Hammond v Road Transport Authority
[2006] ACTSC 125
MATTHEW HAMMOND v ROAD TRANSPORT AUTHORITY & ANOR
[2006] ACTSC 125 (8 December 2006)
APPEAL FROM MAGISTRATES COURT - Drink driving – application for special licence – high range offence – five prior offences – bus driver – no justification for special licence.
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT
No SCA 55 of 2006
Judge: Connolly J
Supreme Court of the ACT
Date: 8 December 2006
IN THE SUPREME COURT OF THE )
) No. SCA 55 of 2006
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN:MATTHEW HAMMOND
Appellant
AND:ROAD TRANSPORT AUTHORITY
First Respondent
AUSTRALIAN FEDERAL POLICE
Second Respondent
ORDER
Judge: Connolly J
Date: 8 December 2006
Place: Canberra
THE COURT ORDERS THAT:
the appeal be dismissed.
This is an application by way of appeal from a decision of Magistrate Burns who, on 10 October 2006, sentenced the appellant in relation to a high range drink driving offence. At the time of the sentencing he was also confronted with an application for a special licence which he rejected.
The appeal to this Court is not in relation to the sentence and disposition of the offence, and I would say as well it ought not to have been, the disposition in relation to the drink drive offence which was a 0.235 blood alcohol reading was in the nature of community service and a 2 year licence suspension.
I have just been doing the bail list and have seen a Queanbeyan, New South Wales, second offender high range PCA who had a suspended gaol sentence in relation to his second drink drive offence, albeit his first high range drink drive offence. The sentencing disposition by the Magistrate is not appealed, nor should it be, it was entirely within range.
In relation to the application for the special licence, the Magistrate paid significant regard to the appellant’s prior record of offending. It seems to me that he was entirely right in doing so. The structure of the legislation relating to drink driving reflects the increasing legislative concern in relation to the risks of such conduct. It is obvious to say that anyone driving on a public road with a blood alcohol reading of 0.235 is fortunate indeed to be sentenced by a court rather than being dead having driven the car into another car, or killed somebody else. 0.235 driving is extremely dangerous behaviour which kills and maims drivers and innocent members of the community.
There is in the ACT a provision that a person who has otherwise suffered the penalty of having their licence being cancelled or suspended may make an application for a restricted licence. There was a time when this was a common feature of road traffic legislation around the country, but as counsel reminded me this morning, it is now the situation that it is only in the Australian Capital Territory and Tasmania that such a provision remains. It is clear from reg 47 of the Road Transport Driver Licensing Regulations 2000 that this is a special privilege that can only be invoked if the person seeking the privilege establishes exceptional circumstances justifying the issue of the licence.
It seems to me that it is appropriate to emphasise that it needs to be exceptional circumstances justifying the issue of the licence, not just that one meets criteria, but that those criteria justify the issuing of the licence.
The appellant comes before the Court with a record now of five offences over nearly 30 years, but more significantly four offences over 22 years, one of which was in the range of 0.240 to 0.250, that is one other very high range alcohol offence.
It is the case that he is an ACTION bus driver, a professional driver, and has been for some 20 odd years. It would seem from taking that evidence into account and the prior record that in relation to both the 1984 and 1989 matters the appellant must have continued his employment with ACTION buses, though having his driver’s licence suspended or cancelled.
In relation to the 2000 offence it was a 0.075 reading, which is the first level between 0.05 and 0.08 level, so it was a lower level blood alcohol reading. On that occasion, a restricted licence was granted to enable him to continue with his employment and with a special condition that he was not to consume alcohol within six hours of driving.
The Magistrate expressed some surprise that the appellant was still driving a bus, but more significantly he expressed the view in his remarks that, “It would shock the public conscience if courts were to grant restricted licences for people to drive public buses on their fifth drink driving offence with a reading of 0.24”. The reading was in fact 0.235, but the point remains.
It seems to me that that statement was entirely justifiable. The public would be deeply concerned if a person was driving a bus with this record. One need hardly say it, but if there were two ACTION buses at a bus stop and one had a big sign up saying this driver is on his fifth DUI and most recently was done for 0.235, you would have one full bus and one empty bus because nobody would get on such a bus, nobody would let their children get on such a bus.
A professional driver knows that their livelihood may be at risk if they go onto the roads with alcohol exceeding the legal limit. The factors that can be taken into account in deciding whether a person can establish that there are exceptional circumstances may, and clearly will, include whether a person’s livelihood is at risk and I will accept that the evidence here establishes that there is a risk to the appellant’s employment.
I would say however that even if the evidence went further and said that he will lose his employment with ACTION buses as a consequence of this, that would not of itself justify the granting of a special licence because the criteria in relation to a history of offending must, it seems to me, given that the whole purpose of this legislative scheme is to ensure public safety, loom large in any decision.
Five offences, two of them high range offences and the most recent being a high range offence, it seems to me, makes it clear that a person in such circumstances cannot justify the issuing of a licence because public safety is a primary concern.
A professional driver is in a position where their primary licence, which is in all cases a privilege, ensures their ability to engage in that form of employment and for such a person to continue to offend against the drink driving laws with some expectation that they will be able to say, “Because I’m a bus driver I’m entitled to a special licence,” is a significant misunderstanding.
The Magistrate, it seems to me, exercised his discretion entirely in accordance with the legislation. His remarks to the extent that they may have been seen to be robust in saying that the public would be deeply concerned if a licence was issued to enable a person with this driving record to drive a public bus were, it seems to me, entirely appropriate.
The appeal is dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 8 December 2006
Counsel for the Appellant: Mr J Sabharwal
Solicitor for the Appellant: Rachel Bird & Co
Counsel for the First and Second Respondents: Mr K Archer
Solicitor for the First and Second Respondents: ACT Government Solicitor
Date of hearing: 8 December 2006
Date of judgment: 8 December 2006
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