Huett v Hibble

[2008] TASSC 53

[2008] TASSC 53

CITATION:              Huett v Hibble [2008] TASSC 53

PARTIES:  HUETT, James Alan
  v
  HIBBLE, Kim

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR 639/2008
DELIVERED ON:  29 August 2008
DELIVERED AT:  Hobart
HEARING DATE:  26 August 2008
JUDGMENT OF:  Porter J

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

Traffic Law — Offences — Particular offences — Failure to stop, give information or report to police after accident — Driver ran off roadway causing damage to fence and employer's vehicle — Left scene and failed to report to police — Additional charge of driving without due care and attention — Punitive disqualification — Whether period of disqualification manifestly excessive.

Ochsner v Knowles 13/1975; Sherburd v Jensen 102/1997, referred to.
Aust Dig Traffic Law [110]

REPRESENTATION:

Counsel:
           Appellant:  L J Edwards
           Respondent:  S J Bender
Solicitors:
           Appellant:  Friend & Jones
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 53
Number of paragraphs:  21

Serial No 53/2008
File No LDR 639/2008

JAMES ALAN HUETT v KIM HIBBLE

REASONS FOR JUDGMENT  PORTER J

(DELIVERED ORALLY)  29 August 2008

1. This is a motion to review orders of sentence of a magistrate made on 26 June 2008.  The applicant pleaded guilty to a charge of driving without due care and attention, contrary to the Traffic (Road Rules) Regulations 1999, reg367(1), and to a further charge of failing to comply with the duties of a driver in a crash, contrary to reg287(1) and (3). The applicant was fined $750 and disqualified for a period of four months.

1. The sole ground of appeal contained in the notice to review is that the sentence was manifestly excessive in all the circumstances.  The applicant's argument was directed solely towards the period of disqualification.  The applicant had been charged on the same complaint with a related matter, that of driving a motor vehicle whilst consuming liquor, contrary to the Road Safety (Alcohol & Drugs) Act 1970.  No evidence was offered as to that charge and it was dismissed.

1. The facts as put to the magistrate were that the applicant was driving a vehicle along Mole Creek Road.  He was travelling home by an indirect route at approximately 6.30pm.  He failed to maintain a proper control of the vehicle which ran off the road and down an embankment.  The vehicle subsequently went through a fence and ended up in a large ditch.  The road at that time was relatively straight and in good condition and the surface was dry.  The vehicle sustained extensive damage. 

1. A witness to the accident came and spoke to the applicant and confirmed that he was all right.  He told the applicant that he had contacted the police.  The applicant then said "I wish you hadn't done that."  Whilst the witness was checking the crashed vehicle, the applicant left in another vehicle without making any attempts to report the accident or secure the vehicle.  The crashed vehicle belonged to the Ambulance Patient Transport and expensive emergency equipment was left in it.  Police arrived after the applicant had left and, despite extensive enquiries that night, he could not be found.  The following day he was located in the Launceston General Hospital where he was receiving treatment.  He subsequently participated in a video recorded interview and admitted being the driver of the vehicle at the time that it crashed. 

1. A list of prior convictions was tendered.  The applicant has a number of traffic-related convictions for the period 1985 to 2006.  There are seven minor traffic offences, mostly ones of speeding, with three breathalyser offences in the period March 1989 to August 1993, culminating on the last occasion in a sentence of four weeks' imprisonment which was suspended on conditions, a fine of $1,000 and disqualification for two years. 

1. In a plea in mitigation, the magistrate was told that the applicant was a single man aged 41, he was unemployed, having previously been employed as a patient transport officer with the Launceston General Hospital.  The vehicle was owned by the Hospital.  It was put that he had lost that employment because of the incident.  This was later clarified, in that the loss of employment was particularly attributed to the admission to the applicant's employer that he had consumed alcohol prior to driving the vehicle.  I pause to observe that it was not made entirely clear to the magistrate, but it seems that the applicant was entrusted with the vehicle for the particular night, having regard to the location to which he was required to take a particular patient.

1. Before proceeding to impose the penalty itself, the magistrate said:

"I take all those factors into account.  The record has been referred to and it is not a particularly good record,  I won't go into the detail of that.  He can't account for the accident or how the crash occurred.  You ran off a relatively straight stretch of road which was in good condition and ended up in the ditch.  Why you lost control nobody seems to know.  Then a mate came along and said — a nearby resident came along and said that he'd called the police.  You said 'I wish you hadn't done that', and apparently panicked according to your counsel, recognising the gravity and the like and you thought about the adverse consequences and left the scene.  It is a relatively serious matter, given everything and I note you've lost your job."

1. The maximum penalty for the offence of driving without due care and attention is $1,300, whilst that for an offence under reg287 is $2,400.  The Vehicle and Traffic Act 1999 ("the Act"), s17(1), empowers a court to disqualify a person upon conviction for a traffic offence. A "traffic offence" is defined as an offence against the Act (which term includes, of course, by virtue of the Acts Interpretation Act 1931, s5(2), the regulations) involving the driving or use of a motor vehicle. No point was taken as to this either before the magistrate or this Court, and it seems to me that an offence under reg287 does "involve" the driving of a motor vehicle, in the sense that the obligations under the regulation arise as a consequence of being the driver of a vehicle involved in a crash. I should also note that the Act, s17(2), provides that a disqualification period of four months means that the licence is suspended.

1. Counsel for the applicant relied on the decision of Chambers J in Ochsner v Knowles 13/1975.  In that case, the applicant was disqualified for a period of three months in relation to charges of failing to comply with a give-way sign and driving without due care and attention.  Both charges arose out of the one incident which involved a collision between two vehicles, with the applicant's vehicle then colliding with two stationary vehicles.  Chambers J referred to Price v Fletcher 19/1972 in which Burbury CJ expressed the view that the regulation creating the offence of driving without due care and attention dealt with inadvertent careless driving conduct, and that the regulation creating the offence was aimed at driving conduct falling short of serious and specific breaches of the Highway Code and falling short of dangerous driving.  Chambers J agreed.

1. However, his Honour went on to say:

"The degree of culpability in a case of driving without due care and attention will vary with the circumstances."

1. His Honour held that having regard to the circumstances of the offence and the previous unblemished record of the applicant before him as a driver over a long period, he was persuaded that a total period of 6 months' disqualification, together with a fine, was manifestly excessive and ordered disqualification be set aside.

1. Chambers J also noted that a driver's attitude to his responsibilities as a road user, which may be inferred from a past record, was always relevant, in conjunction with the circumstances of the offence. 

1. Counsel for the applicant in this case also relied on Davies v Hewitt 53/1990, in which case Cox J (as he then was) rejected the submission that the only proper vehicle through which a court could take cognisance of hardship in cases such as this was an application for a restricted licence and that the court should ignore hardship which was not of the kind contemplated by the provisions relating to such applications. 

1. In Sherburd v Jensen 102/1997, Zeeman J dealt with a case not dissimilar to this, in the sense that the applicant had been convicted of the predecessor to the reg287 offence and fined the sum of $200, with disqualification for a period of three months.  The only challenge was to the period of disqualification.  The explanation for the failure to report the relevant details was that the accident had been reported to the applicant's insurer, and the person to whom the applicant spoke told him that there was no need to report the matter to the police, nor to contact the utility whose installation had been damaged in the accident. 

1. His Honour considered that a substantial period of disqualification was not called for "and that it would amount to punishment which was unduly harsh".  Reference was made to the applicant's explanation.  His Honour continued (at 3 – 4):

"Despite the availability of hardship licences, the applicant's reliance on a driver's licence in order to be able to get to his workplace was relevant, although not of great weight (Czyz v Robertson A15/1974). There was no suggestion that disqualification was called for in order to protect members of the public using roads. Although no answer in law, the explanation furnished provided substantial mitigation."

1. On this motion to review, it was argued that the applicant's place of residence, being at Meander, meant that without a licence it was very difficult for him to have the mobility required to pursue alternative employment.  It was also put that the absence of a licence was a disincentive to potential employers.  Before the magistrate, although the loss of employment was specifically pleaded, the particular difficulties which the applicant might face as a consequence, were not articulated.  Those matters would have been largely, if not totally, self-evident in any event. 

1. It is trite that an appellate court can only intervene where error is shown.  It is not for me to substitute my discretion for that of the magistrate.  In circumstances where no specific error is alleged, the question is whether in all of the circumstances of the case the sentence is unreasonable, or plainly unjust.  There is no warrant to interfere if a course was taken which fell within the proper limits of the discretionary authority vested in the magistrate.

1. In this case, the applicant drove without due care and attention to the effect that, apparently without any contribution from road factors and weather conditions, his vehicle left the roadway, crashed through a fence, thus causing damage to property, and ended up in a large ditch.  All of this was unexplained.  The vehicle, which was owned by his employer, was extensively damaged.  These circumstances alone are cause for concern.  The applicant was obviously intent on avoiding contact with the police and had the presence of mind to telephone his brother-in-law to remove him from the scene.  Other people were left to attend to the aftermath of the accident and police resources were expended in efforts to locate the driver involved.

1. The applicant made no subsequent attempts to contact the police and no explanation was offered for that failure. 

1. The whole of the circumstances must be taken together with the applicant's past record, which albeit without recent serious matters, signifies a relatively poor attitude on the part of the applicant to his responsibilities as a road user.  It might be that said there was no evidence upon which a finding could have been made as to any actual or significant potential danger arising from the applicant's driving.  That raises the issue of public safety to which disqualification is usually directed.  See Sherburd v Jensen 102/1997 at 3 – 4, noted above.  Disqualification though, can be a punitive measure in relation to certain offences; for example, motor vehicle stealing under the Police Offences Act 1935, s37B. I would regard a reg287 offence as falling into that category of offences.

1. For those reasons, after careful consideration, I am unable to say that the imposition of the disqualification in this case made the sentence manifestly excessive.  The motion is dismissed.