Davies v Hewitt

[1990] TASSC 55

Serial No 53/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Davies v Hewitt [1990] TASSC 55; A53/1990

PARTIES:  DAVIES
  v
  HEWITT

FILE NO/S:  LCA 65/1990
DELIVERED ON:  2 October 1990
JUDGMENT OF:  Cox J

Judgment Number:  A53/1990
Number of paragraphs:  10

Serial No 53/1990
List "A"
File No LCA 65/1990

DAVIES v HEWITT

REASONS FOR JUDGMENT  COX J

2 October 1990

1. Notice to Review the penalty of a fine of $250.00 and court costs of $17.00 imposed in the Court of Petty Sessions on the respondent's plea of guilty to one count of an offence against the Road Safety (Alcohol and Drugs) Act 1970, s6(1). The applicant's main complaint is that the learned magistrate declined to impose any period of disqualification for holding or obtaining a licence to drive a motor vehicle.

1. The grounds of appeal are as follows:

1The learned magistrate erred in fact and in law in exercising his discretion not to disqualify the respondent from holding or obtaining a driver's licence on the basis that had the respondent made an application pursuant to s36(1) of the Traffic Act 1925 for an order authorising the granting to her of a restricted licence the learned magistrate would not or alternatively could not have made that order.

2The learned magistrate erred in fact andor in law in exercising his discretion not to disqualify the respondent from holding or obtaining a driver's licence in all the circumstances of the case.

3The learned magistrate erred in fact and in law in imposing a penalty upon the respondent that was manifestly inadequate in all the circumstances of the case.

1. The facts are that at 1.05am on Sunday 27 May 1990 police intercepted a Range Rover being driven by the respondent on the Tasman Highway approaching the Tasman Bridge. Police were on mobile patrol conducting random breath tests at the time. The respondent submitted to an Alcotest and as a result was required to furnish a sample of breath for analysis. That produced a reading of .121% and she was charged and bailed forthwith. Traffic was light and conditions were fine at the time. She had one passenger. She stated that her reason for driving after consuming alcohol was that she did not believe that she would exceed the prescribed concentration of alcohol in her blood. She stated that she had had four or five white wines with dinner and four rum and cokes thereafter. Her first drink had been consumed at 7.45pm and her last drink at about 11.15pm at a restaurant in Salamanca Place Hobart. The respondent was aged 33 years, resided with her husband and children aged 4 and 3 at Lauderdale, and notwithstanding having held a driver's licence for the past 16 years, had no prior convictions. Until the end of 1989 she had been employed by the Education Department, being the holder of a degree in Education.

1. In mitigation, the court was told that the respondent had spent the Saturday working on renovations to her home and it had been decided that she and her husband would dine out at a restaurant with friends. It was agreed that the respondent should be the driver that evening, and she sought to take adequate precautions against exceeding the prescribed concentration of alcohol by drinking water while consuming wine with the meal and desisting from any further alcoholic drinks at 11.15pm, some hour and a half before her driving recommenced. She had not appreciated that she was probably driving at a time when the level of alcohol in the blood had reached a peak. Furthermore, because of her build, the alcohol consumed had had a greater effect upon her. The court was also told that the respondent had been working for the past five months on a voluntary basis one day per week for the Early Special Education Programme run by the Education Department. She had been working with infants with a broad range of disabilities. The teacher–in–charge said in a letter produced to the court:

"We find Mrs Hewitt's input into our programme extremely valuable. As a direct result of her involvement, we have been able to extend the time offered to disabled children receiving motor skills lessons. Unfortunately we do not have the financial resources to transport Mrs Hewitt to the Centre."

Counsel for the respondent submitted that in the event that she was disqualified from driving, she would not be able to continue this work and that although application would, on his instructions, be made for a restricted licence, it seemed likely, in view of the decision of Neasey J in Shaw v Davies No B35/1990, a decision published a few days earlier, that she would be unable to demonstrate that she would suffer severe or unusual hardship, any hardship falling instead on the Special Education Programme and the children for which it catered. The prosecutor confirmed that any such application would be opposed.

1. The learned magistrate, in passing sentence, said:

"Mrs Hewitt, I am not bound to disqualify you and in the exercise of my discretion I am not going to for a number of reasons. In the nature of cases such as these the reading is not a high one. You have produced it no doubt because you are a small female and therefore are not able to consume and eliminate as much alcohol in such short time as a male is able to. There was nothing untoward about the nature of your driving which brought you under notice. In addition you have had a licence I was told for 16 years without a blemish. That fact alone entitles you to some credit. Also a mitigating factor is that you gave specific advertence to the quantity and rate of consumption of your alcohol and it is only because you have not encountered previous difficulties such as at present that you are unaware precisely of the way in which those matters were related but you attempted to do so. It is true too, I think, as Mr Dixon said, that you were probably apprehended at the peak of your alcohol reading, and lastly I think it is correct to say that were you to be disqualified I could not alleviate that disqualification by reason of the fact that you are providing altruistic and voluntary services to disadvantaged children in this State, and the fact that I could not is a matter in my mind of great shame but that does not mean that I have to take a completely blinkered approach to that fact which I think is worthy of recognition and proper acknowledgment. I intend to give it such proper acknowledgment in connection with the other factors by deciding not to disqualify you. Nonetheless it was an offence. I think you ought to pay a monetary fine of $250.00."

1. A convenient starting point is the decision of the Full Court in Boyd v Peters [1988] Tas SR 66 where, in the joint judgment of the court, it was said of the relevant penalty section (at p72):

"The clear intention, manifested by the unambiguous words of s17(1), is to leave it to the discretion of the sentencer whether or not an order for licence disqualification for a period up to a maximum of three years should be made in any given case. Such a discretion must, of course, be exercised in accordance with judicial principles. Those principles include an obligation to take into account the notorious fact that 'drink driving' is a grave social evil carrying with it a substantial risk of causing death, serious injury and loss, that the offence is prevalent and that the imposition of penalty must take into account the need to deter not only the offender from repeating the offence, but others who might be tempted to act in the same way. It follows from the foregoing and from the fact that the prospect of licence disqualification is generally accepted to be an effective deterrent that a case of conviction for driving a motor vehicle with a blood alcohol content in excess of the prescribed minimum will usually, in the absence of mitigating circumstances, or circumstances justifying an individualised approach, call for the imposition of a period of disqualification."

1. In Middleton v Thompson B55/1989, Nettlefold J referred to that passage and said of the case he was reviewing:

"The primary and critical question for the learned magistrate was whether this was one of those exceptional cases where an individualised approach was to be given primacy over considerations of deterrence. He decided that it was. It is clear that some others, if placed in the position the learned magistrate was in, would have decided otherwise. But, fortunately for the respondent, the decision was to rest with this learned magistrate and not with anyone else. That being so, the question is not whether I presume to agree or disagree but whether the decision has been shown to be plainly wrong within the principle cited from Cranssen ((1936) 55 CLR 499 at p519)."

That case was one in which the respondent, not being eligible by reason of prior relevant convictions to apply for a restricted licence but demonstrably being likely to suffer severe and unusual hardship should she be disqualified for driving, had had her case dealt with under the Probation of Offenders Act 1973, s6, the learned magistrate imposing a probation order and not proceeding to conviction and sentence. Netttlefold J dismissed the appeal saying that the learned magistrate had resolved in a way which was not unreasonable the conflict between the public's interest in deterring people from committing the offence in question and its interest in taking all reasonable steps to give assistance and consideration to young single mothers striving to rear young children, particularly sick and disadvantaged young children. If that case was rightly decided as, with respect, I think it was, it demonstrates that the court's inability to alleviate hardship by means of the provisions relating to the issue of restricted licences can be a proper factor to be taken into account in exercising the sentencing discretion. I do not accept the submission put to me by the applicant that the only proper vehicle through which the court should take cognisance of hardship is an application for a restricted licence and that the court should ignore hardship which is not of the kind contemplated by those particular provisions. Accordingly, I do not find ground 1 made out.

1. Grounds 2 and 3 can be considered together. The particular matters to which the learned magistrate adverted, in addition to the possible hardship to disadvantaged children caused by disqualification, were of varying weight. The respondent's altruistic and voluntary services, like any meritorious antecedents, were in her favour, as was the fact that in 16 years of driving she had not committed any other offence. Her actual driving was not untoward, but the same can be said, no doubt, for the majority of offenders detected at random. Her attempts to stay within the permissible blood alcohol limit and her miscalculations in that regard are not uncommon and the misfortune of being tested when the concentration of alcohol is at its peak is shared by many offenders. The limitations due to her build on her ability to metabolise the alcohol consumed was not, in my view, a relevant factor.

1. While some may not regard the combined weight of these factors as sufficient to justify a sentence which does not involve a period of disqualification, I cannot say that the course adopted by the learned magistrate was contrary to the proper exercise of his discretion. The fine was quite substantial, having regard to the fact that the respondent was a young married woman with two small children, all of them being reliant upon her husband's wages. I do not think it can be said that, all things considered, the sentence was manifestly inadequate or that the learned magistrate in any way erred in failing to impose a period of disqualification.

1. The appeal is dismissed.