Dunford v Crawford

[1990] TASSC 109

Serial No B31/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Dunford v Crawford [1990] TASSC 109; B31/1990

PARTIES:  DUNFORD
  v
  CRAWFORD

FILE NO/S:  LCA 10/1990
DELIVERED ON:  29 June 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B32/1990
Number of paragraphs:  8

Serial No B32/1990
List "B"
File No LCA 10/1990

DUNFORD v CRAWFORD

REASONS FOR JUDGMENT  CRAWFORD J

29 June 1990

1. This is a motion to review a sentence imposed in a Court of Petty Sessions. The applicant pleaded guilty to a charge of driving a motor vehicle while alcohol was present in his blood in a concentration greater than .05 of a gram per 100 millilitres of blood, namely .17 of a gram, contrary to s6(1) of the Road Safety (Alcohol and Drugs) Act 1970. The learned magistrate imposed a fine of $300, ordered payment of $17 costs and disqualified the applicant from holding or obtaining a driver's licence for a period of 8 months. The motion only relates to the period of disqualification. It commenced on 4 May 1990 and one month later, on 4 June 1990, it was ordered that the order for disqualification be stayed until the determination of this motion.

1. The applicant was aged 19 years. Over the previous 2½ years, he had committed a number of traffic offences which were not serious, with one exception. On 18 December 1987 he appeared in the Court of Petty Sessions charged under s.6(2) of the same Act with being a first year driver and having alcohol in his body. On that occasion he was fined and disqualified for holding or obtaining a driver's licence for 9 months.

1. The circumstances in which the present offence were committed plainly show that this was not a serious breach of the Act. At about 8.15 p.m. on Sunday 5 November 1989 at a camping reserve at St. Helens Point, the applicant was with some friends at a camping site. From a parked position he moved a car a distance of no more than 15 metres, by reversing it across a gravel road and then driving it forwards across the road, to put it in a more convenient position for the purpose of doing work on its muffler. Coincidentally, the police came upon the scene at that moment, and the charge resulted.

1. Before the magistrate, the applicant's counsel explained that his client was in employment but at the time was on a camping holiday and the muffler had broken off. The applicant did not believe that what he was doing was wrong.

1. When sentencing, the learned magistrate said that he took into account what had been said by counsel, and although the blood alcohol reading was very high the applicant was only moving the vehicle a matter of metres. His Worship said that he could impose a penalty that could "reflect those factors but at the same time impose a penalty on you which also takes into account the public need to deter you and others from drink driving in any circumstances. So what I propose to do is fine you $300 and disqualify you from holding or obtaining a driver's licence for a period of eight months".

1. Grounds 2 and 3 in the application allege specific errors by the learned magistrate but they are not apparent from what he said. Ground 1 is that the disqualification of eight months was manifestly excessive in all the circumstances and I am satisfied that this ground has been made out. The facts were undisputed that the applicant only drove about 15 metres and then only in a backwards and forwards movement to re–position the vehicle for the purpose of working on it. The movements were across a roadway in a camping area at 8.15 p.m. on a Sunday, at a time which was not during school holidays. Even if the applicant knew what he was doing was wrong, it is my view that his culpability was very low in the circumstances. There was nothing to suggest that there was any chance of danger to the property or persons of others even if he was affected by the alcohol he had consumed. Additional to these aspects the learned magistrate apparently accepted the applicant's counsel when he said that his client did not realize what he was doing was wrong. Accordingly, the applicant's culpability was very low indeed.

1. A short period of disqualification of two months was justified. He ought to have realized that the provisions of the Act applied to the place where he was driving. He and others should be made aware that the law prohibits driving in places open to or used by the public with more than the prescribed quantity of alcohol in the blood, and must be obeyed.

1. That part of the order which imposed the disqualification will be set aside and in its place it will be ordered that the applicant be disqualified for holding or obtaining a driver's licence for one month from today. As he has already been subject to a period of one month's disqualification under the magistrate's order, the result will be a total of two months of disqualification because of his offence.