Driver v Darling

[1991] TASSC 56

Serial No 31/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Driver v Darling [1991] TASSC 56; A31/1991

PARTIES:  DRIVER
  v
  DARLING

FILE NO/S:  LCA 22/1991
DELIVERED ON:  13 May 1991
JUDGMENT OF:  Underwood J

Judgment Number:  A31/1991
Number of paragraphs:  11

Serial No 31/1991
List "A"
File No LCA 22/1991

DRIVER v DARLING

REASONS FOR JUDGMENT  UNDERWOOD J

13 May 1991

1. The respondent to this motion was convicted in a Court of Petty Sessions of a breach of the Road Safety (Alcohol & Drugs) Act 1970, s6(1). The circumstances surrounding the commission of the offence are unremarkable. After drinking at a hotel in Oatlands between about 6.30pm and midnight during the evening of Friday 27 October 1990, the respondent left to drive to his home at Parattah. He "cut the corner" while making a right hand turn from High Street into Church Street and thereby attracted the attention of the patrolling police. A subsequent breath analysis reported .222 grams of alcohol per 100 millilitres of blood. The learned magistrate was told that the respondent's driving constituted no actual danger to other users of the road. A fine of $300 and a period of 18 months' disqualification was ordered.

1. Following the imposition of penalty, the learned magistrate heard an application under the Traffic Act 1925, s36(1) for an order authorising the issue of a restricted licence. On this hearing or during the immediately preceding plea in mitigation, the learned magistrate was told that the respondent was a single man, aged 32, who lived at Parattah with his mother. He was, and all his adult life had been, employed as a wool presser and farm hand. His employment was regular but of a casual nature. During the preceding year he earned $12,000 working at various farms in the midlands and east coast areas of Tasmania. His only means of transport to and from his various places of employment was his motor vehicle. Evidence was presented in the form of a pathologist's report and medical certificate tending to establish that he was not alcohol dependent.

1. The respondent had a prior conviction. On 27 January 1988 he was convicted of an offence of driving with alcohol in his blood in excess of the prescribed maximum, namely .23%. At that time he was fined and disqualified from holding or obtaining a driver's licence for 16 months. At the same time he was granted a restricted licence to enable him to pursue his occupation. It can be seen that, 17 months after his first period of disqualification ended, the respondent committed a second offence against the Road Safety (Alcohol and Drugs) Act, s6(1). The reading on both occasions was in excess of four times the prescribed minimum. The circumstances surrounding the earlier offence were similar to those surrounding the present offence. The respondent said in evidence that it was his custom, a few nights a week, to drink at the Kentish Hotel Oatlands. He said that after the first conviction he would drive his car to the hotel, but if he felt that he had drunk too much, he would telephone his mother to come and take him home or get someone else to drive him home. He said that he did not do this on the night in question because he "wasn't thinking straight".

1. In a reserved decision the learned magistrate said that he was satisfied that it would not be against the public interest to grant a restricted licence and made an order authorising the grant of a licence that would permit the respondent to drive to and from his various places of employment.

1. The applicant seeks a review of this order upon the grounds that error occurred in the finding that the making of the order would not be contrary to the public interest.

1. The finding under attack was the result of an exercise of judicial discretion. I venture to repeat what I said in Registrar of Motor Vehicles v Fleming 44/89 at p5:

"The making of an order authorising the grant of a restricted licence involves the exercise of a judicial discretion. See Manning v Foster [1971] Tas SR (NC) 19, Burbury CJ 87/71; Strickland v Parsons, Everett J 57/81; Registrar of Motor Vehicles v Eeles [1984] Tas R 24. The exercise of the discretion is fettered by the provisions of the Traffic Act, s36(4) and additionally, in cases where the application arises as a consequence of a conviction for a breach of the Road Safety (Alcohol & Drugs) Act 1970, by the provisions of s19 of that Act."

See also In the Matter of P G O'Connell, Crawford J B1891.

1. In Lowe v Mansfield 65/88 I had occasion to consider the meaning of public interest as enacted in the Traffic Act, s36(4)(c). After referring to Hayes v Peterson [1972] Tas SR 86 and Webb v Robertson, Chambers J 13/74, I said at pp7, 8:

"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.

2Relevant matters for consideration under 1 include –

(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.

3Relevant matters for consideration under 2 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."

1. The following passage in the judgment of the Chief Justice in In The Matter of S W Stockman 17/78 has often been cited with approval:

"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 the 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."

1. In Lowe v Narracott, Cosgrove J B54/87, his Honour held that upon a consideration of the public interest "it would be appropriate to consider ... the question whether the repeated grant of a restricted licence by way of a mitigation of the hardship inherent in the penalty imposed, might well have the effect of encouraging in the offender the notion that the courts were loath to impose a full and proper punishment" (p3). The learned magistrate referred to this decision and Dutch v Lowe, Brettingham–Moore J 23/84 and observed that "all the other cases I've read on the question of public interest [have] involved a greater number of previous convictions, or more than a first application for a restricted licence". With respect to those two cases the learned magistrate's observation was correct. However, they are authority for the proposition that the issue before the learned magistrate was whether on the facts he found, he was satisfied that the making of the order would not be contrary to the public interest. Those facts required that special attention be given to the effect the making of the order would have on the particular and general deterrent effect created by the penalty of licence disqualification and the other matters referred to in the passage from Lowe v Mansfield cited above.

1. In my view, in reaching the conclusion that it would not be contrary to the public interest to make the order sought, the learned magistrate fell into error. The circumstances surrounding the commission of the two offences were very similar. In the knowledge that only 17 months had elapsed since the expiry of the first period of disqualification, during which time the respondent had held a restricted licence, he again simply drank too much alcohol and chose to drive himself. Maintenance of the general deterrent effect of licence disqualification is plainly a primary intention of Parliament. In the absence of special circumstances, it would be contrary to the public interest not to give that intention full force and effect. The public interest will be defeated if the hardship of licence disqualification is too readily mitigated by the making of an order authorising the grant of a restricted licence which has the effect of restoring the licence except for use on social occasions. Having been afforded the privilege of a restricted licence, the respondent continued to pursue his custom of driving his car to a hotel, drinking and thereafter making a decision whether or not he could lawfully drive himself home. There was nothing in the material before the learned magistrate to suggest that, if the order were made, the respondent would alter his customary behaviour in the future to avoid the risk of driving on a public street whilst his blood alcohol content exceeded the prescribed maximum.

1. In these circumstances the grant of a second restricted licence so soon after the expiry of the first would clearly encourage, and be seen to be encouraging, the notion that the courts were reluctant to let the deterrent effect of licence disqualification operate to its full effect. An order authorising the grant of such a licence would substantially weaken the deterrent effect intended by Parliament. In the circumstances the learned magistrate could not reasonably have been satisfied that the exercise of the power to grant a restricted licence would not be contrary to the public interest. The motion to review is allowed. The order authorising the grant of a restricted licence is quashed.