Tubbs v Pomykaj

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TUBBS -v- POMYKAJ [2009] WASC 379



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2009] WASC 379
Case No:SJA:1017/2009ON THE PAPERS
Coram:McKECHNIE J11/12/09
8Judgment Part:1 of 1
Result: Appeals allowed
Convictions set aside and other convictions substituted
New fines imposed
B
PDF Version
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 :…
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Details
Case
[2009] WASC 379
Decision Date

CaseChat Overview and Summary

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.

Orders

Orders of the court

Appeals allowed

Convictions set aside and other convictions substituted

New fines imposed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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