Jones v Registrar of Motor Vehicles

[1989] TASSC 69

Serial No 69/1989
List "A"

CITATION:              Jones v Registrar of Motor Vehicles [1989] TASSC 69; A69/1989

PARTIES:  JONES, Bradley John
  v
  REGISTRAR OF MOTOR VEHICLES

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 25/1989
DELIVERED ON:  30 November 1989
JUDGMENT OF:  Underwood J

Judgment Number:  A69/1989
Number of paragraphs:  11

Serial No 69/1989
List "A"
File No LCA 25/1989

BRADLEY JOHN JONES v REGISTRAR OF MOTOR VEHICLES

REASONS FOR JUDGMENT  UNDERWOOD J

30 November 1989

1. This is an application to review an order of a magistrate dismissing an application for an order authorising the grant of a "restricted licence". The single ground of appeal is that the learned magistrate erred in law in finding that he was not satisfied that it would not be contrary to the public interest to authorise the granting to the applicant of a restricted licence.

1. The power to make an order authorising the grant of a "restricted licence" involves the exercise of a judicial discretion. The exercise of that discretion is fettered (so far as is material for the purposes of this case) by the provisions of s36 (4) of the Traffic Act 1925 which provides:–

"S36(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 dependants;

(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. The applicant was a self employed electrician. He was aged 34 years at the time of the application, married and without children. He had held a driver's licence since he was 17. Between 1975 and 1978 he was convicted of five relatively minor breaches of the Traffic Regulations. Between 1980 and 1982 he was convicted of three more breaches of the Traffic Regulations and, by virtue of the provisions of the Act, s43E, was disqualified on 27 October 1982 from holding or obtaining a driver's licence for ninety days. Two days later an order was made authorising the grant of a restricted licence. In 1984 he was convicted of disobeying a road sign and on 6 February 1985 he was convicted of a breach of the Road Safety (Alcohol and Drugs) Act 1970, s6(1), fined, and disqualified from holding or obtaining a driver's licence for six months from 6 March 1985. On 7 March 1985 an order was made authorising the grant of a restricted licence. On 2 April 1986 he was convicted of speeding and on 11 September 1989 again convicted of a breach of the Road Safety (Alcohol and Drugs) Act 1970, s6(1). The particulars on the complaint to which he pleaded guilty allege that the concentration of alcohol in his blood was .189 grams of alcohol per 100 millilitres of blood. The applicant was fined and disqualified from holding or obtaining a driver's licence for twelve months. The order of disqualification was postponed for twenty–one days to enable the applicant to make an application for an order pursuant to the Traffic Act, 1925 s36 (1). That application was dismissed and the order of dismissal is the subject matter of this motion to review.

1. With respect to the circumstances surrounding the commission of the offence, the applicant admitted that after work he joined some friends at a hotel and drank beer. He telephoned his wife and arranged for her to meet him at the hotel later on and for the two of them to then go to a social function. He said:–

"I stayed a little bit longer than I'd anticipated. I suppose the pressure was released on me a little bit after a few drinks. I tried to ring my wife later on and I couldn't find her. So then I was in a predicament whether to leave my van in town or to take it home. I … there was … I possibly … at that point in time there was possibly $3000 to $4000 worth of material in my car as well as tools. I then decided to drive which I now regret and I was apprehended and charged."

1. The applicant's application was for an order authorising the grant of a licence to drive a motor vehicle in the 003 telephone district between 7 a.m. and 7 p.m. each day of the week except Sunday.

1. The applicant said that he worked on his own, basically wiring and fitting out recently constructed houses and carrying out electrical repairs. He said that he carried all his tools and equipment in his van. He also said that he had been self employed as an electrician for eight years and that he had always worked on his own. He said that he was unqualified and unskilled in any other occupation. With respect to financial hardship, the applicant said that he was "taking the sum of $200 per week from his business and from those monies he purchased groceries for himself and his wife in the sum of $80 per week." His wife was apparently in employment earning approximately $250 per week. He gave some evidence that he believed that it would be difficult for him to find work as an employed electrician. Following an adjournment of the hearing, the magistrate received a report from a medical practitioner indicating the absence of alcohol dependency.

1. In his reasons for dismissing the application, the learned magistrate referred to the applicant's previous convictions. He observed that the offence which gave rise to the application was not a trivial offence and said that he was not satisfied that it would not be contrary to the public interest to make an order authorising the grant of a restricted licence. In my opinion no error in the exercise of the judicial discretion can be detected. On two previous occasions the applicant had been given the benefit of an order authorising the grant of a restricted licence. On the day of the commission of the last offence, the applicant knew that his blood alcohol concentration exceeded the prescribed limit. He knew from his previous experience that, if detected, he would be disqualified from holding or obtaining a driver's licence. Having twice previously obtained an order authorising the grant of a restricted licence, he ought to have known that, upon further conviction, the prospects of obtaining another such order were considerably reduced. Notwithstanding all of this, the applicant deliberately chose to take the risk and to break the law. His blood alcohol concentration was three times in excess of the prescribed maximum. In these circumstances, it appears to me in an affirmative way that to make an order authorising the applicant to drive for twelve hours a day, six days a week over a considerable area of the State, would be contrary to the public interest.

1. The applicant told the learned magistrate that since the commission of the last offence he had been advised by his medical practitioner that his blood had a very high cholesterol level and that he had accepted his doctor's advice not to consume alcohol. No challenge was made to this assertion and accordingly, it was appropriate for the learned magistrate to assess the question of public interest upon the basis that, during the currency of any restricted licence, the applicant would be unlikely to drive with alcohol in his blood in excess of the prescribed maximum.

1. Since the decision of In re Stockman [1978] Tas SR (NC) 218, this court has consistently held that, in considering the issue of public interest pursuant to the Traffic Act, 1925 s36 (4)(c), it is appropriate to have regard to the effect the making of an order under s36 (1) will have upon the general and personal deterrent effect of a sentence of licence disqualification. See for example, Mooy v Carter, Neasey J 3086. I would venture to repeat a passage from a judgment of mine in Lowe v. Mansfield, 6588, at pp7–8:–

"1        Having regard to the tenor of the Act, primarily, the public interest is in the protection of the public from the danger created by those who drive motor vehicles whilst affected by liquor.

2         Relevant matters for consideration under 1 include –

(a)the likelihood of danger to the public if the order sought were granted;

(b)the effect the making of an order would have upon the particular and general deterrent effect created by the penalty of licence disqualification.

3         Relevant matters for consideration under 2 include –

(a)the nature and extent of the restrictions upon driving sought to be included in the order;

(b)the likelihood of the applicant driving whilst his judgment is impaired by liquor;

(c)the circumstances surrounding the commission of the offences and the previous convictions (if any) of the offender."

1. The learned magistrate exercised his discretion in accordance with the above principles. Although there was no or little likelihood of the applicant driving with a blood alcohol concentration in excess of the prescribed maximum, the restrictions proposed by the applicant were minimal and, having regard to the circumstances surrounding the commission of the offence and the previous convictions of the applicant, it was well within the proper exercise of the learned magistrate's discretion to reach the conclusion that he was not satisfied that it would not be contrary to the public interest to make the order sought.

1. The application is dismissed.