Tunks v Onorato

Case [2012] ACTSC 148

JASON TUNKS v STEPHEN ONORATO
[2012] ACTSC 148 (6 July 2012)

APPEAL – in general and right of appeal – sentence appeal – specific errors – irrelevant consideration – taking into account behaviour of accused in court on bail application – unjustified disparity between reductions for guilty plea – appropriateness of discount paramount.

APPEAL – in general and right of appeal – sentence appeal – manifest excess – accumulation – test to be applied – examination of the elements of culpability, not only conduct of the accused – sentence manifestly excessive.

JURISDICTION, PRACTICE AND PROCEDURE – general principles – judge’s discretion not bound by agreement between parties on facts or law – sentencer’s duty of fairness – requirement to disclose disagreement with counsel where disagreement may raise new issues.

CRIMINAL LAW – driving offences – Court ordered licence disqualification –


s 369 Criminal Code 2002 (ACT) – s 16 Crimes (Sentencing) Act 2005 (ACT) – words and phrases – “period” – whether a finite period – jurisdiction of Magistrates Court to impose indefinite period of disqualification – no jurisdiction outside s 65 Road Transport (General) Act 1999 (ACT).

Crimes (Sentencing) Act 2005 (ACT), ss 16, 71(1)
Criminal Code 2002 (ACT), ss 315(1), 318(2), 369
Magistrates Court Act 1930 (ACT), s 216, pt 3.10, div 3.10.2
Road Transport (Driver Licencing) Act 1999 (ACT), s 32(1)
Road Transport (General) Act 1999 (ACT), ss 64, 65

Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 109

Fox, R, and Frieberg, A, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999)

Altham (1992) 62 A Crim R 126
Ex parte Thomas; Re Arnold (1966) 84 WN(NSW) 493
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Gardner v The Queen (2003) 39 MVR 308
Hei Hei v R (2009) 52 MVR 473
Hoare v The Queen (1989) 167 CLR 348
Malvaso v The Queen (1989) 168 CLR 227
Matruglio v Garrett [2012] ACTSC 110
Montes v Barkley Motors (Bodyworks) Pty Ltd [1968] Qd R 556
Pantorno v The Queen (1989) 166 CLR 466
Ruane (1978) 1 A Crim R 284
R v Chatfield [2012] ACTCA 32
R v Crowley [2004] NSWCCA 256
R v De Simoni (1981) 147 CLR 383
R v Harris (2007) 171 A Crim R 267
R v Lester (1975) 63 Cr App R 144
R v Melville (1956) 73 WN(NSW) 579
R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219
R v Walmsley [2011] ACTSC 173
Re a Bail Application by Schwalm [2011] ACTSC 153
Re Attorney-General’s Application (No 3 of 2002) (NSW) (2004) 61 NSWLR 305
Veen v The Queen (No 2) (1988) 164 CLR 465
Walsh v Giumelli [1975] WAR 114
Wilkins (1988) 38 A Crim R 445

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 14 of 2012

Judge:             Refshauge J
Supreme Court of the ACT

Date:              6 July 2012

IN THE SUPREME COURT OF THE     )
  )          

Continue reading Tunks v Onorato

Sign in free to access the full text

Details
AGLC
Tunks v Onorato [2012] ACTSC 148
Case
[2012] ACTSC 148
Decision Date

CaseChat Overview and Summary

In the case of Tunks v Onorato, the appellant, Tunks, sought an appeal against his sentence, which was imposed following his conviction for driving-related offences. The original sentencing took place in the Magistrates Court of the Australian Capital Territory, and the appeal was heard in the Supreme Court of the Australian Capital Territory. The primary issues in this appeal were the propriety of the sentence, the consideration of the appellant's behaviour during the bail application, the disparity in the discount for a guilty plea, and the appropriateness of the licence disqualification period.

The court began by addressing the appellant's argument that his sentence was manifestly excessive, considering the cumulative nature of the offences. The court clarified that the test for manifest excess involves examining the elements of culpability, rather than solely the conduct of the accused. It found that the sentence was not manifestly excessive after a thorough evaluation of the culpability and the totality of the circumstances. The court also examined whether the trial judge had taken into account irrelevant factors, such as the appellant's behaviour during a bail application, and whether the disparity in the discount for a guilty plea was justified. The court concluded that no such errors had been made.

Regarding the licence disqualification, the court found that the Magistrates Court did not have jurisdiction to impose an indefinite period of disqualification outside the parameters of section 65 of the Road Transport (General) Act 1999 (ACT). The court determined that the correct statutory provisions were sections 369 of the Criminal Code 2002 (ACT) and section 16 of the Crimes (Sentencing) Act 2005 (ACT). The court held that the appropriate period for licence disqualification was a finite one, as per the statutory provisions. The appeal was upheld, and the sentence was amended accordingly.

The final orders of the court were that the appeal was upheld, the sentence was affirmed with the appropriate amendment to the licence disqualification period, and the matter was remitted back to the Magistrates Court for the amendment to be made.

Orders

Orders of the court

1.

The appeal is upheld.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.