Johnson v Middleton
[1989] TASSC 111
•8 September 1989
Serial No. B33/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Johnson v Middleton [1989] TASSC 111; B33/1989
PARTIES: JOHNSON
v
MIDDLETON
FILE NO: LCA 80/1989
DELIVERED ON: 8 September 1989
JUDGMENT OF: Underwood J
Judgment Number: B33/1989
Number of paragraphs: 14
Serial No B33/1989
File No LCA 80/1989
JOHNSON v MIDDLETON
REASONS FOR JUDGMENT UNDERWOOD J
8 September 1989
This motion seeks to review the following orders of a magistrate:
1That the applicant be disqualified from holding or obtaining a driver's licence for a period of 12 months from 19 July 1989.
2That the application for an order authorising the grant of a restricted licence be dismissed.
Counsel for the applicant abandoned the ground supporting the motion to review the order of disqualification. The single ground to review the order dismissing the application for an order authorising the grant of a restricted licence was that:
"The learned magistrate erred in fact and in law in determining that he was not satisfied that it would not be contrary to the public interest for the applicant to be granted a restricted licence."
The applicant was convicted of driving a motor vehicle when the concentration of alcohol in his blood exceeded the prescribed maximum, contrary to the Road Safety (Alcohol & Drugs) Act, s6(1). At about 12.20am on 20 April 1989 the police were conducting a random breath test on Main Road, Glenorchy near the Carlyle Hotel. The applicant was driving his car north along Main Road until approximately 150 metres away from the police. He then did a "U" turn and the police gave chase. The applicant turned down Derwent Park Road and then into Chesterman Street. He turned into the forecourt of 14A Chesterman Street, switched off the lights and lay down on the seat. He was apprehended by the police and taken to a police station where a breath analysis test was conducted. The applicant was found to have a concentration of .132 grams of alcohol per 100 millilitres of blood.
Counsel for the applicant told the learned magistrate that the applicant had attended a function at the Polish Club. There he remained longer than he had originally intended. Prior to leaving the Polish Club the applicant suspected that his blood alcohol level may have exceeded the maximum permissible concentration but not to the extent later detected by breath analysis. On observing the random breath test unit the applicant fled in an attempt to avoid detection.
The applicant had a number of prior convictions including:
25.6.84 Exceed .05 Fined Disq. 6 months
(South Aust) Speeding (dangerously) Fined Disq 12 months
12.11.85 Speeding (Infringement Notice)
12.11.85 Speeding (Infringement Notice)
On 10 December 1985 the applicant's driver's licence was suspended for 90 days pursuant to the provisions of the Traffic Act, s43E. The following day an order was made authorising the grant of a restricted licence.
28.3.89 Speeding (Infringement Notice)
9.5.89 Drive without due care Fined
and attention.
The last conviction was not a prior conviction for the purpose of imposing penalty for the offence which gave rise to the present disqualification but, as the offence was committed on 3 March 1989, was a relevant matter to be taken into account on the application for an order authorising the grant of a restricted licence.
The applicant was aged 31 and lived at Molesworth. He was employed as a milk vendor liaison officer by Tasmaid Foods at 215 Lenah Valley Road, Lenah Valley. In the course of his employment the applicant worked as a liaison officer between the company and 129 milk vendors throughout the State. He was required to supervise the distribution of his employer's products throughout Hobart and assist with sales campaigns. His employer supplied him with a motor vehicle. His usual hours of work were from 7.30am to 6pm Monday to Friday but he was required to travel regularly to other parts of the State. In addition, he was required to work outside his ordinary hours to attend to emergencies occurring either at night or during the weekends.
In support of his application a letter from the Marketing Services Manager of the applicant's employer was tendered in evidence. It read in part:
"As Milk Services Officer for the State, Neil acts as the Statewide link between Tasmaid and its 129 milk vendors, who are scattered throughout the State. In addition, his role involves supervision of Hobart based distribution activities and helping the sales team in selling campaigns. All of these tasks requires him to be mobile and have a current driver's licence. Tasmaid would review Mr Johnson's position were he to lose his licence."
In his evidence in support of the application the applicant admitted that, with respect to the events which led to the prior conviction in South Australia and the current matter, he suspected that he may have been driving with a blood alcohol concentration in excess of the prescribed maximum but "took the chance". He was asked:
"QBut you have, as I say, had the benefit of a restricted licence. Surely when you drove on this particular night you must have had it in your mind that you'd had the benefit of that licence and didn't it cross your mind that if you were picked up you were going to get put on the breathalyser again?
AI'd have to honestly say yes.
QIt did cross your mind but you still took the chance?
AYeah. Yes sir I did."
The learned magistrate held that he was satisfied that the order of disqualification would impose severe and unusual hardship on the applicant. With respect to the question of public interest the learned magistrate referred to the convictions in South Australia and the applicant's prior convictions in Tasmania and said:
"What concerns me about the public interest aspect in this application is the applicant's attitude to the road laws. That is a matter which is within the province of the court to consider from the authority of Stokman. ... The applicant took it upon himself to drive knowing, as he admitted, that he was over the limit. [The learned magistrate then referred to the applicant's attempt to avoid detection.] He has therefore a serious, in my view, at least a moderately serious set of offences in South Australia some five years ago. He has disobeyed the speeding laws twice in one day. He has two prior matters after the grant of a restricted licence upon which he had the benefit of the court's indulgence to drive notwithstanding disqualification. On this occasion he took it upon himself to drive having consumed alcohol and attempted to evade detection. In my view, the authority of Stokman is clear, that the attitude of the person seeking the indulgence of the court is a matter which is relevant. This was a reading which was nearly three times the limit, so, on the face of it, it was not one which could be described as an insignificant breach of these regulations ... and in view of the fact that the applicant had a prior history under similar legislation its relevance is even more significant. In my view, having seen the applicant and heard his explanations as to his prior offences, I am not satisfied that it would not be contrary to the public interest to grant this licence. In my view, the applicant has shown a disregard of the traffic laws, [sic] both on this occasion and on other occasions, and in my view, this is a case where the full force of the disqualification ought to take effect."
It cannot be said that, on the material before him, the conclusion reached by the learned magistrate was one which was not reasonably open to him. In In re Stokman Green CJ 17/78 his Honour said at p5:
"... In some cases it would be appropriate for the Court to conclude that the offence for which the disqualification was imposed was so serious, or so prevalent, or that the applicant's history was such, that the need to preserve the full punitive or deterrent effect of an order of disqualification outweighed other considerations to such an extent that to issue a licence would be contrary to the public interest."
In Lowe v Mansfield, a judgment of mine No 65/88, I held that a relevant matter for consideration upon the issue of public interest was the effect the making of an order authorising the grant of a restricted licence would have upon the particular and general deterrent effect created by the penalty of licence disqualification and in that context, the circumstances surrounding the commission of the offence and the previous convictions of the applicant.
The applicant had a previous conviction for driving with alcohol in his blood in excess of the prescribed maximum concentration. He had also had the benefit of an order authorising the grant of a restricted licence following disqualification from holding a licence pursuant to the provisions of the Traffic Act, s43E. In this background and with the knowledge that his blood alcohol concentration probably exceeded .05% the applicant deliberately drove his vehicle on a public street. He must have known that detection and apprehension would almost certainly lead to licence disqualification thereby putting his employment in jeopardy. Although the applicant could not be described as a persistent offender he was not a first offender. His conduct constituted a flagrant flouting of the laws designed to combat the notorious social evil of driving whilst judgment is impaired by the consumption of alcohol. In these circumstances the making of an order authorising the grant of a restricted licence would certainly weaken the personal and general deterrent effect of the order of disqualification. No error is detectable in the conclusion of the learned magistrate that he was not satisfied that the making of the order sought would not be contrary to the public interest.
The motion to review is dismissed.
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