Atkinson v Registrar of Motor Vehicles

[1991] TASSC 180

Serial No B66/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Atkinson v Registrar of Motor Vehicles [1991] TASSC 180; B66/1991

PARTIES:  ATKINSON
  v
  REGISTRAR OF MOTOR VEHICLES

FILE NO:  LCA 23/1991
DELIVERED ON:  7 November 1991
JUDGMENT OF:  Crawford J

Judgment Number:  B66/1991
Number of paragraphs:  13

Serial No B66/1991
File No LCA 23/1991

ATKINSON v THE REGISTRAR OF MOTOR VEHICLES

REASONS FOR JUDGMENT  CRAWFORD J

7 November 1991

1. The applicant has moved to review a refusal by a magistrate, sitting as a Court of Petty Sessions, to grant him a restricted licence to drive a motor vehicle pursuant to the Traffic Act 1925 s36. The magistrate refused the application because he was not satisfied that the exercise of the powers to make the order authorizing the grant of the licence would not be contrary to the public interest and because he was not satisfied that the powers should be exercised for the purpose of mitigating or alleviating any severe or undue hardship which the disqualification would impose on the applicant or his dependants.

1. On 29 August 1991 the applicant pleaded guilty to driving a motor vehicle on 2 August 1991 on Weld Street at Beaconsfield with a concentration of alcohol in his blood greater than the prescribed concentration of .05 grams in 100 millilitres of blood, namely .233 grams. He was disqualified for holding or obtaining a driver's licence for 15 months and was ordered to pay a fine of $400 and costs of $21. On the hearing of the application only the applicant gave evidence. He was a married man aged 52 years. He no longer had dependent children but his wife was dependent on him working. They were in partnership together as cartage contractors, although she was inactive. He had worked almost exclusively for Boral Quarries carting gravel until May 1990 when he was put off. Since then he had only worked spasmodically and he and his wife had been in receipt of unemployment benefits of $251 per week. He was indebted to financial institutions in the sum of $65,000 in relation to his truck, with an obligation to repay the loans at the rate of $2,069 per month. Because of lack of work he had been unable to make those repayments for the three months prior to the making of his application in September 1991. Registration costs on his truck of $1,200 will fall due in December. He has no other trade or any qualifications. He has worked as a professional driver all his working life and has held a driver's licence for 34 years.

1. He had been advised by Boral Quarries that from the end of September 1991 he would be contracted to undertake cartage work for a period of four months (provided no doubt he is licensed to drive). The contract would involve him carting gravel from a quarry at Cabbage Tree Hill to Flowery Gully and sometimes into Launceston and the Tamar area. He also gave evidence of having another contract for a Mr Taylor for the cartage of gravel from a quarry at Holwell within a 50 kilometre radius. These contracts would require him to start work at 7am and finish as late as 6pm from Monday to Saturday each week. He would therefore need to leave home at 6.30am and get home at about 6.30pm He also hoped to obtain other contracts involving driving within 50 kilometres of his home. If he was unable to drive for the purpose of working he would have to sell or give up his truck. He would face an unspecified financial short–fall having to come out of the unemployment benefits he received. The applicant sought an order authorising the grant of a licence to drive a motor vehicle in the course of his business as a cartage contractor within a 50 kilometre radius from his home on Monday to Saturday inclusive each week between the hours of 6.30am and 6.30pm. He explained to the magistrate the circumstances in which he committed the offence. His truck was on time–payment and he had not had work. "I'd been associated with chaps in the afternoon" (it was a Friday) "and had nothing to eat and ventured down to Beaconsfield and had more drink and I was on my way home". The local police pulled him up. His drinking had been in two bouts on that afternoon, firstly at Exeter and then at Beaconsfield. He was driving his car. His counsel told the magistrate that the police told him that he was pulled over because he was swerving on the road.

1. The applicant had one prior conviction dated 2 March 1982 for a similar offence committed on 11 February 1982. The legal limit was then .08 and his reading on that occasion was .24. He explained the circumstances as being that "I had a truck with Ready Mix at the time and it used to get me down. I get very upset when I can't find a living, and I had a truck on time–payment as well then, and we'd been having a meeting with a few of us, well, the building trade had just slumped and we had no work and I looked like losing my truck and everything so ... ". He had been pulled up on his way home in his Datsun utility. He was disqualified for that offence for twelve months, fined $200 and ordered to pay costs of $10.10. His counsel informed the magistrate that on that occasion he obtained a restricted licence.

1. Evidence given by the applicant of his drinking habits was brief. He said "I usually only go out once a week, Friday night ... and that's about it. I never drink through the week or anything".

1. Because the Road Safety (Alcohol and Drugs) Act 1970 s19(2) provides that it shall be deemed to be contrary to the public interest to make an order authorising the granting of a restricted licence to a person suffering from alcohol dependency within the meaning of the Alcohol and Drug Dependency Act 1968, and the court might refuse to make such an order unless satisfied on the evidence of a medical practitioner approved by the court that the applicant was not so suffering from alcohol dependency, the magistrate sought a report from the Alcohol and Drug Service. The report was signed by a Dr Jones who stated that physical examination was normal and blood tests of liver function were normal. The report contained information provided to the doctor by the applicant and it concluded in the following terms:

"Based on the history given me, and the medical information I have I do not believe John Robert Atkinson to be alcohol dependent within the meaning of the Alcohol and Drug Dependency Act '68, but I am concerned about his high reading of .23. This reflects a high level of tolerance to alcohol which usually only comes about when a person is drinking regularly. As mentioned, there is no physical or medical evidence to support heavy drinking."

1. The Road Safety (Alcohol and Drugs) Act 1970 s19(1) provides that no order shall be made if the applicant has been convicted of a similar offence within the preceding three years. That provision therefore has no application in this case. The Traffic Act 1925 s36(4) does apply and it is in the following terms:

"36–(4) No order shall be made under this section unless the magistrate is satisfied –

(a)       that the disqualification will impose or is imposing severe and unusual hardship on that person or his dependants;

(b)       that the powers of this section should be exercised for the purpose of mitigating or alleviating that hardship; and

(c)       that the exercise of those powers for that purpose would not be contrary to the public interest."

1. There was no suggestion by the magistrate that he was not satisfied as required by paragraph (a) but he expressly refused the application upon the grounds that he was not satisfied of the matters contained in paragraphs (b) and (c). He expressed his reasons in the following terms:

"Well, this is an application for an order authorizing the granting of a restricted licence in broad terms. I propose to dismiss the application, indeed as I foreshadowed earlier this week. I will now give brief oral reasons for having reached that conclusion. I have particular regard to –

1The very high reading of .233 which is almost five times the permitted maximum acquired as a result of consuming alcohol at both Exeter and Beaconsfield in circumstances where the applicant was at a distance from his home, there being no evidence that at any time that he contemplated not driving home.

2The applicant concedes that it was his manner of driving which attracted the attention of the police who intercepted him. There being no other explanation put forward to explain that manner of driving, the conclusion that the applicant's consumption of alcohol contributed to it deserves respect.

3Approximately nine years before the applicant was convicted of driving with a blood alcohol reading of .24, three times the then permitted maximum of .08 and similarly a very high reading.

4The consequences of the 1982 licence disqualification were mitigated by the making of an order authorising the granting of a restricted licence. This application, therefore, is the applicant's second application for such an order within approximately nine years, made seeking to mitigate the consequences of licence disqualification with very high blood alcohol readings.

5The circumstances of both drinking and driving is described by the applicant with regard to each offence are remarkably similar. Clearly, the mitigated punishment imposed in 1982 did not deter the applicant from re–offending in a remarkably similar manner. It is said that that similarity works in favour of the applicant, that when viewed in context it lent support to a claim that the relevant acts of driving were out of character and prompted by exceptional circumstances. If that submission be correct one is concerned that other exceptional circumstances could in turn prompt unacceptable driving behaviour.

6I do not overlook the defendant's long and extensive driving experience and the absence of other convictions. Nevertheless, each of the two convictions to which I have referred constitutes a gross violation of his responsibilities as a driver.

7The applicant's counsel submitted that in recent years the community has become more alert to the hazards of presumably both legal and otherwise associated with so called drink driving, 'a change in the culture' as he put it, and that the defendant's driving record when viewed fairly and in context displays an acceptance of that attitude. I remain unpersuaded. The circumstances surrounding the relevant act of driving earlier this year are highly suggestive with an attitude that he is not adequately responsive.

After careful consideration of the evidence and submissions I am not satisfied that it would not be contrary to the public interest to make an order in the terms sought or in terms that would substantially accommodate the applicant's wishes. I am not persuaded that any conditions or restrictions that I could reasonably impose upon the exercise of any entitlement to drive would be served by any such order would alleviate to a satisfactory degree the concerns that I have expressed. In addition I would refuse the application in the exercise of my discretion under Section 36(4)(b) of the Act. In addition to the matters to which I have referred, in the circumstances the mitigation of the effect of the current disqualification would be likely to undermine the special and deterrent aspects of the penalty to an unacceptable degree. For those reasons the application is dismissed."

1. Ignoring for the moment the conclusion of the magistrate that he should dismiss the application, I can find no fault with any of his findings and views. As to his conclusion that the application should be dismissed, my function on the hearing of an application to review is not simply to come to a decision whether I would or would not have granted the application. The decision was one involving a discretionary judgment and there is a strong presumption in favour of its correctness. It should be affirmed unless I am satisfied that it was clearly wrong. "A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499 at 504, 505." Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627. Bearing in mind the comment of Burbury CJ in Manning v Foster [1971] Tas SR 384 (NC), 87/1971 at p4, that the question whether an order authorising the grant of a licence should be made is not part of the court's function in determining penalty, the reference by Underwood J. in Registrar of Motor Vehicles v Fleming 44/1989, which was adopted by me in Re P G O'Connell B18/1991, to Cranssen v The King (1936) 55 CLR 509 at pp519–520, Harris v The Queen (1954) 90 CLR 652 and R v Tait (1976) 46 FLR 386 at pp387–388 for the applicable principles was probably not strictly appropriate, for those cases involved the exercise of the sentencing discretion. But the principles are really the same.

1. It must also be remembered that the onus was on the applicant to satisfy the magistrate of the matters contained in the Traffic Act 1925 s36(4). Particularly in the context of this application he needed to satisfy the magistrate that the exercise of the powers to make an order for the purposes of mitigating or alleviating the hardship required by paragraph (a) would not be contrary to the public interest. The concept of the public interest has been referred to in many cases and I will not repeat what was said in them. The cases include Hayes v Peterson [1972] Tas SR 86, In Re Stokman 17/78, Lowe v Narracott B54/87 and Lowe v Mansfield 65/88.

1. I am not persuaded that the learned magistrate was wrong in concluding that he was not satisfied that to make the order sought would not be contrary to the public interest. Of particular concern is the fact that the two convictions for exceeding the blood alcohol laws involved serious breaches, for very high readings were involved. On the first occasion the applicant was able to continue with his occupation as a cartage contractor by having granted to him a restricted licence. His licence was essential to him for his occupation and yet he drove again, admittedly some nine years later, following drinking in two towns during the day to such excessiveness that his blood alcohol reading was over 4½ times the legal limit. The deterrent effect of disqualification for such offences would arguably be considerably weakened if on his second conviction and disqualification he was granted a licence authorising him to drive for twelve hours a day on six days a week. I do not disregard the obviously severe and unusual hardship to the applicant if he cannot drive. But there was nothing said by the learned magistrate which was specifically in error and I find myself unable to conclude that the exercise of his discretion to refuse the application was unreasonable to the extent that it was unsound.

1. The grounds of the application were:

"1THE Magistrate erred in law and in fact in holding that to grant a restricted licence the Applicant would be contrary to the public interest.

2THE Magistrate failed to give sufficient weight to the circumstances in which the offence for which the Applicant was convicted and disqualified was committed.

3THE Magistrate erred in law and in fact in finding that were a restricted licence to be granted to the Applicant it would have the effect of detracting from the deterrent effect of the penalty imposed for the offence to an unacceptable degree.

4THE Magistrate erred in law and in fact in placing undue weight on the Applicant's prior conviction and the fact that the Applicant had been granted a restricted licence in 1982."

1. I conclude that none of those grounds have been made out. The motion will be dismissed.