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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] ACTSC 125
Decision Date

CaseChat Overview and Summary

Matthew Hammond has appealed against a decision made by the Magistrates Court regarding his application for a special licence following a high-range drink driving offence. The application was rejected by the Magistrate, who also imposed a 2-year licence suspension and ordered community service. The appeal concerns only the denial of the special licence application. The appeal was heard by Justice Connolly, who dismissed the appeal on the basis that the Magistrate had exercised his discretion appropriately in accordance with the legislation.

The central legal issue before the court was whether the appellant's history of drink driving offences, coupled with his status as a professional bus driver, constituted exceptional circumstances justifying the grant of a special licence. The court emphasised that the grant of a special licence is contingent upon the demonstration of exceptional circumstances, and that the primary concern of the legislation is public safety. The appellant's record of five drink driving offences over a span of nearly 30 years, including four high-range offences over 22 years, was deemed significant. The court held that the appellant's employment as a professional driver, while it may be at risk due to the suspension of his licence, did not outweigh the importance of public safety. The court concluded that the appellant's extensive history of drink driving offences, particularly the high-range readings, did not justify the grant of a special licence.

Justice Connolly concluded that the Magistrate was correct in rejecting the appellant's application for a special licence. The court supported the Magistrate's view that it would shock the public conscience to allow someone with such a driving record to continue driving a public bus. The court's decision was based on the principle that public safety is paramount and that a person with a significant history of high-range drink driving offences could not justify the issuing of a special licence. Therefore, the appeal was dismissed.

Orders