Davies v Fox

[1991] TASSC 54

Serial No 28/1991
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Davies v Fox [1991] TASSC 54; A28/1991

PARTIES:  DAVIES
  v
  FOX

FILE NO/S:  LCA 7/1991
DELIVERED ON:  10 May 1991
JUDGMENT OF:  Cox J

Judgment Number:  A28/1991
Number of paragraphs:  7

Serial No 29/1991
List "A"
File No LCA 9/1991

DAVIES v FOX

REASONS FOR JUDGMENT  COX J

10 May 1991

1. Notice to Review a penalty of a fine of $200.00 with costs of $79.00 for a breach of s6(1) of the Road Safety (Alcohol and Drugs) Act 1970. No disqualification for holding or obtaining a licence to drive a motor vehicle was imposed. The sole ground of appeal is that the sentence was manifestly inadequate.

1. The circumstances were that the respondent attended a special evening with her husband last June at football club rooms. The couple left their children at the home of the appellant's mother in Lutana, and their car as well, before travelling by taxi to the function. At its conclusion, instead of taking a taxi to their home in Claremont, they took one to the appellant's mother's home, picked up the car, and the appellant commenced to drive it home intending to return the next day to collect the children. She was stopped for a random test and recorded a reading on breath analysis of .115%.

1. During the function she had consumed about three glasses of wine, and shortly before leaving, consumed half to three–quarters of a drink of Coca–cola mixed with either whisky or rum procured for her by a friend of her husband. Because it was strong, she did not drink it all. It was her belief that she was fit to drive and that the concentration of alcohol in her blood was not in excess of the prescribed amount. She was astonished at the reading. Her counsel, in what was submitted to be a veiled suggestion that she was menstruating at the time, told the magistrate:

"She really I suppose does become another factor or statistic in the female factor as your brother magistrate Mr Matterson puts it because from writings in relation to breathalyser readings it would seem that at certain times of the month a female's reading can be increased quite markedly and really it's a situation where a female just can't drink and drive with any degree of confidence at all."

1. She was 31 years old, had driven for fourteen years and had part–time employment yielding $250.00 per week. Her husband's work commitments took him away from home frequently, and a suspension of licence would inconvenience her during his absences and present difficulties in transporting children to school and sporting activities in addition to keeping to her own busy schedule. She had been convicted on 13 November 1986 of a similar offence, the reading then being .08%, and fined $100.00 with costs of $14.00 and awarded four demerit points.

1. The tape recording of the learned magistrate's comments on passing sentence appears to be corrupt, but in part he said:

"Well at the outset two facts are plain as Mr Wilkinson said. This is the second occasion on which you have fallen foul of this legislation. It's just as plain however that as he concluded by saying a normal person who'd had as much to drink or rather as little to drink as you had over the period in which you'd had it could reasonably have expected to be driving lawfully thereafter and those two facts or the second fact rather notwithstanding the first leads me to conclude that it's not mandatory or essential to require you to be disqualified on this occasion."

1. In my reasons for judgment in Davies v Mooy 27/1991 published this day, I have adverted to the principles to be applied in cases of this kind. In my view, the fact of a previous similar conviction 3½ years before this offence clearly called for a penalty of personal as well as general deterrence. The circumstances mentioned in mitigation were not, in my view, such as to justify an individualised approach. There was no reason to suppose that she was affected by her physical condition in any abnormal way or in one not hitherto encountered by her. Again, it is the not unusual case of a person who miscalculates the quantity or strength of the alcohol consumed and metabolised, but who chooses to run the risk that the blood alcohol concentration exceeds the prescribed minimum. In the circumstances of this case where the respondent had a previous conviction, the monetary penalty without disqualification can fairly be described as manifestly inadequate.

1. The sentence is quashed. I reimpose the same fine and court costs and order that in addition the respondent be disqualified for holding or obtaining a licence to drive a motor vehicle for a period of three months.