Bessell, Kerry Lloyd v Walters, David Charles

[1998] TASSC 148

148/1998

PARTIES:  BESSELL, Kerry Lloyd
  v
  WALTERS, David Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 36/1998
DELIVERED:  2 December 1998
HEARING DATE/S:  4 September, 23 November 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Traffic Law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Other offences - what may constitute special circumstances - Whether less than the minimum penalty should be imposed.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s17(5).
Johnston v Davies (1992) 1 Tas R 183; Davies v Kennedy (1992) 1 Tas R 266; Strickland v Whitehead B60/1995, referred to.

REPRESENTATION:

Counsel:
             Appellant:  L Mason, K Brown
             Respondent:  G J Faulds
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Faulds & Associates

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  148/1998
Number of pages:  4

Serial No 148/1998

File No LCA 36/1998

KERRY LLOYD BESSELL v DAVID CHARLES WALTERS

REASONS FOR JUDGMENT  COX CJ

2 December 1998

This appeal by the prosecutor challenges the finding by the learned magistrate that "special circumstances" within the meaning of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act") existed in this case and alleges that if she had a discretion to impose a lesser penalty than that prescribed by the Act, the exercise of that discretion miscarried in the circumstances of the case and led to the imposition of a manifestly inadequate penalty.

The respondent pleaded guilty to a breach of the Act, s6(1) in that on 8 August 1997 at Main Road, Berriedale he drove a motor vehicle while alcohol was present in his blood in a concentration greater than the prescribed concentration of 0.05 of a gram of alcohol in 100 millilitres of blood, namely 0.116 grams of alcohol in 100 millilitres of blood. The circumstances of the offence were quite unremarkable. Police officers in a marked police vehicle were parked near the Granada Tavern in Berriedale when they saw a vehicle drive out of the hotel car park, turn right without indicating and travel south along Main Road before turning left into a private driveway, again without indicating. The respondent, who was the driver, was spoken to and admitted to having consumed beer at the Tavern. A breath test gave a positive reading and on breath analysis he was found to have a reading as alleged in the complaint. The learned magistrate was told that traffic was light and the weather fine at the time of the offence, namely 8.10pm on a Friday evening. The driveway where he stopped was that of his place of residence and the entire journey was only approximately 250 metres.

The respondent was a 52 year old businessman who had one previous relevant conviction for a similar offence committed in December 1994. On 5 April 1995, he was convicted of driving with a concentration of 0.119 grams per 100 millilitres of blood. He was fined $400 and disqualified for driving for six months. A restricted licence was granted to him. By virtue of the Act, s17 and the Table thereto, the learned magistrate was obliged to impose a minimum period of twelve months' disqualification and either a minimum fine of $800 or a sentence of imprisonment not exceeding twelve months. The upper limit for a fine was $4,000 and for disqualification three years. Subsection (5), however, permitted the court to impose a lesser fine or a lesser period of disqualification if the respondent satisfied the court that "there are special circumstances why the minimum fine specified in the Table or the minimum period of disqualification specified in the Table should not be imposed". By reason of his earlier conviction and disqualification less than three years previously, the court, pursuant to the Act, s19 had no power to grant the respondent a restricted licence under the Traffic Act 1925, s36.

After hearing evidence of the respondent's financial position, the learned magistrate concluded that the imposition of a period of disqualification of or exceeding twelve months would inflict very severe financial hardship upon him such as to constitute "special circumstances" and she imposed a fine of $800 and a period of disqualification of three months only.

The respondent gave evidence that he had a number of different business interests which included an emu farm at Scamander and a marine brokerage business.  The emu farm also contained a grove of olives and the land had potential for the development of holiday units.  No fruit had yet been harvested from the olive grove, and the meat and oil from his stock of emus was insufficient to yet produce a profit.  The property was encumbered by a loan of $165,000.  The farm did not require a permanent presence, but it was necessary for someone to visit every two weeks to deliver grain, collected at Ross, to the farm, to process it on site and to fill feeding boxes for the emus.  Due to the remoteness of the property, access to it by public transport was out of the question.

The respondent had been in the building industry and had a half finished "spec" house at Dodges Ferry.  Before it could become a saleable item, the roof had to be finished and the house made lockable.  He estimated that he had $70,000 invested in it.  Its value, if sold in its incomplete state was, in his estimation, $35,000.  He had no finances to enable him to complete the building.  The matrimonial home at Berriedale, as well as the house at Dodges Ferry, were mortgaged as collateral security for an overdraft and other loans in respect of his business dealings.  His wife was a trained midwife who worked at Calvary Hospital and earned approximately $36,000 per annum.

The respondent's main income was derived from his marine brokerage business.  This required him to be available to conduct potential boat buyers on inspections at ports and anchorages throughout the State, virtually seven days a week.  Many potential buyers flew in from other States and expected him to meet them at the airport and transport them back at the conclusion of the inspection.  The learned magistrate had ample evidence from which she could conclude that private transport was essential to the viable conduct of such a business and that the respondent could expect no regular assistance in that regard from his wife or his children.  She concluded that if he could not drive, he would be unable to pursue his business as a marine broker.  If in consequence he received no income, he could not meet his borrowing commitments and he faced the risk of a forced sale of all his assets, with the likelihood of sales at considerable under value.  The losses he would face would be crushing and in her view the consequences of the loss of his licence represented "more than severe and unusual hardship".  Although she made no specific findings as to the cost of engaging a driver, she concluded that if one were engaged to overcome his inability to drive, the respondent could not afford to continue to pay a driver for more than three months without precipitating the loss of his business assets.  Depriving him of a licence for even that period of time would represent a heavy and deterrent penalty in addition to the monetary penalty of $800 which, in the exercise of her discretion, she reduced to the minimum permitted by the Table.

Were these special circumstances for the purposes of the Act, s17(5)? In Johnston v Davies (1992) 1 Tas R 183, Crawford J, after referring to the South Australian case of Baskerville v Martin [1965] SASR 156 at 160 said, at 189 - 190:

"… it seems to me that the mere fact that it is likely that there will be some loss of earning capacity will not be sufficient on its own to constitute special circumstances. But it is a factor which may be taken into account and it is conceivable that there will be cases where loss to a particular defendant will be so severe that after consideration of all the circumstances of the case it will justify the imposition of a period of disqualification less than the prescribed minimum. In this connection however it is proper to have regard to the fact that the imposition of at least the minimum period has been fixed by Parliament for the usual run of cases and by denying certain categories of offenders of a right to apply for a restricted licence Parliament must have contemplated that at least the minimum period of disqualification would be imposed on most of the persons who fell within those categories notwithstanding that loss of livelihood might result. It is also appropriate to comment that if a livelihood depends on the existence of a licence the primary responsibility is upon the driver not to offend and thereby lose it, and only in a case where special circumstances are established may a court consider reducing the penalty below the level of the minimum prescribed by Parliament."

In Davies v Kennedy (1992) 1 Tas R 266, Underwood J stressed that serious financial hardship is not necessarily sufficient to constitute "special circumstances". At 274 he said:

"No doubt Parliament had in mind that in many cases, licence disqualification would result in job loss and financial hardship for both the offender and his/her family. No doubt Parliament also contemplated that, in many cases, the offenders would be the sole income earners in the family unit."

In that case, he was satisfied that the offender's financial hardship was not so far out of the ordinary as to constitute special circumstances.

Parliament, in enacting the Act, s19, made it clear that notwithstanding the imposition thereby of "severe and unusual hardship" on an offender or his dependants, any period of disqualification imposed on certain offenders could not be ameliorated by the grant of a restricted licence. It is unlikely that Parliament would have condoned the amelioration of the kind of hardship ordinarily encountered by the courts by the backdoor method of dealing with it as a special circumstance authorising the imposition of a period of disqualification less than that otherwise prescribed. In my opinion, to be a special circumstance the hardship demonstrated must amount to a good deal more than hardship which, while properly characterised as severe and unusual, nonetheless does not have the characteristic of falling outside the general run of cases. In Strickland v Whitehead B60/1995, Zeeman J said at 5:

"… a loss of employment and resultant financial hardship is not, as was said by Underwood J in Davies v Kennedy (supra), something that takes the case out of the general run of cases that Parliament had in mind when it enacted s17(5)."

In the present case, the learned magistrate took the view that the hardship likely to be suffered by the respondent would be of a kind falling outside the general run of case.  She recognised that "financial hardship is not enough to qualify as special circumstances".  She said, in delivering her judgment:

"It is the circumstances of Mr Walters which sets him apart from the usual run of offenders.  I will begin by making an observation about Mr Walters as a witness, and I found him to be a responsible witness, a conscientious witness as well as an honest witness.  Many witnesses faced with the prospect of giving evidence in a case such as this might be tempted to overstate their position, perhaps exaggerate their financial affairs or circumstances, but I found that Mr Walters did not do that and he gave his evidence in an objective way without any apparent exaggeration whatsoever.  I'm not going to stay to outline the circumstances of Mr Walters, suffice it to state very briefly that he has a number of business interests.  His marine brokerage business provides his main source of income.  His other business interests represent a significant investment of time, hard work and money, but they're yet to yield results.  It's plain that they have the potential to be income producing, but have not yet reached that stage.  If Mr Walters cannot drive he will not be able to pursue his business as a marine broker.  His ability to drive is absolutely essential for the carrying out of that business.  If he cannot drive that business will fold and produce no income.  As a consequence he will not be able to maintain his other business interests.  It's plain too that this case is unusual because of the way in which Mr Walters' affairs are arranged.  He is not in a position to realise his assets.  His own home is security for a loan for a business interest.  His property at Dodges Ferry, which is half completed, is collateral for an overdraft.  If he receives no income he will not be able to maintain his financial commitments.  I note that he has an obligation to pay some eleven hundred dollars ($1,100.00) per month for the business and property at Scamander.  If he doesn't pay there's every indication that the bank will foreclose and a sale by the bank in a depressed market may well sell for less than he owes.  As to the evidence of a depressed market, I note not only Mr Walters' evidence, but the advice he's received and all the information indicates that there is a depressed market in that area.  I note that it was plain after my questions of Mr Walters that the Dodges Ferry property cannot be sold at this stage to pay for a driver, as that property is collateral for the overdraft.  As a consequence of his loss of business or loss of income from the marine brokerage business his other business interests could not be sustained.  If Mr Walters is to disqualified [sic] for a period of twelve months his business will be drastically affected.  He will lose his income.  He faces the loss of the Scamander property which represents his superannuation and he faces the sale of his home.  Mr Faulds has referred to this consequence as a financial [sic] and it's not an overstatement.  It's plain too, from Mr Walters' evidence, that that would be crushing personally for him, representing a loss of what he has worked for.  It's plain that these circumstances are special.  I note too that the consequences to him represent more than severe and unusual hardship.  In a period of approximately four years I have seen hundreds, if not thousands, of cases involving breaches of the Road Safety Alcohol & Drugs Act.  I see many instances of hardship, but the extent of the hardship and the loss that Mr Walters faces in this case is very unusual."

In my opinion, the learned magistrate did not misdirect herself and she was entitled to reach the factual findings of hardship which she made.  In determining how to exercise her discretion which her finding of special circumstances then required her to next address, she first made a finding that any period of disqualification would cause the respondent "real financial hardship" and that he could manage to fund a driver for no more than three months.  She added:

"… I have no doubt that it is going to be very very difficult for him and his family to manage for that period of time funding a driver, but it will also avoid the very drastic consequences which, in my view, are entirely unacceptable."

In the light of that finding which was open to her on the evidence, I cannot say that her sentencing discretion miscarried when she imposed a period of disqualification of three months and a fine (admittedly the minimum) of $800.

The appeal is dismissed.