Tunks v Taws - [2003] TASSC 58

[2003] TASSC 58

CITATION: Tunks v Taws [2003] TASSC 58

PARTIES:  TUNKS, Stephen Andrew
  v
  TAWS, Acting Sergeant Jayson

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 18/2003
DELIVERED ON:  4 July 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  30 June 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Traffic Law - Licensing of drivers - Tasmania - Disqualification, and cancellation and suspension of licences - Disqualification - Multiple offences - 37 year old recidivist traffic offender - Lengthy record of similar traffic offences - Driving while disqualified and in breach of blood alcohol law - Disqualified from holding or obtaining a driver's licence for six years - Whether excessive.
Wise v R [1965] Tas SR 196; R v O'Brien A43/1987; Jarvis v Brown 120/1998, referred to.
Aus Dig Traffic Law [26]

REPRESENTATION:

Counsel:
             Applicant:  R L Holder
             Respondent:  P Sherriff
Solicitors:
             Applicant:  Archer Bushby
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2003] TASSC 58
Number of paragraphs:

Serial No 58/2003
File No LCA 18/2003

STEPHEN ANDREW TUNKS v ACTING SERGEANT JAYSON TAWS

REASONS FOR JUDGMENT CRAWFORD J

4 July 2003

The applicant pleaded guilty before a magistrate to three offences committed on 16 January 2003 on Poatina Road. The offences were driving while disqualified under the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), contrary to s19A(1), driving a vehicle on a public street while under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the vehicle, contrary to s4(a), and not being the holder of a licence, driving a vehicle on a public street while alcohol was present in his body, namely 0.235 grams of alcohol in 100 millilitres of blood, contrary to s6(2). He was convicted and sentenced to nine months imprisonment and disqualified from holding or obtaining a driver's licence for a period of six years commencing at the expiration of any period of disqualification to which he was liable. He moved this Court to review the penalties on the ground that they were manifestly excessive.

The facts were that a member of the public reported to police that a motor vehicle was being driven up the Poatina hill towards the lakes. The driver appeared to be drunk and was all over the road. Young children were in the vehicle. At 7.10 pm a constable intercepted it. The applicant was the driver and he had two children with him, aged four and six years. His eyes were bloodshot and his walk, although reasonably steady, was obviously affected by alcohol. He smelled strongly of intoxicating liquor and his speech was slurred. He admitted to being a disqualified driver. He was taken to Launceston where a blood alcohol reading of .235 was obtained.

He was 37 years old. He had a very bad record of convictions for offences against the Act. On 17 August 1984, he was convicted of exceeding .05 (.07), and fined $150 and four demerit points were imposed. On 5 September 1986, he…

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 Tunks v Taws

Details

AGLC: Tunks v Taws [2003] TASSC 58
Case: [2003] TASSC 58
Decision Date: 4 July 2003

CaseChat Overview and Summary

The applicant, Stephen Andrew Tunks, appealed against his conviction and sentence for driving while disqualified and under the influence of alcohol, arguing that the penalties were manifestly excessive. The case was heard by the Supreme Court of Tasmania, which held appellate jurisdiction over the matter. The legal issues before the court were whether the sentence of imprisonment and the period of disqualification imposed on the applicant were excessive, considering the nature and circumstances of the offence, and his history of similar offences.

The court examined the applicant's extensive criminal history, which included multiple convictions for driving under the influence of alcohol, driving while disqualified, and other related offences. The applicant had been previously sentenced to imprisonment and disqualification from holding or obtaining a driver's licence on several occasions. Despite his history, the court found that the sentence of nine months imprisonment was justified, as it was less than half the prescribed maximum for the drink driving offences and the applicant drove in breach of a court's disqualifying order. Furthermore, the court held that the six-year period of disqualification was not excessive, as it was within the maximum authorised by the legislation, and it was necessary to protect the public from the applicant's continued drinking and driving.

In conclusion, the Supreme Court of Tasmania dismissed the applicant's motion to review the penalties imposed on him, finding that the sentence of imprisonment and the period of disqualification were justified in the circumstances. The court emphasised the importance of condign punishment and deterrence for persistent and serious transgressions, and the need to protect the public from the risk posed by the applicant's continued drinking and driving.

Orders