Hodgetts v Registrar of Motor Vehicles
[2004] TASSC 11
•27 February 2004
[2004] TASSC 11
CITATION: Hodgetts v Registrar of Motor Vehicles [2004] TASSC 11
PARTIES: HODGETTS, Lindon Mark
v
REGISTRAR OF MOTOR VEHICLES
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 39/2003
DELIVERED ON: 27 February 2004
DELIVERED AT: Launceston
HEARING DATE/S: 20 February 2004
JUDGMENT OF: Crawford J
CATCHWORDS:
Traffic Law – Licensing of drivers – Tasmania – Generally – Power of court to grant restricted licence – Whether order not contrary to public interest – Relevance to public interest question of court's power to extend period of disqualification.
Vehicle and Traffic Act 1999 (Tas), s18(5)(c).
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s19(1B).
Hayes v Peterson [1972] Tas SR 86; re Stokman 17/1978; Davies v Deverell (1992) 1 Tas R 214, applied.
Aust Dig Traffic Law [25]
REPRESENTATION:
Counsel:
Applicant: S J N Brown
Respondent: J P Ransom
Solicitors:
Applicant: Simon Brown
Respondent: Director of Public Prosecutions
Judgment ID Number: [2004] TASSC 11
Number of paragraphs: 20
Serial No 11/2004
File No LCA 39/2003
LINDON MARK HODGETTS v REGISTRAR OF MOTOR VEHICLES
REASONS FOR JUDGMENT CRAWFORD J
27 February 2004
The applicant pleaded guilty to driving while alcohol was present in his blood in a concentration greater than the prescribed concentration, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the road safety Act"), s6(1). On 20 November a magistrate sentenced him to a fine of $1,500 and disqualification for 18 months. The operation of the disqualification was postponed for 28 days to enable the making of an application for a restricted driver licence pursuant to the Vehicle and Traffic Act 1999 ("the Act"), s18.
The requirements of s18(5) that had to be met before the learned magistrate could exercise his discretion whether to make an order authorising the issue of a restricted driver licence, were that:
(a)the licence disqualification would impose severe and unusual hardship on the applicant or his dependants; and
(b)a restricted driver licence should be issued to mitigate or alleviate that hardship; and
(c)the issue of the restricted driver licence would not be contrary to the public interest.
On 15 December the application was heard and dismissed. The learned magistrate found that the disqualification would impose severe and unusual hardship on the applicant and his dependants, but determined that he was not satisfied that the issue of a restricted licence would not be contrary to the public interest, having regard to the fact that on each of two earlier occasions when the applicant was disqualified, he had been granted such a licence.
The applicant has moved the Court to review the dismissal of the application upon the following grounds:
1The learned magistrate placed excessive weight on the granting of a restricted licence to the applicant in 1987.
2The learned magistrate failed to place sufficient weight on the difference in the offence committed by the applicant on 23 August 2003 as compared to the offence committed by him on 24 September 1995 and for which he had earlier been granted a restricted licence.
3The learned magistrate erred in law in finding that the court's power under the road safety Act, s19(1B), to increase the period of disqualification if it granted a restricted licence "does not go to the issue of whether or not the public interest aspect of this case will or will not be met."
4The learned magistrate erred in law in finding that it was contrary to the public interest to grant the applicant a restricted licence.
The applicant lived at 14 Saundridge Road, Cressy. The circumstances of the offence were that at around 6.30pm on Saturday, 23 August 2003, he was intercepted by police driving on Saundridge Road. A breath test proved positive and at the police station a breath analysis revealed 0.145 grams of alcohol per 100 millilitres of blood. In his plea in mitigation, counsel for the applicant informed the learned magistrate that the applicant had gone to a hotel approximately a kilometre from his home, drank with friends and stayed longer than he planned. He was in the course of returning home when he was stopped for the purpose of having a random breath test.
It was claimed that severe and unusual hardship would result from the disqualification from driving for 18 months. The applicant was 37 years of age. He had held a driver's licence for 20 years and for the past 19 years his occupation was truck driving. He had no other qualifications for work. The only other employment he had experienced was at a Cressy trout farm when he left school. He had been employed as a log truck driver by K J & S M Williams Pty Ltd of Perth for 2½ years. In the course of his employment he drove in the order of 700 to 800 kilometres each day, often six days each week. He earned approximately $600 net each week. He had a commitment to pay $150 each week in respect of a $25,000 home loan. He provided for his wife and two children aged 15 and two years. A third child, aged 18, was still living at home but was employed. The applicant's wife was unemployed. He would be unable to earn income from his employment without a restricted driver licence.
His prior record was of no significance to the application except for two matters. On 24 April 1987 he was convicted of driving negligently on 13 December 1986, when aged 20. He was fined $200 and disqualified for six months. A restricted driver licence was granted to him to ameliorate the severity of the disqualification. He was employed as a truck driver at the time. More significantly, on 16 October 1995 he was convicted of driving on 24 September 1995, when aged 29, while alcohol was present in his blood in a concentration (.106) greater than the prescribed concentration (.05). He was fined $500 and disqualified for six months. Once again a restricted driver licence was granted to him. He was a truck driver at the time. Therefore, in the period of 20 years during which he had held a driver's licence, he had twice previously been disqualified for offences and on both occasions had been granted a restricted driver licence to allow him to continue working as a truck driver.
The applicant explained the circumstances of the two earlier offences. He said that the 1986 offence involved speeding through an intersection when driving a mate's car. He said that the 1995 offence occurred when he was drinking at a Deloraine hotel with the intention of staying the night. He went to move a motor cycle from the back of the hotel car park to the back of the hotel when he was apprehended. It therefore appeared that the two previous offences for which he had been disqualified, were not committed by him in the course of carrying on his occupation.
The order sought was one that would permit a driver licence authorising him to drive to and in the course of his employment by K J & S M Williams Pty Ltd between 3am and 5pm between Monday and Friday of each week. His evidence was that even with a licence in those terms he would miss out on a fair amount of Saturday overtime work, perhaps on half of the Saturdays. It was a practice of his employment that he kept his employer's truck at home. His work commonly involved driving 740 kilometres a day, in which he would proceed to Bronte Park in the Central Highlands, pick up a load of logs, drive to Longreach on the Tamar River to unload and then repeat the trip before returning home for the night. It was suggested to the learned magistrate that the restricted licence should permit him to drive at all points east and north of Bronte Park, which would allow him to deliver mill logs as far west as Deloraine. His employer had no other work for him if he did not have a licence, but had said that he would be re-employed at the expiration of the 18 month disqualification period if his application for a restricted licence order was unsuccessful.
In the course of submissions, counsel for the applicant drew to the attention of the learned magistrate the little used provisions of the road safety Act, s19(1B):
"If an order is made under section 18 of the Vehicle and Traffic Act1999 in respect of a conviction for an offence under this Act, the Court may increase the period of disqualification from driving remaining at the time the order is made by an amount not exceeding the period so remaining."
Counsel raised the possibility of the learned magistrate making a restricted licence order and using that provision by extending the period of disqualification so as to make it "a clear further deterrent to him" and "a general deterrent to others" in the public interest.
The reasons of the learned magistrate for refusing the application were as follows:
"The applicant is a 37 year old professional truck driver, whose been engaged in that activity – well that profession of a truck driver, since he was about 18. So close on 20 years. That's his sole source of income and his family is wholly reliant upon his income. I think it is acknowledged in fact that he has made out a case for severe and unusual hardship. That doesn't seem to be the issue. And indeed I am satisfied that his case in regard to that aspect is made out.
The problems he faces are these. On two previous occasions he has been disqualified and granted a restricted licence to alleviate the – or mitigate the severity of the effects of that disqualification. In April 1987 he was convicted of a charge of negligent driving and it was sufficiently serious to call for a disqualification of six months I note which as I say a restricted licence was then granted. He was then a truck driver and it enabled him to continue his occupation as a truck driver. He was then aged 21 and his counsel puts that activity of negligent driving down to youthful stupidity, which is possibly true.
In relation to the other matter he was convicted of a similar offence of exceed 05 with a reading double the limit of .106 in October 1995, some eight years ago. And again the impact of that disqualification was alleviated by the grant of a restricted licence. He says that that offence was committed when he moved his motor bike from one part of a car park behind a hotel at Deloraine to another part presumably for safety sake and was detected by police.
Here the facts are somewhat more culpable I would have thought, and I don't think his counsel argues with it, on the basis that he was simply drinking here at the local hotel at Cressy. He'd taken his car to the hotel. It was about a kilometre distance from his home and after some drinks he drove home from what he says he knew he would be running a risk with the legislation in driving because what he did say, I am just trying to find it, was "I did not really feel effected with a reading of .145 but I knew I'd had a few beers". Well he's not there saying that he did not hold a belief or a conviction that he would be below the reading of the limit of .05. So he knew he was running a risk in driving and indeed his reading was one of .145. Almost at a level where he would have been debarred from making this application. But the point is he is not debarred by the law from making this application. The issue here is whether it would not be contrary to the public interest to grant a person in his position a restricted licence. The fact that the legislation under the Road Safety Act, under s19(1)B makes provision for an extension of the period of disqualification to my mind does not go to the issue of whether or not the public interest aspect of the case will or will not be met.
That previous conviction was something of the order, was eight years ago. I accept what counsel says namely that the driving was done in a different context to the driving that was done here today, in that that driving was upon a hotel car park only and for the purpose of only moving a vehicle for a limited distance without undertaking a journey, so to speak upon a lengthy roadway.
Here the driving is more culpable. After all he could have walked home, a distance of a kilometre. He knew he was running a risk in driving. He is a professional driver. He's been so for 20-odd years. His family are dependent upon his income. And one would have thought at age 37 he would exercise a better and more mature judgment.
I cannot say that the public interest would be met were a restricted licence to be granted. The application is refused."
I will deal first with ground 3, which raises the question whether the learned magistrate erred in law when he determined that the power given to the court by the road safety Act, s19(1B), to extend the period of disqualification "does not go to the issue of whether or not the public interest aspect of the case will or will not be met". Counsel for the respondent submitted that a literal reading of s19(1B) shows that the legislative intention was that there must first be made an order under the Act, s18, that authorises the issue of a restricted driver licence, before the court may give consideration to increasing the period of disqualification. Although there is some superficial attractiveness in that submission, nevertheless I have determined that it must fail. Section 19(1B) does not in its terms require such a disciplined two-stage process of consideration. In my view, it means no more than it expresses, and that is that if a court exercises its power to make an order authorising the issue of a restricted driver licence it may also exercise a power to make an order increasing the period of disqualification. Obviously, on the hearing of an application for the first order, the second order cannot be made unless the application is successful and the first order is first made.
When determining for the purposes of the Act, s18(5), whether "the issue of the restricted driver licence would not be contrary to the public interest", the court does not make the decision in a vacuum. Commonly it will consider many facts and matters. Some of them are referred to in Hayes v Peterson [1972] Tas SR 86 at 89, re Stokman 17/1978 at 4 – 5 and Davies v Deverell (1992) 1 Tas R 214 at 225 – 226. One of the commonly noted matters that may be relevant is the need for orders of disqualification not to be "perceived as often having little punitive effect because of the ease with which hardship licences may be obtained. In appropriate cases the public interest will require that the general and specific deterrent effect of an order of disqualification not be reduced by the granting of a restricted licence." Davies v Deverell at 226.
In some cases, the question of the reduction of the deterrent effect of the disqualification may be answered at least partly by a consideration of the length of the period of disqualification and in particular, the terms of the restricted driver licence that might be authorised by the order that is sought. Thus, the deterrent aspect of the disqualification might not be materially reduced if all that is being sought is a licence that authorises the applicant to drive on one particular journey on one occasion or rarely. Similarly, it might be that a country person, living up a remote gravel road, might be able to persuade a court that he or she be permitted to drive only to the junction of that road and the nearest main road to pick up mail and provisions, or to drive to the nearest small town once a week to pick up necessary provisions. On the other hand, the prospect of making an order authorising the grant of a licence permitting an applicant to drive every day of the week and almost every hour of the day to enable him or her to keep employment, might be regarded by a court in the circumstances of a case, as contrary to the public interest because its effect would be to substantially reduce the deterrent effect of the penalty of disqualification.
The power given by the road safety Act, s19(1B), to extend the period of disqualification in the event that a restricted licence order is made, was plainly intended so as to assist, where necessary, the alleviation of severe and undue hardship without an undue or inappropriate reduction in the deterrent aspect of the disqualification. By extending the period of disqualification the public interest concerns may be ameliorated in some cases.
It is therefore my view, with respect to the learned magistrate, that his Worship erred when he held that the possible exercise of the power given by s19(1B) is irrelevant to the question whether the issue of a restricted driver licence would not be contrary to the public interest.
It was submitted by counsel for the Crown that in the event that I upheld ground 3, I should nevertheless refuse to allow the motion to review because no substantial miscarriage occurred as a result of the error. See the Justices Act 1959, s110(2)(ab). However, I am unable to conclude that the learned magistrate would necessary have dismissed the application if he had taken into account the power to extend the period of disqualification, perhaps by doubling it, when considering the public interest aspect. I do not know what his Worship would have done. He may well have granted the application.
It is unnecessary to determine the other grounds of the motion to review. The application should be remitted for rehearing by a different magistrate having regard to the success of ground 3.
There will be an order setting aside the dismissal of the application for an order authorising the issue of a restricted driver licence. The application will be remitted for rehearing by a different magistrate.
0
0
2