Butler v White

[1987] TASSC 23

TASSC A11/1987

CITATION:             Butler v White [1987] TASSC 23; A11/1987

PARTIES:  BUTLER
  v
  WHITE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR LCA 4/1987
DELIVERED ON:  18 March 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Cox J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  
           Respondent:  
Solicitors:
           Appellant:  
           Respondent:  

Judgment Number:  TASSC A11/1987
Number of paragraphs:  6

Serial No A11/1987
  File No LDR LCA 4/1987

BUTLER v WHITE

REASONS FOR JUDGMENT  COX J
  18 March 1987

1. This is a notice to review a penalty consisting of a fine of $400, court costs of $14.10 and disqualification from holding or obtaining a licence to drive a motor vehicle for a period of two years imposed upon the applicant for an offence against the Road Safety (Alcohol and Drugs) Act 1970, s6 ("the Act"). The applicant was represented by counsel at the Court of Petty Sessions and pleaded guilty.

1. The facts were that at about 1.30 am on Sunday the 21 December 1986 police officers on patrol on the Bass Highway observed a car in a ditch at the junction of the highway and Hagley Station Road. The applicant was the driver and commented that he had not "made the corner". His breath smelt strongly of intoxicating liquor and he was somewhat unsteady on his feet. At the Westbury Police Station a breathalyser test was conducted and a reading of 0.20 grams of alcohol in 100 millilitres of blood resulted. He was 33 years of age, had no previous convictions, was separated from his wife and lived about eight kilometres from the scene of the accident in a rented cottage. Though possessing no qualifications he had been in regular employment since leaving school at the age of 16 and was then earning about $300 per week net as a plant operator and a further $100 per week as a part time farrier.

1. By way of explanation it was said that he attended the Hagley Hotel the previous evening, as was his usual practice most Friday and Saturday evenings, although he normally only stayed about one and a half hours. On this occasion he stayed a lot longer and when leaving felt confident that he was not affected by alcohol. At the turn–off half a kilometre away he accidentally dropped a lighted cigarette between his legs and ran into the ditch in the process of retrieving it during the turn. There was no other traffic on the road.

1. I shall not here repeat the general observations I have made in the contemporaneously published case of Shaw v Crawford about the nature of this appeal and the policy of the Act. Although the applicant was not charged under s4 with driving under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of his vehicle, it is clear that he was affected to some lesser degree by the ingestion of alcohol and this was a factor which could properly be taken into account without offending the principle expressed in Lovegrove v The Queen [1961] Tas SR 106 and commented on in Wise v The Queen [1965] Tas SR 196 and Prokopiec v The Queen [1982] Tas R 170. The reading was a high one and the learned magistrate was within his rights in taking judicial notice as he did that on the Bass Highway at Hagley one is likely to encounter traffic, including heavy traffic, at all hours of the day and night.

1. In my view this was a serious offence and one deserving severe punishment. The fine was well within the applicant's capacity to pay and in itself a disqualification of two thirds of the maximum permissible for a first offence was not out of proportion. My attention was drawn to the decision of Chambers J in Czyz v Robertson, 15/1974, where his Honour, while not altering the fine imposed, quashed a sentence of 18 months' disqualification for an offence against s6 of the Act where the reading was 0.17% and substituted a sentence of 9 months' disqualification. His Honour observed that the fine was a heavy one "and to couple with this a disqualification period which represented 75% of the maximum period permitted by law, makes the penalty one which ought to be classed as manifestly excessive in all the circumstances". There are however three clear points of distinction between that case and the present. To begin with the maximum permissible period of disqualification at the time was two years, whereas now it is three, and the present penalty represents two thirds of it not three quarters. Second, Mr Czyz was a 60 year old man who had no previous convictions and was known to have driven in this country over the previous 20 years. In those circumstances his antecedents were such as to justify a substantial measure of leniency being extended to him. Third, while a reading of 0.17% may still be described as moderate (especially when at the time the prescribed concentration was 0.08%) a reading of 0.20% or four times the prescribed concentration, cannot be considered as anything but high.

1. It is true that this applicant also had a blameless record, and it would be right to give him some credit for that, although I would not regard it as being as significant as that of Mr Czyz. The learned magistrate was not told how long he had held a licence, but if he had procured one when he  was aged 17 years, that represents a fairly significant period of time without attracting any convictions. Nevertheless, the learned magistrate clearly took into account the applicant's driving record which he described as "an excellent one up until now" and in the end it is a question of whether or not, in all the circumstances, it has been shown that the sentence is manifestly excessive. It was in my view at the top end of the range, but I cannot say that I am persuaded that it was manifestly excessive. The appeal must be dismissed.