Bottomley v McDonald

[2002] TASSC 27

[2002] TASSC 27

CITATION:              Bottomley v McDonald [2002] TASSC 27

PARTIES:  BOTTOMLEY, Katrina Anne
  v
  McDONALD, Scott

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 74/2001
DELIVERED ON:  10 May 2002
DELIVERED AT:  Hobart
HEARING DATES:  19 April 2002
JUDGMENT OF:  Blow J

CATCHWORDS:

Traffic Law - Offences - Alcohol and drug related offences - Tasmania - Driving under the influence of alcohol - Minimum penalty - Special circumstances.

Road Safety (Alcohol & Drugs) Act 1970 (Tas), s17(5).
Dellar v Crawford (1992) 62 A Crim R 171; Johnston v Davies (1992) 1 Tas R 183, referred to.
Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
           Applicant:  T D Cox
           Respondent:  F C Neasey
Solicitors:
           Applicant:  Wallace Wilkinson & Webster
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2002] TASSC 27
Number of Paragraphs:  9

Serial No 27/2002
File No LCA 74/2001

KATRINA ANNE BOTTOMLEY v SCOTT McDONALD

REASONS FOR JUDGMENT  BLOW J

10 May 2002

1. The applicant has moved the Court to review an order of a magistrate whereby she was fined $750 and disqualified from driving for 15 months on a charge of driving under the influence of intoxicating liquor contrary to the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), s4.  Under the Act, s17(3), the learned magistrate was required to disqualify her from driving for at least 12 months unless, pursuant to s17(5), he was satisfied that there were "special circumstances why … the minimum period of disqualification … should not be imposed".  The learned magistrate rejected a submission that there were special circumstances by reason of which a period of disqualification of less than 12 months should have been imposed.  The applicant is aggrieved by the rejection of that submission.

1. The applicant committed the offence in question on 15 December 2000.  The previous night, she had learned that two very young children to whom she was related had been killed in a terrible accident on the mainland.  On the evening in question, she attended a Christmas function, having made arrangements not to drive.  She had too much to drink, and set out to drive home with a blood alcohol concentration later measured to be 0.208 grams per 100 millilitres of blood.  While driving from Hobart towards Kingston on the Southern Outlet, she almost collided with several vehicles, and on one occasion collided with a guard rail, but did not stop.  Another motorist rang the police on a mobile phone.  The police intercepted her at Kingston, where she nearly collided with another car, drove on the wrong side of the road, and disobeyed a red light.  The learned magistrate was told that the applicant was a human resources officer employed by a public authority; that she had a child with attention deficit hyperactivity disorder whose management sometimes required her to drop everything and go immediately to his school, as well as taking him to appointments for the purposes of treatment; and that a lengthy period of disqualification would mean she would have to resign from her employment and/or change her address.  She gave evidence to that effect.  The learned magistrate did not believe that she would have to resign or move house, and refused to make findings to that effect. 

1. A number of other matters were put to the learned magistrate in support of the submission that there were special circumstances.  The applicant's former husband, to whom she was married for ten years but from whom she had been separated for three years, suffered a terrible head injury three months after their marriage, resulting in three years' treatment as an inpatient, a few suicide attempts by him, stressful litigation, partial paralysis, and the need for a lot of assistance from her.  The former husband was not helping her to care for their children.  Property litigation between them had not been settled.  A relationship with another man had recently ended in unpleasant circumstances.  The applicant had had two cancer scares ¾one involving a breast lump and one apparently involving a pre-cancerous condition of the cervix.  She was seeing a psychologist and her general practitioner about her emotional state.

1. In considering whether the applicant would have to resign from her employment, the learned magistrate evaluated her evidence by reference to the "severe and unusual hardship" test that applies in restricted licence applications pursuant to the Traffic Act 1925, s36. Mr Cox submitted that the learned magistrate erred in law in taking that course, in that he adopted a wrong test. I reject that submission. The learned magistrate made it clear that he was treating a restricted licence application as "a useful parallel". He said he was focusing his attention on the proposition that the applicant would be forced to give up working for the duration of her disqualification because that was the factor that was potentially "sufficiently special" to justify a disqualification or fine below the "minimum". In the light of those comments, I think it is plain that he did not apply a wrong test, as submitted by Mr Cox.

1. As to the other factors relied on by the applicant, the learned magistrate said the following:

"The other factors could be regarded as special in the abstract, but they are not the factors viewed in isolation which are sufficiently pressing to take into account to the extent of reducing the disqualification below the 'minimum'.  They don't bear, in isolation, sufficient relationship with the disqualification which the defendant fears to warrant that disqualification being reduced below the minimum.  There is no sufficient link between them.  The link between those factors and disqualification relies upon the final brick in the wall, which is that the defendant would have to give up work and/or change addresses in order to be able to simply continue to care for her family."

1. The expression "special circumstances" in s17(5) covers circumstances both of the offence and the offender.  For there to be special circumstances, there must be something extraordinary, unusual or atypical.  See Dellar v Crawford (1992) 62 A Crim R 171 at 177 - 178, and Johnston v Davies (1992) 1 Tas R 183 at 189. Special circumstances must be clearly distinguishable from the general run of cases that Parliament had in mind when it provided for the penalty of disqualification: Davies v Kennedy 81/1992 (Underwood J); Turner v Visser 93/1998 (Evans J).  Significantly for the purposes of this case, s17(5) does not require that a period of disqualification or fine less than the normal minimum should be imposed whenever special circumstances exist.  In Johnston v Davies (supra) at 191, Crawford J said:

"It is to be noted that unlike the legislation considered by Bray CJ in Baskerville v Martin [1967] SASR 156, s17(5) does not provide that the court shall or must impose a lesser fine or lesser period of disqualification if it is satisfied that special circumstances for that course exist.  What the subsection provides is that if the court is satisfied that there are special circumstances why the minimum penalty should not be imposed, the court may impose a lesser penalty.  This serves to emphasise that a discretion is given to the court and notwithstanding that there may be special circumstances justifying a penalty less than the prescribed minimum, the court nevertheless has a discretion whether it should sentence accordingly. This further emphasises the need for the court to have regard to all the circumstances of the particular case, not only those relied upon by the defendant as being "special circumstances" but also the other circumstances which might influence the court whether or not to exercise the discretion in favour of the defendant, whether it be a very high blood alcohol reading or anything else."

1. In deciding whether a group of circumstances is sufficiently special to enliven the discretion conferred by s17(5), a magistrate is required to make a value judgment.  An appeal by way of notice to review is not to be treated as an appeal by way of rehearing, but is to be treated in the same way as an appeal from the verdict of a jury: Richardson v Shipp [1970] Tas SR 105 per Burbury CJ at 117; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 per Cox CJ at pars7 - 8. In my view it was open to the learned magistrate to conclude, and not unreasonable for him to conclude, that the circumstances relied upon were not sufficiently special to enliven the s17(5) discretion. They provided a motive for the applicant to get drunk, but were irrelevant to the impact of a lengthy disqualification, and afforded no excuse for her driving after she had been drinking to excess. Not every unusual combination of circumstances will enliven the s17(5) discretion. On this basis, I think the motion should be dismissed.

1. The learned magistrate took the view that it was an appropriate exercise of his sentencing discretion for him to impose a fine above the normal minimum and a disqualification period above the normal minimum.  If, contrary to the view I have expressed, the applicant's circumstances were so special that the s17(5) discretion was enlivened, I think the penalties actually imposed compel the conclusion that the learned magistrate would have regarded the applicant's offence as so serious that he would not have imposed a disqualification period below the normal minimum.  If, contrary to the conclusion I have reached, the learned magistrate erred in regarding the applicant's circumstances as insufficiently special, the inevitability of him imposing a disqualification period not below the normal minimum means that no substantial miscarriage of justice has occurred, and that the appropriate course is for this motion to be dismissed pursuant to the Justices Act 1959, s110(2)(ab).

1. For these reasons, the motion to review is dismissed.