Dillon v Davies
[1990] TASSC 18
•14 May 1990
Serial No 12/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Dillon v Davies [1990] TASSC 18; A12/1990
PARTIES: DILLON
v
DAVIES
FILE NO/S: LCA 5/1990
DELIVERED ON: 14 May 1990
JUDGMENT OF: Cox J
Judgment Number: A12/1990
Number of paragraphs: 9
Serial No 12/1990
List "A"
File No LCA 5/1990
DILLON v DAVIES
REASONS FOR JUDGMENT COX J
14 May 1990
Notice to review the dismissal of an application pursuant to the Traffic Act 1925 (the Act), s36, for an order authorising the granting to the applicant of a restricted licence. He had been convicted on 23 February 1990 of an offence against the Road Safety (Alcohol and Drugs) Act 1970, s6, the reading being 0.175 grams of alcohol in 100 millilitres of blood and had been sentenced to a fine of $350.00 and disqualification for holding or obtaining a licence to drive a motor vehicle for a period of nine months.
The applicant is a married man aged 55 years, employed by his family company, Kingston Earth Works Pty Ltd, as the works' supervisor of its operations. On the day of the offence, namely 20 December 1989, he had attended a number of work sites where he drank a small amount of alcohol, it being the day on which his industry broke up for Christmas, and in the evening he attended the Kingston Beachside Hotel where he consumed more alcohol with members of his office staff. He was on his way to his home, which is a short distance from the hotel, when he was subjected to a random breath test and recorded the above reading. There was no suggestion that he drove in a hazardous way. If anything was remarkable about his driving it was his relatively slow speed.
The applicant had been driving nearly all his adult life in the course of his occupation. His prior convictions were:
Victoria
27. 2.70 Exceed 0.05% Fined $30.00 Disqualified 3 months
Tasmania
10. 6.76 Failed to Give Way Infringement Notice $15.00
2. 8.84 Failed to Wear Seat Belt Fined $10.00
10. 1.86 Exceed 0.05% (0.12%) Fined $100.00 Disqualified 6 months
Restricted Licence granted
14. 4.87 Parking Fined $20.00
This conviction thus represented his third drink–driving conviction and his third disqualification; otherwise his record was minor.
The learned magistrate accepted that the disqualification would cause the applicant severe and unusual hardship. There was also unchallenged medical evidence that the applicant was not alcohol dependent. In the course of submissions from the applicant's counsel, the learned magistrate adverted to the facts that the applicant had already been granted a restricted licence four years earlier, that he had over three times the maximum permissible concentration and that it could not be said that he was driving for some purpose which would evoke feelings of sympathy for him such as some urgent family matter. He also referred to the decision of Green CJ in re Stokman No 17/1978 ((1959-1995) 14 Tas R 68) for the proposition that in some cases it would be appropriate to conclude that:
"...the applicant's history is such, that the need to preserve the full punitive or deterrent effect of an order of disqualification outweighs other considerations to such an extent that to issue a licence would be contrary to the public interest".
Finally he said:
"He is a man of good character apart from traffic sense (sic) because of some convictions he has and in all the circumstances I would be prepared to grant him a restricted licence if it was not for the fact that he has already had one within the last four years. Now s36(4) (says):
'No order shall be made under this section unless the magistrate is satisfied–
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(c) that the exercise of these powers would not be contrary to the public interest'.
Well you see, I am not so satisfied and para(b) says:
'and an order shall not be made under this section unless a magistrate is satisfied that the powers of this section should be exercised for the purpose of mitigating or alleviating that hardship'".
Section 36(4) of the Act provides:
"4 No order shall be made under this section unless the magistrate is satisfied –
(a)that the disqualification will impose or is imposing severe and unusual hardship on that person or his dependents;
(b)that the powers of this section should be exercised for the purpose of mitigating or alleviating that hardship; and
(c)that the exercise of those powers for that purpose would not be contrary to the public interest."
In re Stokman (supra) Green CJ said at pp4–5:
"In considering for the purposes of s36 whether the issue of a licence would be contrary to the public interest, I agree that amongst the matters that a court should consider are the gravity of the offence giving rise to the disqualification, the circumstances surrounding the commission of that offence and the likelihood of whether, if granted a restricted licence, the applicant might commit further offences or be a danger to other road users. But in addition, I think that a court which is asked to make an order under s36 should have regard to the fact that the applicant has been disqualified by a court which in exercising its sentencing discretion was required to take into account all relevant circumstances and was required to assess the extent to which it was necessary to make orders having a special or general deterrent effect. There is a clear public interest in seeing that orders which are intended to operate as deterrents are given full force and effect and in my view, therefore, the possibility that the granting of an application under s36 might unduly reduce the punitive or deterrent effect of an order of disqualification would be relevant to the determination of the question of whether a court was satisfied that the issue of a restricted licence would not be contrary to the public interest. Thus one of the reasons why it would be appropriate for a court hearing an application for a restricted licence to have regard to the applicant's previous convictions would be so that the court would be able to see whether the applicant was a persistent offender who in the public interest it was especially necessary should be made the subject of orders having a deterrent effect. But in saying that, I am not suggesting that whenever a court hearing an application under s36 concludes that to issue a restricted licence would significantly reduce the punitive or deterrent effect of an order of disqualification the court should automatically refuse the application. That would largely defeat the purpose of s36. However, I am holding that such a conclusion would be relevant to the determination of whether the court was satisfied that the issue of such a licence would not be contrary to the public interest and that in some cases it would be appropriate for the court to conclude that the offence for which the disqualification was imposed was so serious, or so prevalent, or that the applicant's history was such, that the need to preserve the full punitive or deterrent effect of an order of disqualification outweighed other considerations to such an extent that to issue a licence would be contrary to the public interest."
In re Claridge No 53/1982 I had occasion to cite the same passage from the judgment of His Honour The Chief Justice and added (at p10):
"It must be remembered that the applicant is not entitled as of right to the grant of a restricted licence if the conditions laid down in s36(4) paragraphs (a) and (c) are established on the evidence. The making of such an order remains a matter of discretion. Of course such a discretion must be exercised judicially, but looking at the question in a slightly different way to that in which the Chief Justice viewed it, even though the Magistrate is satisfied as a matter of fact as to the existence of hardship and that the exercise of these powers would not be contrary to the public interest in the sense that there may be no direct threat to the safety or convenience of other road users (compare with the observations of Neasey J in Hayes v Peterson, Serial No 56/72) nonetheless, there remains the question whether or not as a matter of discretion the restricted licence ought to be granted. Indeed that discretion seems to be directly reflected in paragraph (b) of the subsection which prohibits the making of an order unless the Magistrate is satisfied 'that the powers of this section ought to be exercised for the purpose of mitigating or alleviating (the) hardship'."
In the present case, the applicant can point to no specific error in the learned magistrate's conclusion. The substance of the submission was that he erred in refusing the application merely because the applicant had had one restricted licence already, and that before the application could be refused, some other factor should be present such as the gravity of the offence, persistence in offending or the likelihood of repetition. I do not think the learned magistrate refused the licence only on the basis that the applicant had already had the benefit of one four years earlier, even though he said that but for that fact he would have been prepared to grant him one. Rather it was that fact which tipped the scales and prevented him from being satisfied that he should exercise his powers of granting a restricted licence. The learned magistrate had already referred to the reading being three times the maximum permissible concentration, a fact which made the offence a serious one whether or not such a reading happens to be average for offences of this type and had noted the absence of any mitigating facts concerning the applicant's decision to drive in that condition. He was also well aware that this was the applicant's third such conviction, although the first was nearly twenty years old. In these circumstances, the fact that the applicant had not been deterred by a conviction four years earlier, the effects of which had been mitigated by the grant of a restricted licence, was a cogent reason for him to seriously consider whether or not "the need to preserve the full punitive or deterrent effect of an order for disqualification outweighed other considerations to such an extent that to issue a licence would be contrary to the public interest" (per Green CJ in re Stokman (supra)). As already mentioned these words had been adverted to by the learned magistrate in arguendo and it is clear that in the end result he was not satisfied that the exercise of his powers would not be contrary to the public interest.
In my view, no error has been shown. The notice to review is dismissed.
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