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Tui v McLucas

Tui v McLucas

Case [2024] ACTSC 164 29 May 2024

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Tui v McLucas
Citation:	[2024] ACTSC 164
Hearing Date:	29 April 2024, 16 May 2024, 24 May 2024
Decision Date:	29 May 2024
Before:	Baker J
Decision:	(1) The appeal is allowed in part. (2) The appeal against the conviction and sentence imposed in the Magistrate’s Court is dismissed. The good behaviour order previously imposed by the Magistrate is confirmed. (3) The appeal against the disqualification period is allowed. The appellant will be disqualified from driving for a period of 20 months, to date from today.
Catchwords:	APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by Magistrates Court – error in Magistrate’s findings as to criminal history – error conceded by respondent – no lesser sentence appropriate in all of the circumstances – fine and good behaviour order confirmed. TRAFFIC LAW – Licensing of drivers – driving with prescribed concentration of alcohol – repeat offender – nature of default disqualification period – Court to undertake assessment of appropriate disqualification period in light of relevant sentencing purposes – legislative reduction of default disqualification period whilst appeal pending - disqualification period reduced.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 33(1) Criminal Appeal Act 1912 (NSW), s 6(3) Legislation Act 2001 (ACT), s 84A Magistrates Court Act 1930 (ACT), ss 208, 216, 218 Road Safety Legislation Amendment Act 2024 (ACT) Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19(1), 33, 26 Road Transport (General) Act 1999 (ACT), ss 63(3)(c), 65
Cases Cited:	Ayres v Ford [2016] ACTSC 204 Barnes v Barratt [2018] ACTSC 295 Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 Clarkson v Earle [2016] ACTSC 331 Irving v Head [2016] ACTSC 37; 75 MVR 13 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Krewaz v Jordan [2012] ACTSC 84 Kristiansen v Yeats [2022] ACTSC 351 Shaw v Leach [2014] ACTSC 135 Milner v Bonde [2018] TASSC 42; 28 Tas R 62 Morrison v Maher [2021] ACTSC 312 Mwauluka v Turkich [2013] ACTSC 1 Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; 61 NSWLR 305 R v Bonfield [2021] ACTSC 362 Senderowski v Mothersole [2013] ACTSC 217 Stoehr v Meyer [2016] ACTSC 144; 311 FLR 23 Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198
Texts Cited:	Explanatory Statement to the Road Transport Legislation Amendment Bill 2015 (No 2) (ACT) Explanatory Statement to the Road Safety Legislation Amendment Bill 2023 (ACT)
Parties:	Tsai Tui ( Appellant) Alison Leila McLucas ( Respondent)
Representation:	Counsel T Sharman ( Appellant) D Armstrong ( Respondent)
Solicitors Tim Sharman Solicitors ( Appellant) ACT DPP ( Respondent)
File Number:	SCA 62 of 2023
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 22 November 2023 Case Title: The Police v Tsai Tui Charge Number(s): CAN9582 of 2023

BAKER J:

Introduction

The appellant, Tsai Tui, pleaded guilty in the Magistrates…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tui v McLucas

Details

AGLC: Tui v McLucas [2024] ACTSC 164
Case: [2024] ACTSC 164
Decision Date: 29 May 2024

CaseChat Overview and Summary

In the case of Tui v McLucas, the appellant, Tui, appealed against the sentence imposed by the Magistrates Court. The nature of the dispute was the length of the disqualification period from driving that was imposed on Tui after being found guilty of driving with a prescribed concentration of alcohol. Tui, a repeat offender, was also subject to a good behaviour order. The respondent, McLucas, conceded that there was an error in the Magistrate’s findings regarding Tui’s criminal history, which was one of the legal issues the court had to decide. Another issue was whether the Magistrate had erred in not imposing a lesser sentence in all the circumstances.

The court considered that the Magistrate's findings about Tui’s criminal history were indeed erroneous. However, the court concluded that given the nature of the offence and Tui’s repeated breaches, no lesser sentence was appropriate. The court confirmed the good behaviour order previously imposed by the Magistrate. Regarding the disqualification period, the court found that the Magistrate had not undertaken the necessary assessment of the appropriate disqualification period in light of relevant sentencing purposes. The legislative reduction of the default disqualification period whilst the appeal was pending meant that the disqualification period was reduced. The court allowed the appeal against the disqualification period and ordered that Tui be disqualified from driving for a period of 20 months, to date from the day of the court’s decision. The appeal against the conviction and sentence was dismissed.

Orders

Orders of the court

(1) The appeal is allowed in part.

(2) The appeal against the conviction and sentence imposed in the Magistrate’s Court is dismissed. The good behaviour order previously imposed by the Magistrate is confirmed.

(3) The appeal against the disqualification period is allowed. The appellant will be disqualified from driving for a period of 20 months, to date from today.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Tui v McLucas [2024] ACTSC 164

Most Recent Citation

Thompson v Steele [2025] ACTSC 187

Cases citing this decision · 1 of 1 shown

Thompson v Steele
[2025] ACTSC 187

…Tui v McLucas [2024] ACTSC 164…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Morrison v Maher
[2021] ACTSC 312 Para 4

…g another penalty, may not be permissible under comparable appellate provisions in New South Wales. However, as Mossop J observed in Morrison v Maher [2021] ACTSC 312 at [37], the text of s 218 of the MCA (which differs from s 6(3) of the Criminal Appeal Act 1912 (NSW)) permits a court to “confirm, reverse or vary”…
Kristiansen v Yeats
[2022] ACTSC 351 Para 5

…at, error having been established, this Court must resentence the appellant: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Kristiansen v Yeats [2022] ACTSC 351 at [67]-[71]. I agree. The misreading of the appellant’s criminal history is a factual error, which had bearing on the “instinctive synthesis” of how…
R v Bonfield
[2021] ACTSC 362 Para 4

…ear that this aspect of the decisions in Barnes , or Clarkson , have been since considered by this Court.[2] [2] Barnes was cited in R v Bonfield [2021] ACTSC 362, but not on this issue.…
Barnes v Barratt
[2018] ACTSC 295 Para 2

…A different approach appears to have been taken by Penfold J in Barnes v Barratt [2018] ACTSC 295. In Barnes at [52] , Penfold J (following her Honour’s previous decision in Mwauluka v Turkich [2013] ACTSC 1 at [46]) held that: Unlike a maximum sentence specified for an offence, which would only be imposed for the…
Milner v Bonde
[2018] TASSC 42 Para 4

…hence the likelihood of conviction, punishment and licence disqualification. See also Krewaz v Jordan [2012] ACTSC 84 at [1] and Milner v Bonde [2018] TASSC 42; 28 Tas R 62 at [16].…
Clarkson v Earle
[2016] ACTSC 331 Para 1

…lcohol and Drugs Act was considered by Murrell CJ in Ayres v Ford [2016] ACTSC 204; Stoehr v Meyer [2016] ACTSC 144; 311 FLR 23; and Clarkson v Earle [2016] ACTSC 331 at [10] – [12], citing Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 (Refshauge J) and Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198 (Burns J).…
Ayres v Ford
[2016] ACTSC 204 Para 1

…ionship between the minimum and default disqualification periods under s 33 of the Alcohol and Drugs Act was considered by Murrell CJ in Ayres v Ford [2016] ACTSC 204; Stoehr v Meyer [2016] ACTSC 144; 311 FLR 23; and Clarkson v Earle [2016] ACTSC 331 at [10] – [12], citing Burow v Hoyer [2015] ACTSC 21; 292 FLR 325…
Stoehr v Meyer
[2016] ACTSC 144 Para 1

…efault disqualification periods under s 33 of the Alcohol and Drugs Act was considered by Murrell CJ in Ayres v Ford [2016] ACTSC 204; Stoehr v Meyer [2016] ACTSC 144; 311 FLR 23; and Clarkson v Earle [2016] ACTSC 331 at [10] – [12], citing Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 (Refshauge J) and Tindall v Spal…
Irving v Head
[2016] ACTSC 37 Para 3

…fication to be imposed on appeal: Shaw v Leach [2014] ACTSC 135 at [30] – [33]; Senderowski v Mothersole [2013] ACTSC 217 at [23] and Irving v Head [2016] ACTSC 37; 75 MVR 13 at [105].…
Burow v Hoyer
[2015] ACTSC 21 Para 1

…es v Ford [2016] ACTSC 204; Stoehr v Meyer [2016] ACTSC 144; 311 FLR 23; and Clarkson v Earle [2016] ACTSC 331 at [10] – [12], citing Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 (Refshauge J) and Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198 (Burns J).…
Kentwell v The Queen
[2014] HCA 37 Para 5

…The Director further accepted that, error having been established, this Court must resentence the appellant: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Kristiansen v Yeats [2022] ACTSC 351 at [67]-[71]. I agree. The misreading of the appellant’s criminal history is a factual error, which had bearing on…
Tindall v Spalding
[2014] ACTSC 253 Para 1

…LR 23; and Clarkson v Earle [2016] ACTSC 331 at [10] – [12], citing Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 (Refshauge J) and Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198 (Burns J).…
Matthew John Shaw v Danielle Leach
[2014] ACTSC 135 Para 3

…e as a result of such a mistaken belief may be taken into account in determining the period of disqualification to be imposed on appeal: Shaw v Leach [2014] ACTSC 135 at [30] – [33]; Senderowski v Mothersole [2013] ACTSC 217 at [23] and Irving v Head [2016] ACTSC 37; 75 MVR 13 at [105].…
Senderowski v Mothersole
[2013] ACTSC 217 Para 3

…count in determining the period of disqualification to be imposed on appeal: Shaw v Leach [2014] ACTSC 135 at [30] – [33]; Senderowski v Mothersole [2013] ACTSC 217 at [23] and Irving v Head [2016] ACTSC 37; 75 MVR 13 at [105].…
Mwauluka v Turkich
[2013] ACTSC 1 Para 2

…en by Penfold J in Barnes v Barratt [2018] ACTSC 295. In Barnes at [52] , Penfold J (following her Honour’s previous decision in Mwauluka v Turkich [2013] ACTSC 1 at [46]) held that: Unlike a maximum sentence specified for an offence, which would only be imposed for the most serious examples of the offence (altho…
Krewaz v Jordan
[2012] ACTSC 84 Para 4

…as increased the chances of detection and hence the likelihood of conviction, punishment and licence disqualification. See also Krewaz v Jordan [2012] ACTSC 84 at [1] and Milner v Bonde [2018] TASSC 42; 28 Tas R 62 at [16].…
Re Attorney-General's Application (No 3 of 2002) (NSW)
[2004] NSWCCA 303 Para 4

…The grave consequences associated with drink driving are well known. As Howie J held in Re Attorney-General’s Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; 61 NSWLR 305 at [7]: It is trite to observe that, what is commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very si…
Veen v The Queen (No 2)
[1988] HCA 14 Para 2

…hough not only for an offence such that it is impossible for the sentencing judge to imagine a worse case of the offence) ( Veen v The Queen (No 2) (1988) 164 CLR 465 at p 478), the default disqualification period is to apply automatically on conviction for the offence concerned unless there is good reason to reduce…

Legislation cited in this decision · 9

Magistrates Court Act 1930 (ACT)
208, 216, 218 4 mentions (from Para 1)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
19(1), 26, 33 4 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT)
63(3)(c), 65 3 mentions (from Para 5)
Crimes (Sentencing) Act 2005 (ACT)
33(1) 2 mentions (from Para 2)
Criminal Appeal Act 1912 (NSW)
6(3) 2 mentions (from Para 4)
Legislation Act 2001 (ACT)
84A 2 mentions (from Para 6)
Road Safety Legislation Amendment Act 2024 (ACT)
1 mention (from Para 6)
Road Transport Legislation Amendment Act 1999 (ACT)
1 mention (from Para 5)
Road Transport Legislation Amendment Act 2016 (ACT)
1 mention (from Para 5)