Barrett v Brown
[2003] TASSC 86
•17 September 2003
[2003] TASSC 86
CITATION: Barrett v Brown [2003] TASSC 86
PARTIES: BARRETT, Peter John
v
BROWN, Graeme Maxwell
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 67/2003
DELIVERED ON: 17 September 2003
DELIVERED AT: Hobart
HEARING DATES: 2 September 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Traffic Law – Licensing of drivers – Tasmania – Generally – Factors relevant in determining "public interest".
Re Stokman 17/1978; Davies v Deverell (1992) 1 Tas R 214, followed.
Dinsdale v R (2000) 202 CLR 321; Ryan v R (2001) 206 CLR 267, considered.
Traffic Act 1925 (Tas), s32(2A)(a).
Vehicle and Traffic Act 1999 (Tas), s18.
Aust Dig Traffic Law [25]
REPRESENTATION:
Counsel:
Applicant: M F Daly
Respondent: M P Shirley
Solicitors:
Applicant: E R Henry Wherrett & Benjamin
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 86
Number of Paragraphs: 21
Serial No 86/2003
File No LCA 67/2003
PETER JOHN BARRETT v GRAEME MAXWELL BROWN
REASONS FOR JUDGMENT SLICER J
17 September 2003
The applicant seeks review of a decision of the court of petty sessions refusing him a grant of a restricted licence following his conviction for an offence contrary to the Traffic Act 1925, s32(2A)(a).
The applicant had pleaded guilty to the offence which had resulted in the death of the driver of another vehicle. The relevant findings of the learned magistrate made during the sentencing hearing were:
"You were driving a large truck and trailer with a load on the Midlands Highway on the 18th of February of 2001, there was a vehicle in front of you and it stopped with the intention of turning right, you for some reason didn't see its brake lights or its indicators and your vehicle collided with the rear of that vehicle. That vehicle was in fact pushed into the path of the vehicle being driven by Mr Thomas and, of course, he was killed.
Now, I take into account the circumstances of the accident, it turns, really, on the simple fact that you were driving too close behind another vehicle and failed to avoid a collision with it. There was no allegation of alcohol or drugs involved. There was no charge or allegation of recklessness. There was no other charge of breach of traffic rules or road rules. Unfortunately it is another tragic example of the results of inattention, however brief. In this case also, however, you were driving a large vehicle. Any error in your driving could cause an accident that would inevitably lead to serious and in this case tragic consequences. You had a high duty of care."
Mr Barrett, aged 52, had no relevant prior convictions and was of good character. (Weininger v R [2003] HCA 14). He was married with an extensive family. He had been a truck driver for many years and had never lost his licence. The learned magistrate imposed the following penalties upon conviction:
(1)A sentence of imprisonment of five months, immediately suspended on condition that the offender be of good behaviour for a period of two years.
(2)140 hours of community service.
(3)Licence disqualification for a period of 18 months.
(4)12 months' probation. The probation order included a special condition made in accordance with the Sentencing Act 1997, s37, that the offender:
"… attend any educational or other programmes as directed by a Probation Officer including any programme concerning victim/offender mediation."
The sentence reflected a balance between the record of Mr Barrett, the circumstances of the accident, and the consequence of death and the effect of the orders:
"… to the extent that they can be towards the assisting of victims of crime, offences and traffic accidents."
Following the imposition of sentence, the applicant sought the grant of a restricted driver's licence, pursuant to the Vehicle and Traffic Act 1999, s18, which relevantly states:
"18 ¾ (1) A person whose Australian driver licence (other than a learner licence) is, or is liable to be, suspended or cancelled because of ¾
(a) …
(b) a disqualification order made by an Australian court; or
(c) …
may, subject to subsection (2), apply to a court of petty sessions for an order authorising the issue of a restricted driver licence subject to conditions as specified in the order.
…(5) The court may make an order authorising the issue of a restricted driver licence if the court is satisfied that –
(a) the licence suspension or disqualification is imposing, or will impose, severe and unusual hardship on the applicant or the applicant's dependants; and
(b) a restricted driver licence should be issued to mitigate or alleviate that hardship; and
(c) the issue of the restricted driver licence would not be contrary to the public interest."
In his application, the applicant stated:
"1 I am 50 years of age. I live at 2 Bedford Street in Brighton with my wife and youngest daughter, aged 19.
2 I worked for Brighton Block Pty Ltd as a driver. I worked for that company 5 days per week, but sometimes I worked more than 5 days per week.
3 I have no other qualifications relevant to employment other than my attainment of various driver licence qualification. I have been employed as a truck driver for 30 years. I have no relevant experience of any other industry.
4 My wife works at a [sic] extended care assistant, on the night shift at Guildford [sic] Young Grove Nursing Home. She earns the sum of $623.81 per fortnight, net.
5 From Brighton Block, I earned an average sum of $800.00 gross - $615.00 net per week - $1,200.00 per fortnight.
6 Our income prior to the order of disqualification was the sum of about $1,800.00 per fortnight."
He claimed that current and recurring expenses amounted to approximately $810 per fortnight. It was clear that as a result of the licence disqualification he would lose employment and the family's capacity to service the mortgage impaired or destroyed. In relation to the latter issue, the application stated:
"12If I am unable to work, the family's income will not cover our mortgage repayments as well as the other necessary household expenditure. Therefore, I believe that it may be necessary to sell our home because I would be unable to make the mortgage repayments.
13After the accident which gave rise to the disqualification, I was out of full-time work for about 9 months. During that period, I could not meet my other commitments and I had to sell the family home to move into a residence that I could afford. So, I have already lost one house as a result of this accident. I fear that this disqualification will now cause me to have to sell my present residence as well. I do not know how the family will be able to afford to meet al [sic] the commitments if I am unable to work as a truck driver."
The terms of the restricted licence sought were:
"1That the applicant be permitted to drive the following motor vehicles for and in the course of his employment with Brighton Block Pty Ltd ACN 009 546 034 cnr Elderslie Rd and Midlands Highway, Brighton:
a) white 1998 T401 Kenworth Prime Mover, registration number DQ 1378.
b) white 1994 Kenworth Prime Mover registration number ED 7518.
c) white 1999 Kenworth Prime Mover registration number and EO 4878.
2That the applicant be permitted to drive for and in the course of his employment between the hours of 1:00 pm to 11:00 pm on the following route:
a) From Brighton Block at cnr Elderslie Rd and Midlands Highway, Brighton to Sutcliffe Earth Moving at Midlands Hwy Bridgewater; and
b) then directly to North‑West Rendering at Spreyton/Quoiba; and
c) then directly to Bell's cement works on cnr Frankford & Bass Hwys; or
d) then to CSR Humes at Churchill Park Drive in Launceston; and
e) then to Brighton Block at cnr Elderslie Rd and Midlands Highway, Brighton; and
f) then to Sutcliffe Earth Moving at Midlands Hwy Bridgewater; and
g) then to Brighton Block at cnr Elderslie Rd and Midlands Highway, Brighton.
3Log Book
4Shortest practicable route & without undue deviation
5Must carry order."
The application was supported by the managing director of the employer, whose statement relevantly included:
"2Peter has worked for Brighton Block for over 18 months, commencing on 3rd Dec 2001 but I've known of him for over 30 years. I know that Peter has been a truck driver for all that time. He's driven for Mobil, McCormack's and Reid Transport.
…
8On about 6 May 2003 Peter successfully completed the training and he got his 'Level 4 C6 Drive Multiple Combination Vehicles' endorsement.
…
12It is also my opinion that after 18 months out of the industry, Peter will find it quite difficult to obtain employment again in the kind of job he has now. My opinion is that Peter will find it quite hard to obtain employment as a driver for some time after his disqualification is over. I am certain that he will be off the road and out of employment for well over 18 months.
…
14I will not keep Peter's position open for him while he is disqualified. I must get another driver. I will not be offering another driver an 18 month contract. My experience is that I will not get a qualified driver who will accept only an 18 month contract.
15At the conclusion of his disqualification, Peter will be 53 years old and will have been off the road for that entire period. Not only will I be unable to employ him, other employers will be reluctant to, in my opinion.
…
18If Peter were granted a restricted licence, I could restrict him to only drive the afternoon shift. This way, Peter's whereabouts at any particular time of the shift would be pretty predictable and you would know where Peter was ‑ or where he ought to be.
19The afternoon shift can be done in 8 hours, but to allow 10 hours takes all the possibilities into account, such as someone not being ready along the way or a puncture or mechanical problem. On this shift Peter does not have any particular time pressures such as irregular or unusual deadlines. It would not be usual that he would have to hurry anywhere."
The applicant gave evidence in support of his application and little challenge was made to its accuracy in cross-examination.
The learned magistrate accepted that the disqualification would cause "severe and unusual hardship". However, he rejected the application on the basis that its granting would be contrary to the public interest, or at least that he was not satisfied that the applicant had satisfied him that it was not against the public interest. He observed that the test was:
"… a question of looking at the unintended result of the defendant's driving in determining whether or not I should make an order or whether I shouldn't and whether I can be satisfied to the required standards on the balance that it wouldn’t be contrary to public interest to authorise the granting of a licence."
He believed that the grant of a restricted licence:
"… would effectively put him back pretty well in the same position as he was prior to February 2001."
The essence of his decision was expressed as:
"It would appear to me that this is a particular case where I should not authorise the granting of a licence. I can't be and am not satisfied that it would not be contrary to public interest to authorise the granting of a licence. The full punitive effect, because of the unfortunate nature of this offence, should remain. I did make certain comments when I made my order in relation to the sentence. It's a very unfortunate and sad situation and all I can do is hope that the probation order I made may assist in overcoming the problems that Mr Barrett has. It would appear to me also however that when looking at what the public interest is the public would expect that the full deterrent effect and full punitive effect of an offence of this nature would remain and if a person has to suffer financially to a degree so be it, but it would appear to me that that's what the community would demand or the public would demand and I must be satisfied on the balance that it would not be contrary to public interest to authorise the granting of a licence. I don't believe in this particular case I can, I refuse the application."
The motion to review claims error in that:
"… the learned Magistrate erred in failing to properly exercise his discretion in finding that it was contrary to the public interest to grant the Applicant a Restricted Driver Licence."
The finding of the learned magistrate was in fact that the applicant had not satisfied him that it would not be contrary to the public interest to grant the licence. The distinction is significant.
While the grant of a restricted licence ought not be regarded as a factor in assessing whether a penalty is manifestly excessive (Barwick v Taws [2003] TASSC 83), the converse does not apply. In assessing public interest, a court is entitled to have regard to the import of the penalty. The maximum penalty prescribed by Parliament for the offence of causing death by negligent driving is (Traffic Act, s32(2A)):
"(2A) A person must not cause the death of another person by driving a motor vehicle on a public street negligently.
Penalty:
In the case of ¾
(a)a first offence, a fine not exceeding 10 penalty units and imprisonment for a term not exceeding 1 year."
The Vehicle and Traffic Act, s18(5), states three criteria governing the exercise of discretion in a grant of a restricted licence, being:
"(5) The court may make an order authorising the issue of a restricted driver licence if the court is satisfied that –
(a) the licence suspension or disqualification is imposing, or will impose, severe and unusual hardship on the applicant or the applicant's dependants; and
(b) a restricted driver licence should be issued to mitigate or alleviate that hardship; and
(c) the issue of the restricted driver licence would not be contrary to the public interest."
The principles derived from those criteria have been stated as:
(1) history of persistence in offending or likely repetition of conduct;
(2) relevant prior convictions;
(3) conduct giving rise to the conviction which evidences a real disregard for the relevant legislation;
(4) risk of continued offending during the period of the restricted licence.
(See Dillon v Davies 12/1990; Driver v Davies 13/1991; Re Stokman 17/1978.) The applicant satisfied each of those criteria.
In Re Stokman (supra), Green CJ stated at 5:
"There is a clear public interest in seeing that orders which are intended to operate as deterrents are given full force and effect and in my view, therefore, the possibility that the granting of an application under s36 might unduly reduce the punitive or deterrent effect of an order of disqualification would be relevant to the determination of the question of whether a court was satisfied that the issue of a restricted licence would not be contrary to the public interest. Thus one of the reasons why it would be appropriate for a court hearing an application for a restricted licence to have regard to the applicant's previous convictions would be so that the court would be able to see whether the applicant was a persistent offender who in the public interest it was especially necessary should be made the subject of orders having a deterrent effect. But in saying that, I am not suggesting that whenever a court hearing an application under s36 concludes that to issue a restricted licence would significantly reduce the punitive or deterrent effect of an order of disqualification the court should automatically refuse the application. That would largely defeat the purpose of s36."
In that decision, the Chief Justice recognised that a court was entitled to pay regard to a reduction in the punitive effect of an order of disqualification in its consideration of the grant of a restricted licence.
The learned magistrate determined that relevant factors included:
(1)The perception of the public in a case involving death that anything less than an actual sentence of imprisonment and/or an effective period of disqualification was a cogent matter in the determination of the public interest. This factor differs from the requirement of general deterrence (Nunn v Brazendale [2001] TASSC 33).
(2)The interests of the family in obtaining retribution, both in its own right and as a factor in their accommodating the death of a loved one at the hands of another.
The learned magistrate was engaged in an instinctive synthesis model of sentencing (Ryan v R (2001) 206 CLR 267) which, despite academic criticism (What's Instinct got to do with it? A blueprint for a coherent approach to punishing criminals, Bagaric and Edney (2003) Crim LJ, vol27, 119) and judicial acknowledgement of its complexity and requirements for adjustment (Olbrich v R (1999) 108 A Crim R 464; Wong v R (2001) 76 ALJR 79; Sharma v R (2002) 130 A Crim R 238) remains the appropriate methodology. Judgment and intuition remain central to the methodology (Wong (supra), Kirby J at 100). Within that context, the learned magistrate was entitled to pay regard to the elements of public perception and general and special retribution in determining the "public interest" component of amelioration by a grant of a restricted licence (R v Causby [1984] Tas R 54). He correctly resisted any accommodation of actual outrage or uninformed opinion (Inkson v R [1996] Tas R 1) by the suspension of the sentence of imprisonment, regarding its imposition as being significant (Dinsdale v R (2000) 202 CLR 321), while at the same time acknowledging that the effective negation of the disqualification would place the offender in essentially the same position as he was before causing the death of another. In that respect he was entitled to pay regard to the interests of the family of the deceased (Richardson v R 5/1991). In doing so, he acted in accordance with the statement of principle advanced by Zeeman J in Davies v Deverell (1992) 1 Tas R 214 when he said, at 226:
"It has been established since In re Stokman [1978] Tas SR 218 (NC 4) (which has been followed in this Court on numerous occasions) that the maintenance of the full force and effect of orders of disqualification intended to have deterrent effect is a relevant consideration in relation to the public interest in this context. The clear legislative intent evinced by the Act is to treat the driving of motor vehicles by persons whose skill and judgment is adversely affected by the consumption of intoxicating liquor as a grave social evil to be visited with severe penalties. It is a necessary part of the achievement of that legislative intent that orders of disqualification imposed and required to be imposed under the Act are not perceived as often having little punitive effect because of the ease with which hardship licences may be obtained. In appropriate cases the public interest will require that the general and specific deterrent effect of an order of disqualification not be reduced by the granting of a restricted licence."
It may be that the grant of a restricted licence might have been immune from appellate review but that is a different question. The learned magistrate's assessment of "public interest" was not contrary to principle, nor outside his permitted exercise of judgment.
The motion to review is dismissed.
5
2