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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bottomley v McDonald

Details

AGLC: Bottomley v McDonald [2002] TASSC 27
Case: [2002] TASSC 27
Decision Date: 10 May 2002

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Katrina Anne Bottomley appealed against a decision by a magistrate to impose a fine of $750 and disqualify her from driving for 15 months for driving under the influence of alcohol. The dispute centered on the magistrate's refusal to consider certain personal circumstances of the applicant as "special circumstances" that would warrant a lesser penalty than the statutory minimum. The legal issues the court needed to decide included whether the magistrate erred in applying the wrong test in evaluating the applicant's circumstances and whether the magistrate's decision to not reduce the penalty was justified.

The court found that the magistrate did not err in applying the wrong test when considering the applicant's circumstances. The magistrate had explicitly stated that he was using a restricted licence application as a "useful parallel" and was focusing on the potential impact of the disqualification on the applicant's employment. The court also noted that the expression "special circumstances" in the relevant statute covers both the offence and the offender and requires something extraordinary, unusual, or atypical. The court emphasized that the presence of special circumstances does not mandate a lesser penalty; instead, it grants the court discretion to decide whether to impose a lesser penalty. The court concluded that it was within the magistrate's discretion to determine that the applicant's circumstances were not sufficiently special to warrant a reduction in the penalty. The court found that the penalties imposed were appropriate given the seriousness of the offence.

The motion to review was dismissed, and the penalties imposed by the magistrate were upheld.

Orders