Crawford v McKay

[1987] TASSC 117

Serial No B47/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Crawford v McKay [1987] TASSC 117; B47/1987

PARTIES:  CRAWFORD
  v
  McKAY

FILE NO/S:  LCA 30/1987
DELIVERED ON:  5 November 1987
JUDGMENT OF:  Nettlefold J

Judgment Number:  B47/1987
Number of paragraphs:  5

Serial No B47/1987
List "B"
File No LCA 30/1987

CRAWFORD v McKAY

REASONS FOR JUDGMENT  NETTLEFOLD J

5 November 1987

1. Notice to review the order of a magistrate made in the Court of Petty Sessions at Launceston on 9 September 1987 whereby the learned magistrate when the respondent's plea of guilty to a complaint alleging an offence contrary to s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 ordered that the respondent be fined the sum of $175 with costs of $14.10 upon the ground that the learned magistrate erred in fact and in law in that in all the circumstances of the case the sentence imposed by him was manifestly inadequate.

1. In substance the facts were that at 12.40am on Sunday the 30 August the respondent was travelling in a southerly direction on Vermont Road when she was required to submit to a random breath test. She did so and then submitted to a breath analysis, returning a reading of 0.10. At the time traffic flow was medium and the weather was fine. The respondent had no prior convictions.

1. The respondent was represented by counsel before the learned magistrate. Expressed in summary form the submissions of counsel were:–

(1)The facts stated by the prosecutor were admitted.

(2)The respondent was 46 years of age, married with three children. All the children were themselves married and not dependant on the respondent.

(3)The respondent is a law clerk employed in Launceston receiving an income of $280 nett per week. Her husband receives $230 nett per week. Their financial circumstances are quite stable.

(4)On the night in question the respondent had gone to her daughter's house at Rocherlea for a dinner party. She did not intend to drink to excess. She was not feeling particularly well and did not have a great deal to drink. She arrived at approximately 7.00 p.m. and consumed some four to five glasses of wine up until about 10.30 p.m. when she stopped drinking. Between 10.30 p.m. and approximately midnight she drank water only. She intended to drive home.

(5)At midnight they attempted to hire a taxi having decided that that might be the prudent thing to do. The house where they were did not have a telephone. It was found that the telephone box down the road was out of order. In these circumstances the respondent's husband decided that he would be fit to drive and he commenced to drive them home. However, after a short distance he decided he was too tired to drive.

(6)The respondent took over. She directed her mind to the question whether she was capable of driving and she decided that she was based on the reasoning that she had not consumed anything for about 1½ – 2 hours. She felt capable of driving and entertained the honest opinion that she would not be over the limit.

(7)The respondent has been driving for some 26 years and has no prior convictions. It was her normal practice and her husband's normal practice that, if they were going to go anywhere to drink they either stayed the night or caught a taxi.

(8)It was simply a miscalculation on the part of the respondent who had attempted to make a responsible decision.

1. The learned magistrate said:

"Just stand up please Mrs. McKay.

I take into account those factors and principally these, that you have been driving for 26 years without any conviction whatsoever, that your reading of .10, whilst double the limit, is not a high reading, that you had endeavoured to comply with the legislation by ceasing drinking 1½  hours or so before you left, but as I understand the figures alcohol from wine decays in the blood stream only at the rate of about one glass per hour, so it takes quite a long time to lose any reading. You fall just within that class of persons where the court need not of necessity proceed to disqualification.

You are fined $175 and you will pay the costs of $14.10.

Fourteen days to pay, if not paid in that time 8 days jail."

1. For the reasons I have given in the case of Crawford v Atkins B48/1987, decided today, this appeal is dismissed.