Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

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

Road Traffic Act 1974 (WA)

Convictions set aside and other convictions substituted

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

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 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.

Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $200)

Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $350)

Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $350)

Conviction for No MDL (under suspension) set aside, conviction for no MDL simpliciter substituted (penalty: $200)

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).