Davies v Townsend
[1992] TASSC 70
•6 April 1992
Serial No 16/1992
List “A”
CITATION: Davies v Townsend [1992] TASSC 70; A16/1992
PARTIES: DAVIES
v
TOWNSEND
COURT: SUPREME COURT OF TASMANIA
FILE NO/S: LCA 51/992
DELIVERED ON: 6 April 1992
JUDGMENT OF: Underwood J
Judgment Number: A16/1992
Number of paragraphs: 20
Serial No 16/1992
List "A"
File No LCA 51/992
DAVIES v TOWNSEND
REASONS FOR JUDGMENT UNDERWOOD J
6 April 1992
Appeals from and control over justices – Tasmania – Traffic Act 1925, s36 – Restricted licence – Meaning of public interest – Road Safety (Alcohol & Drugs) Act 1970.
On 14 February 1992, magistrate Mr PJA Wright made an order authorising the grant of a restricted licence pursuant to the provisions of the Traffic Act 1925, s36(1). The applicant seeks a review of that order upon the grounds that error occurred in the learned magistrate being satisfied that the making of the order would not be contrary to the public interest. I am satisfied that such error did occur and that the order must be quashed.
At 8.20pm on 6 June 1991, police intercepted the respondent driving his motor vehicle on the northern outlet road. A breath test indicated that the amount of alcohol in his blood exceeded the prescribed maximum. Consequential breath analysis determined that every 100 millilitres of his blood contained 0.147 grams of alcohol. The respondent was charged with a breach of the Road Safety (Alcohol & Drugs) Act 1970, s6(1) and pleaded guilty.
His counsel told the learned magistrate that, after work, on the evening in question, the respondent went to the Hilltop restaurant and stayed there drinking beer for about 2½ hours. He then got in his car and was driving to his girlfriend's house at Pontville when he was intercepted by police. The respondent was aged 44, divorced and lived at Collinsvale. He was a self employed builder working in partnership with another. On the application for an order under the Traffic Act, s36(1) the learned magistrate was satisfied that disqualification from holding or obtaining a driver's licence would impose severe and unusual hardship on the respondent and that the power to make the order sought should be exercised for the purpose of mitigating or alleviating that hardship. The applicant did not allege that error occurred in the learned magistrate being so satisfied and accordingly, this issue does not fall for consideration upon the motion. However, it is appropriate to observe that the evidence on this issue was scanty.
For many years, the respondent was the senior purchasing officer for the State Department of Housing and built flats in his spare time. By 1983 he owned 14 flats and a house. At that time his marriage broke down and eventually he and his wife were divorced. According to the applicant's counsel, "his wife obtained fifty five percent of the property settlement." There was no examination or cross–examination about the actual value of the respondent's assets following the separation between him and his wife. At or shortly after the time of his marriage break down, the respondent was demoted a grade at work with a resultant salary loss of approximately $7,000 per annum. On a date not specified, but I infer was not long ago, the respondent retired from the Public Service and received a lump sum of $91,000. He said that he applied the money to the cost of building the house he now lives in at Collinsvale. There was no evidence of whether or not the respondent was also in receipt of a periodic payment from the Retirement Benefits Fund Board.
After his retirement from the Public Service, the respondent went into partnership with a Mr Sampson. The partnership carries on the business of building flats and houses. The respondent said in evidence that he borrowed money "against the deed on my house" to go into the partnership. He said that there was $78,000 "owing" to the bank. The respondent said that currently "we're building some units at Austins Ferry, as well as we've been working at Cygnet and Margate and also in Taroona" and that he and his partner were currently engaged on four projects. No books of account, income tax returns, balance sheets or profit and loss figures were produced. In his written application the respondent said he received approximately $250 per week clear. His counsel told the learned magistrate that he received $360 per week. There was no cross–examination about any of that and no evidence at all about the current value of the respondent's assets or the work in hand.
The applicant said that he needed to drive six days a week between 6.30am and 9.30pm so that he could attend to his business. It appears from a passing reference in the applicant's evidence, that was not pursued, that the partners employed others to work in the business; "Well, when living in Collinsvale, you know, that's my sort of base. I've got a big shed up there. We sort of pick people up on the way through. So it would be very difficult because the persons, they don't live in Collinsvale." The following is the full extent of the cross–examination on this aspect of the application:
"Q Now as a self employed person, do you employ labourers you say?
A Yes. Mainly sub contractors, yeah.
Q.Is there any – could you make any arrangements with them to drive you to building sites?
A No not really, because I'm the boss.
Q What about, well ...
A I mean, we pick up gear, we cart the gear to the jobs.
Q But you can still be a passenger and still be a boss can't you?
A Yeah I know but I don't how you could do that from Collinsvale.
QWell you'd arrange for somebody to pick you up from Collinsvale if it's a matter of your livelihood.
AIf it was a matter – I don't think that would work. I don't anyone would come up there every day to pick me up, but that's for you to judge, I suppose.
QWell if he's in your employ you could determine the circumstances of his employment.
AWell I suppose but, it would just make the whole partnership that much unworkable that I don't think it'd exist any more."
On the material before him it seems difficult to understand how the learned magistrate was satisfied that licence disqualification would impose severe and unusual hardship on the applicant but, as mentioned, this is not an issue upon this motion.
The conviction which led to the making of an application for an order authorising the grant of a restricted licence was the respondent's seventh conviction since 1979 for breaches of the Road Safety (Alcohol & Drugs) Act. On four separate occasions between 1979 and 1991, the respondent had driven a motor vehicle with alcohol in his blood in excess of the prescribed maximum. The quantity varied between 0.11 and 0.18 grams per 100 millilitres of blood. On one of these occasions he was also convicted of driving under the influence of alcohol and on another, of driving whilst he was disqualified from holding or obtaining a driver's licence. The last three occasions of unlawful conduct occurred between 1983 and 1985, a period during which the respondent suffered greatly. His marriage failed, and both he and his son were injured in unrelated motor vehicle accidents. At some stage, (it is not clear to me from the evidence whether this was between 1983 and 1985 or at some other time) his brother committed suicide and his sister was killed in an accident. His mother died in 1990. The tragic events which happened between 1983 and 1985 led to the respondent drinking too much alcohol. I accept Mr Wilkinson's submission that excessive consumption of alcohol in such circumstances is not an uncommon, and thus understandable human failing, but I do not accept as either common or understandable repeated breaches of the provisions of the Road Safety (Alcohol & Drugs) Act after excessive consumption of alcohol.
For the offence which led to the making of the order under review, the learned magistrate fined the respondent $1,000 and ordered him disqualified from holding or obtaining a driver's licence for thirty months. In the circumstances, the penalty was clearly appropriate. As the imposition of a more severe penalty would not have reflected error in the exercise of the sentencing discretion, I find the following remarks of the learned magistrate difficult to understand:
"The fact is my duty, rather than a personal inclination, requires me, I think, to fine you no less than a $1,000 and you must be disqualified, I think, for thirty months as a minimum."
I do not understand what personal inclination the learned magistrate could have had other than to do his duty namely, the proper exercise of the sentencing discretion.
The learned magistrate was furnished with a report by a medical officer from the Alcohol and Drugs Service at the John Edis Hospital. The respondent was not alcohol dependent but had a history of alcohol dependency. Between 1982 and 1988 he had been admitted to the John Edis Hospital on five occasions. His longest period of abstinence from the consumption of alcohol was thirteen months during 1985 – 1986. According to the report, since 1988, the respondent has:
"... gained increased insight and motivation with regards to controlling his drinking, and has had much more success in doing so. This has come about since being involved in providing care for his mother who died in 1990, and also being in a new relationship since February this year [1991] with a non drinker. Over this period of time he has averaged two to three stubbies of beer per day, and would drink at a pub only once every three weeks."
The report concluded:
"I conclude from the above information that Mr Townsend has had a long history of alcohol dependency. However, since his last discharge in 1988 his insight and motivation has improved with subsequent greater control and more responsible drinking. He is at risk of having further problems with alcohol and to this effect he has been advised that he is able to seek out–patient counselling at any time should the need arise."
The applicant admitted in evidence that there was a risk that he might drink alcohol to excess if placed under stress but said he would seek counselling if the need arose. From:
1 the applicant's evidence;
2 the Alcohol and Drug Service report;
3the fact that on 6 June 1991 the respondent drove a motor vehicle with almost three times the prescribed maximum concentration of alcohol in his blood; and
4 the respondent's prior convictions for the same offence
it was quite clear that there was a substantial risk that the respondent would drive his motor vehicle on a public street with his judgment impaired by the consumption of alcohol. This risk was apparent to the learned magistrate for he said:
"As is apparent to you, the more troubling aspect of the matter has been the public interest because notwithstanding I've described you as I did, [sic] Dr. Villella says you are at risk of having further problems with alcohol. I would think that that, with respect to him, is an obvious statement because you've had those problems in the past. I wouldn't think anyone, no matter what the nature of their examination or their assessment of you was with that history, would be foolish enough to guarantee that they would never recur [sic]."
His Worship then came up with what seems to be a most unusual proposal that every ten months the respondent see a medical officer at the John Edis Hospital and "to list this application within a month from that appointment, and if everything is alright, and I hope it is, it will only take five minutes on each of those occasions."
Of course, his Worship had no jurisdiction to make an order in those terms, but the significance of his proposal is that it clearly indicates that the learned magistrate was far from satisfied that the respondent would not again become dependent on alcohol and/or would not re–offend. The proposal prompted the respondent to ask the learned magistrate "What, I just come along to court, do I?" He responded by saying:
"No, you'll have to do it by arrangement with Jim, or he might set you up in respect of each time on a once only basis so that you don't have undue trouble and cost, but I'm envisaging that in ten months from now you'll get an appointment with Dr. Villella and then list this application which I'll adjourn for the purpose indefinitely soon after. I'll grant the application in the terms in which it's sought ..."
It is to be regretted that the above exchange is couched in terms which could not help but create in the mind of the disinterested and reasonable bystander a belief that the learned magistrate was not dealing with the respondent and his application in an appropriately detached manner.
To conclude the proceedings before him, the learned magistrate specified conditions customarily specified upon the making of an order authorising the grant of a restricted licence and concluded:
"It's a condition of your licence that you report each ten months from now throughout your period of disqualification to Dr Villella at the John Edis Hospital for the purpose of obtaining updated reports for me on his report dated 6 November."
Reference was not again made to relisting the application. The formal order of the court does not refer to the application being adjourned or relisted. The orders last pronounced by the learned magistrate finally determined the application although the last condition is inappropriate for the contents of any future report would have no consequences except in the circumstances contemplated by s36(7) or (8), being circumstances unconnected with the application then before the learned magistrate.
There is now quite a long line of authority in this Court commencing with In re Stockman, Green CJ 17/1978, to the effect that maintenance of the full force and effect of orders intended to operate as a deterrent is a relevant consideration under s36(4)(c). Further, it is now well established that a fundamental consideration under that sub–section is the likelihood of an applicant putting the public at risk by driving a motor vehicle whilst his or her judgment is impaired by the consumption of liquor. See for example Hayes v Peterson [1972] Tas SR 86; Webb v. Robertson, Chambers J 13/1974; In re Claridge, Cox J 531982; Dillon v Davies, Cox J 12/1990 and two judgments of mine, Lowe v Mansfield, 65/1988 and Driver v Darling, 31/1991.
The respondent consumed liquor in a licensed premises for some 2½ hours. He must have known, at the least, that the quantity of alcohol in his blood might have exceeded the prescribed maximum quantity but he chose to take that risk and drive on a public street. That choice was made in the knowledge that detection and subsequent conviction would, having regard to his record of prior convictions, result in a long period of licence disqualification. To authorise, as the learned magistrate did, the grant of a conditional licence to drive from 6.30am to 9.30pm six days a week in the course of business following the seventh conviction for a drink related driving offence, virtually eliminated the personal and general deterrent effect of the order of licence disqualification. Additionally, the preponderance of the evidence was to the effect that there was a real risk that the respondent might again drive whilst his judgment is impaired by the consumption of alcohol. In these circumstances, the learned magistrate fell into error in concluding that he was satisfied that the making of the order sought would not be contrary to the public interest.
The order made on 14 February 1992 authorising the grant to the respondent of a restricted licence pursuant to the provisions of the Traffic Act, s36(1) is quashed.
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