CJ
s12 does not apply, as imprisonment is not only penalty available, thus community service cannot be imposed as a substitute for mandatory sentencing
Motion to Review
Key Issue
Can a
community service order
be imposed under
s7(c) of Sentencing Act
as
substitute
for mandatory imprisonment under
s17(3)(a) of Road Safety (Alcohol and Drugs) Act
?
s17(3)(a) Road Safety (Alcohol and Drugs) Act -
Mandatory fine or imprisonment
s15(5) Road Safety (Alcohol and Drugs) Act -
lesser fine available subject to 'special circumstances'
Kaye v Vagg (No 2) (1884) 11 A Crim R 127 -
Never to impose a fine the offender cannot pay
s12 Sentencing Act -
impose non-custodial sentence if imprisonment is only penalty left and inappropriate
Final Decision
A community service order can not be imposed as a substitute for mandatory imprisonment
Minority Judges
Estcourt J
s12 of Sentencing Act applies as special condition rules out fine, making imprisonment only sentence, allowing non-custodial sentence of community service order as a substitute.
Motion to dismiss