Director of Public Prosecutions v Burton

[2020] TASSC 16

[2020] TASSC 16

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Director of Public Prosecutions v Burton [2020] TASSC 16

PARTIES:  MOORE, Luke (Senior Sergeant)
  v
  BURTON, Stephen Clement

FILE NO:  LCA 3206/2019

DELIVERED ON:  19 May 2020
DELIVERED AT:  Hobart
HEARING DATE:  24 February 2020
JUDGMENT OF:  Geason J

CATCHWORDS:

Magistrates – Appeal and Review – Motion to review – Granting of Restricted Licence – Severe and unusual hardship – Public interest.

Aust Dig Magistrates [1345]

Traffic Law – Licensing of drivers – Tasmania – Generally – Restricted Licence– Severe and unusual hardship – Alternate means of transport available – Evidence did not sustain finding of severe and unusual hardship – Appeal allowed.

Aust Dig Traffic Law [1056]

Traffic Law – Licensing of drivers – Tasmania – Generally – Restricted Licence – Public interest – Protection of other road users – Consideration of mental health – Relevance of prior convictions – Not afforded sufficient weight – Not in public interest to grant the licence – Appeal allowed.

Vehicle and Traffic Act 1999 (Tas), s 18.
Hayes v Peterson (1972) Tas R 86; Lowe v Mansfield [1988] TASSC 66, referred to.
Aust Dig Traffic Law [1056]

REPRESENTATION:

Counsel:
             Appellant:  E Stone
             Respondent:  No appearance
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number:  [2020] TASSC 16
Number of paragraphs:  29

Serial No 16/2020

File No LCA 3206/2019

SENIOR SERGEANT LUKE MOORE v STEPHEN CLEMENT BURTON

REASONS FOR JUDGMENT  GEASON J

19 May 2020

1On 3 December 2019, Magistrate S E Cure authorised the issue of a restricted driver's licence to the respondent, pursuant to s 18 of the Vehicle and Traffic Act 1999 (the Act).

2The application for a restricted licence was opposed by the applicant.

3By a notice to review, the applicant asserts that the magistrate erred in authorising the issue of the restricted licence because:

(a)the learned magistrate erred in fact and/or law in determining that the disqualification was imposing severe and unusual hardship on the respondent; and

(b)erred in fact and/or in law in determining that it was not contrary to the public interest for the restricted licence to be issued.

4The order has been stayed pending determination of this appeal.

5For the reasons which follow, the appeal succeeds.

6The respondent did not appear on the hearing of the appeal.

The facts and the restricted licence

7The respondent pleaded guilty to the following charges on complaint 32273/2019:

1         Evade police contrary to s 11A(1) of the Police Powers (Vehicle and Interception Act) 2000;

2Exceed the speed limit in a built-up area contrary to r 20 and r 25(2) of the Road Rules 2009; and

3Disobey a red traffic light contrary to r 56(1)(a) of the Road Rules 2009.

8The respondent was disqualified from driving for a period of 6 months in respect of the charge of evade police, and disqualified from driving for a period of 4 months in respect of the charge of exceeding the speed limit, to be served concurrently with the disqualification imposed in respect of the charge of evade police.  He was fined $500.

9On 11 November 2019 the respondent applied for a restricted licence.  It was heard on 29 November 2019.  In her ex-tempore reasons, the learned magistrate said that she was willing to grant the respondent a restricted licence subject to conditions, and made a formal order authorising the issue of that licence, which, as noted, was stayed by the Court after hearing submissions, on 3 December 2019.

10The magistrate's reasons for granting the restricted licence application were these:

"HER HONOUR:        I have found this really difficult, Mr Burton.  I have found it a very difficult matter and I have genuine sympathy for your situation but that's not what I am required to do.  You have made an application for a very limited restricted licence.  The restricted licence would be as we have been able to eventually define that you would go to Dt Tredinnick, a very impressive man – a very impressive doctor – who is prepared to come to court for you.

He gave evidence that – effectively he hinted that he had concern for your mother by you being housebound.  He spoke of the severity of your condition and his evidence can be distilled down into this: it was his view that even though it is conceivable, albeit quite difficult, that he could go to you that's not necessarily the answer.  I take from his evidence that the visits to him every second Sunday are an important part of your welfare.

I take from him that maintaining your current state of health is the objective, so he is not talking about you improving greatly or declining greatly.  He is talking about – and I can't remember the phrase because he was talking to me at the time because I interfere so much in these matters to try and get to the nub of what they are about and he spoke of I think the status quo, didn't he?  Was that the word he used, just keeping things even for you.  But his support for you to drive to his visits was unequivocal, I thought.

He wouldn't concede that you were likely to cause a problem.  That's not the end of that issue.  He says in the letter dated 8^th November, 'I support Mr Burton's application for a restricted licence to travel by his car to and from these appointments; that is, one to see me on a fortnightly basis; two, obtain his medications.  Well, I am going to put a line through that because he said they could be delivered; three, to see Tracey Whicky, your psychologist and – well, this would be four but three once I've taken away the medication issue, see your psychiatrist if required, Dr Lev Gridgant.  I think that's the correct pronunciation.

He said, and I accept his evidence without any hesitation, that your mental health is fragile, your anxiety and PTSD are real and your ability to cope with public transport or taxis often negligible and the potential for you to lose it in such circumstances is real.  He refers to you missing therapy and therapeutic treatment and decompensating to the detriment of all concerned.  In his evidence I gather he means your mother – sorry, he does say that.  It includes you, the people who try to help you cope, the community in particular, your supportive mother.  He then concludes that your application is worthy of consideration.

So in terms of the very unusual circumstances of your application, they are unusual because the severe and unusual hardship is not about you losing a job as often these are or being unable to continue to support yourself or some other version of severe and unusual hardship.  It is absolutely specific to you.  It is a set of circumstances where getting yourself out of the house, possibly four times – sorry, two times a fortnight, isn't it – two times a fortnight to get to medical appointments, possibly a fraction more, but in all of the circumstances and in the very specific circumstances of this case I would be satisfied that it could pose severe and unusual hardship."

11The learned magistrate then set out the circumstances of the offending:

"I then turn to the other matters, however and I have to have regard to this.  On 15^th April in the early hours of the morning you were in a very poor state and committed the offences for which you were disqualified.  You approached the police station, you handed over a document clearly showing that you intended to kill yourself and police then swung into gear and you were pursued but as I understand it you were told to stop by police.  Sgt Crack came out of the police station, called to you to be stationary.

As she approached you flicked the headlights, revved the engine and drove along Cimitiere Street at speed with a loss of traction.  At 1.05 you called police and you must have been in in a distressed state to do that.  I am not sure that the circumstances were of you calling police but then you pulled out of the pay phone and that was where police activated lights and sirens and you then led them through various streets and you travelled on the wrong side of the road at 100 kilometres an hour in a 50 zone.

You went through a red light intersection although it does say that you slowed and entered the intersection.  You turned left, disobeying a red traffic light and police continued to pursue you and then they lost you again.  Some 15 or so minutes later you were found at Churchill Park and again police followed you and lost you again.  At 2.03 your car was found unoccupied and that's where you had – you were found.  It sounds as if – sometime after rather you were found.  I'm reading this as I'm – as you can tell.

I remember the circumstances.  Your care was found at 2.03 am.  It was seized and towed away.  Empty blister packets of medication were seen through the window.  They conducted a line search of Heritage Forest and at 4.49 am you were found on a track, barely responsive, barely breathing and in possession of a knife.  You were transported to the LGH and by some miracle you survived.  It sounds to me like that really is the extraordinary part of this is that you survived that.

12The learned magistrate then noted the following in respect of the offending:

"It was very dangerous driving and I'm left with a real difficulty because I think it has properly been put that your driving on that occasion did put the public at risk although there were no objective circumstances or particular cases of risk other than the general risk that your driving posed to the community.  There is nothing in the facts that refers to actual situations that arose than just the general risk which I can't disregard.

I now turn to what you tole me in court.  You told me that you have had a very difficult time with post-traumatic stress disorder to say the least.  I don't diminish the significance of that.  I accept the evidence before me from your doctor, Tredinnick, that you have really – you are really quite severe in terms of the spectrum of mental health disorders.  You gave evidence about driving, about your driving and it keeps you in the here and now.  You also gave evidence about your unsuccessful attempts to interact with the public and there's no reason why I wouldn't accept your evidence.

You were challenged with competent cross-examination but there's no reason why I shouldn't accept your evidence that you are able to concentrate while you drive.  You are able to competently manage your motor vehicle and it's your world for a very short time.  Even though you have been driven here today there is nothing about your evidence that raises concerns with me.  I also accept your evidence that your mother is not in a position to drive you.  It seems to me that whether it be unwillingness, whether your relationship with her has been somewhat harmed or it is purely because she can only drive at very limited times when she is well enough – it's either one or a combination of those factors.

…

I don't think that the financial issue raises its head.  I think that in all the circumstances it's a most unusual application.  I don't accept that you are a vehicle for general deterrence but I do think there is some merit in the argument that was put by Ms Stone that really you don't lose a great deal but I don't think that is a basis for me to refuse the application.  I really have had difficulty with this, Mr Burton.  It is a matter that is contested but I am prepared to grant you a restricted licence merely on the basis that it be to attend medical and psychological or psychiatric appointments.  I will not grant you the right to go to the pharmacy or go shopping – not that you asked for that – and that you will need to keep a log book and you will need to permit authorised persons to check on your appointments or you will have to carry cards or something of that nature as proof of appointments. …I think that the only hardship – severe and unusual hardship – is the medical treatment."

13It can be seen that the learned magistrate was careful to restrict the licence so that its terms permitted driving on a very limited basis.  That was appropriate.  However, what is in issue in this appeal is whether the circumstances satisfy the statutory criteria for a grant of a restricted licence.

14Section 18(5)(a) of the Act permits the grant of a restricted licence only if the disqualification is imposing or will impose severe and unusual hardship on the respondent.

15The meaning of that expression was considered in Strickland v Parsons Serial No 57/1981. At 7, Everett J said:

[7]These conditions constituted the statutory restrictions on the judicial power to grant 'special licences in case of hardship' at the times when the following four Tasmanian Supreme Court decisions were made.  Manning v Foster 87/1971; Hayes v Peterson (1972) Tas SR 86; Webb v Robertson 13/19749; Czyz v Robertson 15/1974."

16The applicant contends that "the learned magistrate erred in fact or in law" in finding that the respondent's circumstances could pose severe and unusual hardship.  It was common ground at the hearing that the respondent's treatment would require him to attend two appointments every fortnight for the period of the disqualification.  This included an appointment with a Dr Tredinnick every fortnight, and an appointment with another doctor, Dr Whicky, approximately every fortnight.

17In cross-examination the respondent said that he had travelled to court with the assistance of his welfare officer. He was asked whether he had made enquiries of the welfare officer as to whether assistance could be provided in getting to these appointments.  He had not.  Upon enquiries being made at the insistence of the magistrate, the welfare officer indicated that it would be difficult, but not impossible to provide that assistance. That evidence resolved matters relating to severe and unusual hardship; there was none.

18If it was considered that there was any uncertainty around that arrangement, the respondent’s financial circumstances meant that he was able to fund alternative means of transport, such as a taxi or bus. The evidence was this:

"Q:      You still receive a salary of $2600 per fortnight?

A:       Something like that, yeah.

Q:       After you pay your expenses you have about $1145 left?

A:It all depends on – I am always being prescribed – you tend to get sick a lot with PTSD because your immune system runs so low so my lips are all cracked and I look terrible and things like that.  Sometimes you go to the pharmacy and you buy three or four hundred dollars worth of medications and the next time you go you're buying $900 worth of medication but you may only take two tablets out of that packet of medication and realise it doesn't work and you throw out $300 worth of medication.  You've got to go buy another packet for 150.

Q:       Right?

A:None of these medications are being paid for by the department at the moment so what I end up having I don't really end up having in the long run anyway.

Q: Right; but there is still some money left over each fortnight once you pay all your expenses including your medication?

A:Yes, and what money is left goes towards – I owe my mother large amounts of money from when my marriage was failing and things like that."

19As to using public transport, the respondent suggested his mental health as prevented him from engaging in social interactions, but as Ms Stone pointed out, the objective evidence was that he could engage in social interactions in other circumstances.  He went to the chemist, supermarket and doctors' surgery regularly.  He attended court and gave his evidence in the presence of others. The respondent's claim as to this, was no more than that, and ought not to have been afforded weight.

20The evidence does not sustain a conclusion that the respondent endures a hardship that is unusual when compared to the hardship imposed on "the average person who is within the class of disqualified drivers in comparable circumstances."

21The learned magistrate erred in concluding that the evidence sustained a finding of severe and unusual hardship. The appeal is allowed.

22I will say something about the issue of public interest. A restricted licence may only be granted if its issue would not be contrary to the public interest: s 18(5)(c) of the Act.

23In Hayes v Peterson [1972] Tas R 86, Neasey J considered the meaning of public interest. His Honour was considering the question in the context of a disqualification for exceeding the prescribed alcohol limit under the Road Safety Alcohol and Drugs Act 1970. The propositions established in that case were these:

1Having regard to the tenor of the Act, primarily, the public interest is in the protection of the public from the danger created by those who drive motor vehicles whilst affected by liquor.

2         Relevant matters for the consideration under the preceding point are these:

(a)       the likelihood of danger to the public if the orders sought were granted;

(b)the effect the making of an order would have upon the particular and general deterrent effect created by the penalty of licence disqualification.

3         Relevant matters for consideration under the preceding paragraph include:

(a)       the nature and extent of the restrictions upon driving sought to be included in the order;

(b)       the likelihood of the applicant driving whilst his judgment is impaired by liquor;

(c)the circumstances surrounding the commission of the offences and the previous convictions, if any, of the offender.

24His Honour's views were adopted in Webb v Robertson 13/1974 unreported, by Chambers J.

25The relevant consideration under this head, was the protection of other road users from the danger of impaired driving having regard to the respondent's mental health as disclosed in the evidence.  The evidence was that the respondent had consumed approximately 900 tablets and two bottles of alcohol when he committed the offending which led to his disqualification. The evidence of Dr Tridinnick was that the respondent's medical condition could be triggered whilst he was driving, and that his capacity "to lose it" was real, causing him to behave in a self-destructive way. That evidence is relevant to the assessment of the likelihood of the danger to the public if the restricted licence is granted.  That evidence is not mentioned by the court. It appears that it has not been considered. If it has and is not mentioned, then it has not been afforded sufficient weight.

26The respondent's prior convictions needed to be considered too: Lowe v Mansfield (1988) 8 MVR 227 at 231. His record was poor, emphasising the need for specific deterrence in fixing a sentence, and the importance of general deterrence. I accept the submission made by the applicant that the grant of a restricted licence diminishes the specific and general deterrent effect created by the penalty of licence disqualification. That is so, even having regard to the limited nature of the permission conferred by that restricted licence.

27Whilst it is acknowledged that the restricted licence was narrow in its terms, the circumstances of the case, and the principles relevant to the question of public interest were not afforded sufficient weight in the determination of the matter.  In my view, it was not open to the court to be satisfied that it was in the public interest to grant the licence.  This ground succeeds.

28For these reasons, the order of the magistrate granting a restricted licence should be set aside.

29I make the following orders:

1The appeal is allowed.

2The order of the magistrate granting a restricted licence to the respondent is set aside.