In the Matter of P G O'Connell

[1991] TASSC 132

Serial No B18/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              In the Matter of P G O'Connell [1991] TASSC 132; B18/1991

PARTIES:  IN THE MATTER OF P G O'CONNELL

FILE NO/S:  LCA 5/1991
DELIVERED ON:  Crawford J
JUDGMENT OF:  26 April 1991

Judgment Number:  B18/1991
Number of paragraphs:  14

Serial No B18/1991
List "B"
File No LCA 5/1991

IN THE MATTER OF P G O'CONNELL

REASONS FOR JUDGMENT  CRAWFORD J

26 April 1991

1. On 24 January 1991 the applicant, on his plea of guilty to a charge that on 4 October 1990 he drove a motor vehicle whilst alcohol was present in his blood in a concentration greater than the prescribed concentration of .05 grams per 100 millilitres of blood, to wit .134, contrary to s6(1) of the Road Safety (Alcohol & Drugs) Act 1970 was fined $400, ordered to pay court costs of $21 and disqualified from holding or obtaining a driver's licence for a period of 15 months. The commencement of the period of disqualification was ordered to commence twenty eight days later. Pursuant to s19 of the Act and s36 of the Traffic Act 1925 he made written application for an order authorising the granting of a restricted licence "to drive a motor vehicle during the period of my disqualification from my home at 21 Fore Street, Perth in Tasmania to my place of employment at CIG, 414 Hobart Road, Youngtown and return within the period of thirty minutes before the commencement of any shift that I am required to work and thirty minutes following the cessation of any shift that I am required to work". On 12 February 1991 a magistrate dismissed the application. This is an application to review that dismissal.

1. On the hearing of the application to the magistrate evidence was given by the applicant. He confirmed that the contents of his written application were true and correct and gave further evidence–in–chief and was cross–examined by a police officer. His evidence was as follows. He was 39 years old, divorced with one dependent child. He was employed by CIG at 414 Hobart Road, Youngtown as a dock hand and had been so employed for three years. He worked on a shift system, three shifts being involved. The day shift was from 7am to 3pm, the afternoon shift from 3pm to 11pm and the night shift from 11pm to 7am. His rostered days off varied according to the shift he was working. It was not uncommon for him to work seven days straight after which a number of rostered days off followed. He did not know with any certainty which shift he would be working. To find out he needed to see a roster. In cross–examination he said that he had spoken to CIG and ascertained that no alternative placement was available to him and that if he did not work on a shift basis he did not have a job. His income was $290 per week clear with increases when working the night shift. His commitments were $85 per week for rent, $65 per week for a garnishee payment, $30 per week for a car payment, $20 per week for maintenance and $30 per week for a property settlement, a total of $230 per week. Clearly his financial position was poor.

1. He gave no evidence of the distance from home to work but I assume it was between 10–12 kilometres and that for most of the journey he would travel on a busy major highway through country areas. His evidence was that there were no other available means of transport to enable him to get to and from work. Public transport was not available or viable and a taxi fare cost approximately $30 return. There was no work mate living in his area. He said that unless an order was made he would be unable to perform his work duties and would be dismissed from his employment.

1. He had held a driver's licence for about 23 years. He had one prior traffic conviction which was on 26 November 1987 for a similar offence committed on 22 August 1987 when his blood alcohol reading was .15 and he was fined $150, ordered to pay $14.10 and disqualified for three months. It did not appear that he obtained a restricted licence on that occasion. The circumstances of the 1990 offence involved a random breath test. He "didn't think I'd go over the limit". The background to the 1987 offence was that he had been drinking at the football with a few friends and on arriving home found that his wife had left home. He then drove "looking for her".

1. By s19(1) of the Road Safety (Alcohol & Drugs) Act 1970 it is provided that s36 of the Traffic Act 1925 applies to the applicant's conviction as it would apply if that offence were an offence under the Traffic Act 1925, but no order shall be made in respect of a conviction for an offence under the former Act if the person convicted has, within the three years immediately preceding the conviction, been convicted of a similar offence. The applicant avoided this provision because his previous conviction occurred about three years two months before. For the purposes of this case the other relevant statutory provisions are contained in s36 of the Traffic Act 1935. It authorises the making of an order authorising the granting of a restricted licence subject to such conditions or restrictions as shall be specified in the order. Subs.(4) is in the following terms:

"(4)     No order shall be made under this section unless the magistrate is satisfied –

(a)That the disqualification will impose or is imposing severe and unusual hardship on that person or his dependents;

(b)That the powers of this section should be exercised for the purpose of mitigating or alleviating that hardship; and

(c)That the exercise of those powers for that purpose would not be contrary to the public interest."

1. I next deal with the reasons expressed by the reamed magistrate for his dismissal of the application. Although on the face of the transcript there is some uncertainty, I interpret that he said that the applicant carried the burden of satisfying the court on the balance of probabilities of the matters set out in (a) (b) and (c) of s36(4). He said that the reading of .134 was "a significant reading, being some two and a half times the permitted maximum". The learned magistrate noted that the applicant was intercepted for random breath testing purposes and there were apparently no overt aspects of the driving that drew attention to him. He found it "particularly disturbing" that the applicant had the prior conviction involving a reading of .15 which was three times the permitted maximum. He pointed out that the second offence was committed less than three years after the conviction in November 1987. I should however point out that the dates of the two offences were more than three years apart as were the dates of the convictions. Having pointed out that if the subsequent conviction had occurred within three years of the first, the application would have been precluded by statute, his Worship continued:

"Although he is not barred by statute, the short time span between conviction of a significant breach, and re–offending in precisely the same way, and in a significant way, is a matter which weighs with me. I observe that for three months of the period to which I have just referred the applicant was disqualified from holding or obtaining a driver's licence in any event. Of course, his total driving experience, the circumstances of the offence, and all other matters must be and have been considered. In short, his driving record must be viewed fairly and realistically. Notwithstanding the applicant's apparent belief that he would not offend by driving on the 4th of October, 1990, the circumstances give me little confidence that he appreciated, or indeed, appreciates his obligation as a driver. I am mindful of the quite short distance and brief periods during which he wishes to drive, and I bear in mind that he wishes to drive only to and from his place of employment. However, that driving would be over a main highway and over a main arterial road on which one could anticipate that at many times of the day and night medium to heavy traffic could be encountered. In addition, driving to and from work doesn't necessarily eliminate the possibility that the applicant could be driving with alcohol in his body. I am not persuaded that the granting of the order would not be contrary to the public interest".

1. Having therefore determined that he was not satisfied of the matter contained in s36(4)(c) the learned magistrate then turned to consider s36(4)(b) and said that he was not persuaded that the discretion should be exercised pursuant to it to alleviate any hardship that the applicant might suffer. He then continued:

"It is appropriate that the applicant suffer the full deterrent effect of the disqualification. In any event I am not satisfied that the applicant could not make other arrangements to travel the distances involved. It has not be (sic) shown to the requisite standard that he is unable to secure lifts, to hitch–hike on these main roads, to cycle or perhaps to walk part, or even the whole of the distances on occasions, or perhaps to utilise a combination of these methods from time to time".

Although not expressly stated, it would seem from this passage that the magistrate was not persuaded of the requirement in paragraph (a) that the disqualification would impose severe and unusual hardship on the applicant.

1. The grounds of the application are as follows:

"1The Learned Magistrate erred in fact and in law in finding that the Applicant could take alternative steps to obtain a lift from his home to his place of employment and return.

2That the Learned Magistrate in fact and in law (sic) taking into account the route to be travelled by the Applicant.

3That the Learned Magistrate erred in fact and in law in not accepting uncontradicted evidence of the Applicant without making any adverse finding as to his evidence.

4That the Learned Magistrate erred in fact and in law in that he failed to have proper regard to the matters set forth in Section 36(4) of the Traffic Act, 1925.

5The Learned Magistrate erred in law and in fact in finding that the granting of a Restricted Licence to the Applicant would be contrary to the public interest."

1. I adopt what was said by Underwood J in Registrar of Motor Vehicles v Fleming 441989 as follows:

"The making of an order authorising the grant of a restricted licence involves the exercise of a judicial discretion. See Manning v Foster [1971] Tas SR (NC) 19, Burbury CJ 87/71; Strickland v Parsons, Everett J 57/81; Registrar of Motor Vehicles v Eeles [1984] Tas R 24. The exercise of the discretion is fettered by the provisions of the Traffic Act, s36(4) and additionally, in cases where the application arises as a consequence of a conviction for a breach of the Road Safety (Alcohol & Drugs) Act 1970, by the provisions of s19 of that Act.

Insofar as this motion seeks to review the exercise of the learned magistrate's discretion it falls to be determined in accordance with the principles generally applicable to the review of an exercise of judicial discretion. These principles are well known and need no repetition. See Cranssen v The King (1936) 55 CLR 509 at pp519–520; Harris v The Queen (1954) 90 CLR 652; R v Tait & Anor (1976) 46 FLR 386 at pp387–388. Insofar as the motion seeks to review findings of fact this Court will only set aside such findings if there was no evidence upon which a magistrate acting reasonably could reach the conclusion he did. See Taylor v Armour & Co Pty Ltd [1962] VR 346 at p351; Richardson v Shipp [1970] Tas SR 105 at pp117–118; Davidson v Registrar of Motor Vehicles, Cox J 3/89".

1. With respect I conclude that the learned magistrate erred by not being satisfied that the disqualification would impose severe and unusual hardship on the applicant. His assertion that he would lose his job if he could not get to work was not rejected and it is clear that in the present climate of unemployment loss of his job would probably cause severe financial hardship upon him. I can understand that if he was working only the day shift further evidence would have been required to satisfy a court that he was unable to arrange lifts. But taking into account that he would be travelling at different hours, depending on his rostered shift, to arrange lifts with other than fellow shift workers would clearly be very difficult for him. To suggest that over the next 15 months he could hitch–hike, cycle or walk was with respect to demand an excessively harsh stance. He needs to travel at night as well as day, in all weathers, on an often busy major highway for a not inconsiderable distance. Severe and unusual hardship was in my view clearly made out by the evidence. It is possible that closer cross–examination of him by the police officer might have revealed the availability of some reasonable form of transport or some reasonable and alternative place of residence closer to his place of employment. That is possible. But on the state of the evidence before the learned magistrate severe and unusual hardship was established.

1. I am also of the view that the learned magistrate erred by finding that he was not satisfied that the making of the order would not be contrary to the public interest. The only facts upon which this statement was based were the two similar convictions over a period of a little over three years, the size of the blood alcohol readings on each occasion and the fact that to get to and from work the applicant would travel over a main highway at various times of the day and night and at times when medium to heavy traffic could be encountered.

1. The nature of the public interest involved was considered by Neasey J in Hayes v Peterson [1972] Tas SR 86 at p89, Chambers J in Webb v Robertson 13/1974, Green CJ in the Matter of S W Stokman 17/1978 and Underwood J in Lowe v Mansfield 651988. Apart from his one prior conviction which occurred outside the period of three years provided for in s19(1) of the Road Safety (Alcohol & Drugs) Act 1970, the evidence before the learned magistrate was that he had no prior convictions notwithstanding that he held a driver's licence for about 23 years. Apart from that earlier conviction it was a good driving record. The 1987 offence was not connected with driving to or from work and there was no evidence to suggest that the 1990 offence was either. There was no suggestion that there would be any risk to the public in allowing the applicant to drive the 10 or 12 kilometres necessary to get him to and from work by the shortest and most practicable route which, l see from a road map, will involve driving through the country for most of the distance and will not involve passing licensed premises. It is my clear view that to enable the applicant to drive only over a short period of time and solely for the purpose of getting to and from work is not contrary to the public interest.

1. On the basis of the evidence before the learned magistrate, and in the light of what I have already said, l am also of the view that the learned magistrate was in error in failing to be satisfied that the powers of s36 should be exercised for the purpose of mitigating or alleviating the hardship the disqualification would cause the applicant.

1. Accordingly the application will succeed. The order of the learned magistrate dismissing the application will be set aside. I will discuss with counsel what course I should take in that circumstance.