Driver v Pennicott
[1991] TASSC 51
•12 April 1991
Serial No 24/1991
COURT: SUPREME COURT OF TASMANIA
CITATION: Driver v Pennicott [1991] TASSC 51; A24/1991
PARTIES: DRIVER
v
PENNICOTT
FILE NO/S: LCA 12/1991
DELIVERED ON: 12 April 1991
JUDGMENT OF: Cox J
Judgment Number: A24/1991
Number of paragraphs: 12
Serial No 24/1991
List "A"
File No LCA 12/1991
DRIVER v PENNICOTT
REASONS FOR JUDGMENT COX J
12 April 1991
On 29 January 1991 the respondent to this Notice to Review pleaded guilty in the Court of Petty Sessions at Hobart to a charge of driving a motor vehicle on 7 July 1990 whilst alcohol was present in his blood in a concentration greater than the prescribed concentration of 0.05 of a gram of alcohol in 100 millilitres of blood, namely 0.188 grams of alcohol in 100 millilitres of blood contrary to s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"). He was convicted and fined $250.00, ordered to pay $43.00 in court costs and a probation order was made requiring him to be of good behaviour for a period of nine months from the day of conviction and in that time not to drive, save as permitted by the Registrar of Motor Vehicles in a letter to the respondent dated 22 August 1990. The complainant appeals on the following grounds:
1The learned magistrate erred in fact and in law in that in all the circumstances of the case the sentence imposed was manifestly inadequate.
2The learned magistrate erred in fact and/or in law in the exercise of his sentencing discretion in equating the conditions set on the licence to drive issued to the respondent by the Registrar of Motor Vehicles with an order made under s36 of the Traffic Act 1925 authorising the granting to the respondent of a restricted licence.
3The learned magistrate erred in fact and/or in law in the exercise of his sentencing discretion in ruling that he was impeded by the conditions set on the licence to drive issued to the respondent by the Registrar of Motor Vehicles.
4The learned magistrate erred in fact and/or in law in failing to disqualify the respondent from obtaining or holding a driver's licence.
The respondent was stopped in unexceptionable circumstances at about 4.45pm on a Saturday afternoon in Albert Road, Moonah and subjected to a random breath test. He was required to undergo a breath analysis and returned the reading of .188%. At the time he said he had consumed five 8oz beers at Cooley's Hotel in Moonah and had been driving home when intercepted. He had two similar previous convictions: one on 26 January 1984 when the reading had been .13%, he had been fined $150.00 and disqualified for nine months; and the second on 24 April 1989 when the reading had been .103% and he had been fined $75.00 and disqualified for twelve months.
In mitigation, his counsel told the learned magistrate that the respondent was 27 years of age and was employed as a panel beater working for the Metropolitan Transport Trust at Mornington. He had been working in the morning and had spent about 1½ hours in the afternoon drinking at the hotel. To account for the reading attained, counsel submitted that either his client has miscalculated the amount of alcohol he had consumed or had some residual alcohol in his system from celebrations of the previous night prompted by his discovery that his wife was pregnant with their fourth child. He was a good tradesman and had been in regular employment since leaving school. It was submitted that any disqualification would cause him "some significant hardship" as he would have to get to Mornington from his home at Moonah at hours when public transport was not available and that he would incur added expenditure to get to and from his place of work. No other details of hardship were given.
Counsel then advised the learned magistrate that within two days of his apprehension the respondent had been advised by the Registrar of Motor Vehicles that his licence had been cancelled. It seems that the Registrar adopted the procedure I held to be unlawful in the case of The Queen v Counsell Ex parte Hall Unreported Serial No 33/1990 ([1990] Tas R 39) delivered on 10 August 1990. The respondent exercised his right to appeal against the Registrar's decision but before the appeal was heard the manager of the Motor Registry, by letter dated 22 August 1990, advised that the Registrar had decided "not to proceed with the cancellation at this time." He had, however, decided to place the following restrictions on the respondent's licence:
1 Not to drive with any alcohol in his body.
2 To drive only to and from work and in the course of his employment.
3 To carry his licence with him at all times.
It would appear that the Registrar purported to exercise a power to impose conditions effecting what amounted to a partial cancellation of the respondent's licence to drive pursuant to reg33(6) of the Traffic (Miscellaneous) Regulations 1968. Apparently the appeal then lapsed. Counsel submitted that the respondent had accordingly suffered the loss of the social use of his licence to drive a motor vehicle for the previous six months and that this ought to be taken into account. Counsel for the appellant does not dispute the propriety of taking this into account as a factor in sentencing.
There then followed some discussions as to whether the learned magistrate could order a disqualification from driving other than in accordance with the Registrar's letter, the learned magistrate suggesting that such a course might be thought to have some merit "in that it restricts the effects of disqualification and short cuts what might be thought to be a fairly inevitable result if an application is made". Finally the learned magistrate addressed the respondent thus:
"Mr Pennicott, if I were unimpeded by what the Registrar has done, I would have thought that your act of driving with this level of blood alcohol in your body, in the light of the fact that it was the third at least occasion upon which you've driven whilst carrying an unlawful amount of alcohol, a period of disqualification for, say, fifteen months would have been merited and that's what I would have required of you, but the Registrar's contribution to your circumstances regarding your licence has in a similar way operated to disqualify you from personal or family or social use of your licence already now for a period of some almost six months, and that's a matter properly to be taken into account in order to mitigate the proper punishment for you today. As Mr Chopping said in reply to my question, I've heard my brother Magistrate has proceeded in the way that Mr Chopping indicated. As far as I'm aware no–one has made complaint of his doing so and I will accept, therefore, that that's a proper basis upon which to proceed in handing out proper punishment to offenders such as yourself. So, instead of awarding you a direct disqualification, I'll make a probation order requiring you to be of good behaviour for a period of nine months from today and in that time not drive other than as permitted by the Registrar in his letter to you of the 22nd of August 1990. In addition to that, which is really a disqualification by another name, that's at least what has motivated it, I'll require you to pay a fine. As I said a moment ago, this is your third offence. Somehow, in some fashion, you've got to be taught in the interests of yourself and your family and in the interests of the community that repeated offences bring greater penalties. So, on this occasion, I will require you to pay a fine of $250."
In my view, this appeal must be upheld. This was the respondent's third such conviction. He had already been disqualified twice and the third offence occurred less than three months after the last period of twelve months' disqualification had expired. The reading was a high one, and although there was no direct evidence of any actual impairment of his driving ability, the whole purpose of the Act, as its preamble indicates, is to protect the public against persons who drive after consuming intoxicating liquor and to restrict the right of such persons to hold drivers' licences. A reading nearly four times the prescribed concentration is one which might reasonably be thought to expose the public to a danger from which it should be protected. It was clearly a case for a substantial disqualification in addition to a penalty by way of fine or even imprisonment (although the appellant does not urge the latter course). This, the learned magistrate acknowledged when he said he considered a disqualification of, say, fifteen months would have been merited if he were not impeded by what the Registrar had done.
Clearly enough the learned magistrate was not impeded in law by what the Registrar had done. He had his own discretion to exercise and it was, as I have said, appropriate to have taken into account as a factor affecting penalty, the effect the Registrar's action (whether lawful or otherwise, as to which I express no opinion) had had upon the respondent. Nevertheless, it was not suggested that this had amounted to any more than inconvenience in possibly curtailing some of the respondent's personal, family or social activities. His ability to work had not been affected.
It would seem from the learned magistrate's comments that he considered the grant of a restricted licence was appropriate and that had application been made for one, it would inevitably have been granted. If that was his view, it is, with respect, clearly without proper foundation. There was no formal evidence of hardship at all and the prosecutor had no opportunity to test any assertion that the respondent would suffer severe and unusual hardship, if such had been made, nor to test whether or not the grant of such a licence was contrary to the public interest. Even taking the submission of counsel at face value, there was no definition of the parameters of the hardship anticipated. More significantly, however, the provisions of s19 of the Act would have precluded a court from granting the respondent a restricted licence by virtue of the previous conviction within three years immediately preceding the present conviction.
I adhere to what I said in Davies v Hewitt Unreported No 53/1990 that I do not accept that the only proper vehicle through which the court should take cognisance of hardship is an application for a restricted licence or that the court should ignore hardship which is not of the kind contemplated by the provisions relating to such orders, but in the circumstances of this case there was no proper foundation for an individualised approach which had the effect of putting to nought the clear intention of Parliament as expressed in s19 of the Act.
As the sentencing discretion miscarried, it falls to me to impose sentence. So far as disqualification is concerned, I take into account the fact that the respondent was, in effect, for six weeks prior to 22 August 1990, deprived of the right to drive a vehicle at all and that since that date he has not had the right to drive otherwise than in circumstances enabling him to attend his place of employment. I am in no way constrained by the tentative view of the learned magistrate that fifteen months' disqualification would have been an appropriate period but for the facts I have mentioned. In my view, a period of fifteen months' disqualification to operate from the day of this order is appropriate.
The appeal is upheld and the sentence imposed on 29 January 1991 is set aside. In lieu thereof it is ordered that the respondent be fined $250.00 and pay costs in the Lower Court of $43.00. Subject to any further submissions, he will have three months to pay, in default twelve days' imprisonment. Furthermore, I order that he be disqualified for holding or obtaining a licence to drive a motor vehicle for fifteen months from to–day's date.
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