TUBBS -v- POMYKAJ [2009] WASC 379

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 379
Case No:	SJA:1017/2009	Heard:	ON THE PAPERS
Coram:	McKECHNIE J	Delivered:	11/12/09
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeals allowed Convictions set aside and other convictions substituted New fines imposed
Category:	B
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Parties:	DAVID CHARLES TUBBS KARINA POMYKAJ CRAIG STRINGER REGAN DAVID BROMILOW JOHN COLQUHOUN TERRY CHARLES TAYLOR
Catchwords:	Road traffic Appellant treated as a third DUI offender when he was a second DUI offender Later convictions and sentence corrected
Legislation:	Road Traffic Act 1974 (WA)
Case References:	Brand v Vuleta [2005] WASCA 24 Brooks v Taylor (Unreported, WASC, Library No 960410, 31 July 1996) Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TUBBS -v- POMYKAJ [2009] WASC 379 CORAM : McKECHNIE J HEARD : ON THE PAPERS DELIVERED : 11 DECEMBER 2009 FILE NO/S : SJA 1017 of 2009 BETWEEN : DAVID CHARLES TUBBS

Appellant

AND

KARINA POMYKAJ

Respondent

FILE NO/S : SJA 1019 of 2009 BETWEEN : DAVID CHARLES TUBBS

Appellant

AND

CRAIG STRINGER

Respondent

FILE NO/S : SJA 1020 of 2009 BETWEEN : DAVID CHARLES TUBBS

Appellant

AND

REGAN DAVID BROMILOW

Respondent

(Page 2)

FILE NO/S : SJA 1110 of 2009 BETWEEN : DAVID CHARLES TUBBS

Appellant

AND

JOHN COLQUHOUN

Respondent

FILE NO/S : SJA 1111 of 2009 BETWEEN : DAVID CHARLES TUBBS

Appellant

AND

TERRY CHARLES TAYLOR

Respondent

(Page 3)

ON APPEAL FROM:

For File No : SJA 1017 of 2009

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S R MALLEY

Citation : FR 79885 of 1997

For File No : SJA 1019 of 2009

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P S MICHELIDES

Citation : FR 9948 of 1998

For File No : SJA 1020 of 2009

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S R MALLEY

Citation : FR 11960 of 2001

For File No : SJA 1110 of 2009

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : UNKNOWN

Citation : FR 1615 of 1987

For File No : SJA 1111 of 2009

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : UNKNOWN

Citation : FR 1631 of 1987

(Page 4)

Catchwords:

Road traffic - Appellant treated as a third DUI offender when he was a second DUI offender - Later convictions and sentence corrected

Legislation:

Road Traffic Act 1974 (WA)

Result:

Appeals allowed

Convictions set aside and other convictions substituted
New fines imposed

Category: B

Representation:

SJA 1017 of 2009

Counsel:

Appellant : Ms K J Farley

Respondent : Ms C J Thatcher

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

SJA 1019 of 2009

Counsel:

Appellant : Ms K J Farley

Respondent : Ms C J Thatcher

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

(Page 5)

SJA 1020 of 2009

Counsel:

Appellant : Ms K J Farley

Respondent : Ms C J Thatcher

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

SJA 1110 of 2009

Counsel:

Appellant : Ms K J Farley

Respondent : Ms C J Thatcher

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

SJA 1111 of 2009

Counsel:

Appellant : Ms K J Farley

Respondent : Ms C J Thatcher

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

(Page 6)

Case(s) referred to in judgment(s):

Brand v Vuleta [2005] WASCA 24
Brooks v Taylor (Unreported, WASC, Library No 960410, 31 July 1996)
Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132

(Page 7)

McKECHNIE J

What these appeals are about

1 The alertness of a police prosecutor, the industry of a Legal Aid lawyer, Ms Farley, and the research analysis and appropriate concessions by a State Solicitor, Ms Thatcher, have all combined to correct an injustice. The parties agree that I should decide the appeal on the papers.

2 On 10 October 1985 Mr Tubbs was sentenced as a second offender for driving under the influence of alcohol. He was fined and he was disqualified permanently from driving. That is when the trouble started. The fine was subsequently recalled and increased but the disqualification was left untouched. The permanent disqualification was appropriate to a third offender, not a second offender. This disqualification dogged him until a police prosecutor picked up the mistake and the Magistrates Court corrected it.

3 The magistrate would not alter other penalties imposed however; correctly observing that at the time there was no error in the penalties. So the appellant asks this court to correct a miscarriage of justice and the respondents' solicitor is content that I should do so.

4 There is a conflict in authority as to whether a permanent disqualification can be imposed for a second offence of driving under the influence: Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132; cf Brooks v Taylor (Unreported, WASC, Library No 960410, 31 July 1996); Brand v Vuleta [2005] WASCA 24. I do not need to resolve the inconsistency because the respondents concede there would have to be exceptional reasons to warrant such an extreme disqualification. Given the relative youth of the appellant in 1985 a permanent driver's licence disqualification was excessive.

5 The appellant has had an unfortunate traffic history including subsequent convictions for driving under suspension, for each of which he received a further mandatory period of licence disqualification.

6 On 23 October 2007, an alert prosecutor noted the anomaly in the appellant's record and applied under the Sentencing Act 1995 (WA) s 37 to rectify the penalty imposed on 10 October 1985 as well as subsequent sentences. The magistrate recalled the driving under the influence conviction of 10 October 1985, recalled the life disqualification and imposed a disqualification of two years, the mandatory minimum disqualification for a second offence. This disqualification took effect

(Page 8)

from 23 October 2007. This may be an intriguing use of power under s 37. The respondents expressly take no issue with the validity of the decision to recall the life disqualification. Following the application to rectify the sentence imposed on 10 October 1985 it is necessary to revisit many of the subsequent penalties. They are based on a misapprehension.

7 I have read the comprehensive submissions of the respondents. I agree with the concession. The convictions and sentences must be corrected.

Outcome

Appeal No	Date of offence	Outcome
1017 of 2009	8/7/97	Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $200)
1019 of 2009	1/6/99	Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $350)
1020 of 2009	15/8/02	Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $350)
1110 of 2009	26/2/87	Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $200)
1111 of 2009	26/2/87	Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $200)

8 In each case the appellant is also subject to a mandatory 3 month motor vehicle driver's licence disqualification under s 51(5a) of the Road Traffic Act 1974 (WA).

The appeal was heard by the Queensland Court of Appeal, with the appellant, Tubbs, challenging his treatment as a third DUI offender rather than a second. Tubbs argued that his previous convictions were not correctly recognised in the sentencing process, which resulted in an unfair penalty. The respondents, Pomykaj, were the representatives of the state who upheld the original conviction and sentencing. The court was tasked with determining whether Tubbs's status as a second DUI offender should have affected his sentence, and if the convictions and sentences were appropriately recorded.

The court examined whether the trial judge erred in failing to recognise Tubbs as a second DUI offender, which would have resulted in a lesser penalty. It also considered whether the convictions and sentences recorded were accurate and appropriate. The court found that the trial judge did indeed misapply the law by treating Tubbs as a third DUI offender, leading to an increased penalty. Additionally, the court determined that the convictions and sentences recorded were incorrect and needed to be rectified.

The court held that Tubbs should have been treated as a second DUI offender, which would have resulted in a lesser penalty. The court set aside the original convictions and substituted them with the correct convictions. It also imposed new fines on Tubbs, reflecting his status as a second DUI offender. The appeals were allowed, and the convictions and sentences were corrected accordingly.

The court ordered that Tubbs's convictions be set aside and substituted with the correct convictions. It also imposed new fines on Tubbs, reflecting his status as a second DUI offender. The appeal was allowed, and the original convictions and sentences were not upheld. The court's decision provided clarity on the correct application of the law in DUI cases and ensured that Tubbs was appropriately sentenced based on his actual offending history.

Tubbs v Pomykaj

TUBBS -v- POMYKAJ [2009] WASC 379

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established