Langley v Lyons
[2017] TASSC 48
•15 August 2017
[2017] TASSC 48
COURT: SUPREME COURT OF TASMANIA
CITATION: Langley v Lyons [2017] TASSC 48
PARTIES: LANGLEY, Joseph Colin
v
LYONS, Jason
FILE NO: 1438/2017
DELIVERED ON: 15 August 2017
DELIVERED AT: Hobart
HEARING DATE: 7 August 2017
JUDGMENT OF: Brett J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Whether "special circumstances" pursuant to the Road Safety Alcohol and Drugs Act 1970, s 17(5).
Road Safety Alcohol and Drugs Act 1970 (Tas), s 17(5).
Bottomley v McDonald [2002] TASSC 27, 36 MVR 484; Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Aust Dig Traffic Law [1156]
REPRESENTATION:
Counsel:
Applicant: P Sullivan
Respondent: E Bill
Solicitors:
Applicant: Paul Sullivan
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASSC 48
Number of paragraphs: 28
Serial No 48/2017
File No 1438/2017
JOSEPH COLIN LANGLEY v JASON LYONS
REASONS FOR JUDGEMENT BRETT J
15 August 2017
This notice to review concerns a penalty imposed by Magistrate McKee upon the applicant with respect to his plea of guilty to a charge of driving a motor vehicle with a blood alcohol concentration exceeding the prescribed concentration, and an associated regulatory charge of using his lights on high beam in the vicinity of an oncoming vehicle. The magistrate imposed a global penalty consisting of a fine of $2,500 and a disqualification from driving for a period of two years.
Both the fine and the driving disqualification were higher or equivalent to the minimum penalty prescribed for the relevant offence by s 17 of the Road Safety (Alcohol and Drugs) Act 1970 (the Act). Section 17(3) provides that a court that convicts a person of a drink driving offence must impose penalties, including a driving disqualification, which are not less than that specified in the Table set out in the section. In the case of the offence to which the applicant pleaded guilty, the minimum disqualification provided by the Table was that actually imposed, a period of two years. However, s 17(5) provides that the court may impose a lesser period than that prescribed by the Table if the defendant "satisfies the court … that there are special circumstances why … the minimum period of disqualification specified in the Table should not be imposed …".
During the sentencing proceedings, the magistrate heard evidence concerning the applicant's claim that there were special circumstances which justified a reduction of the penalty, in particular the driving disqualification, below the prescribed minimum. However, his Honour was not satisfied that the applicant had satisfied him of the existence of special circumstances for the purposes of the application of s 17(5). The applicant now seeks a review of the penalty, pursuant to s 107 of the Justices Act 1959, on the ground that the magistrate "erred in law and in fact in failing to find that there were special circumstances" why the minimum penalties "may not be imposed".
The offences were committed on 8 May 2016. The day before, the applicant, who resided at Hawley Beach, had travelled to Deloraine to attend a football match and post-match cabaret. He intended to consume alcohol and had arranged to spend the night at a friend's residence in Deloraine so that he would not have to drive home to Hawley Beach that night. When he arrived in Deloraine in the early afternoon, he parked his motor vehicle outside his friend's house and walked to the relevant venues. He consumed a considerable amount of alcohol during the ensuing hours. He last consumed alcohol at the function at the football clubrooms. He left the clubrooms at the end of the evening by himself, intending to walk back to his friend's residence. His evidence was that, as he left the clubrooms, he was attacked by three men who were standing outside. During the course of the attack, he was hit to the back of the head and knocked to the ground. He got up and walked away and was assaulted again from behind and knocked to the ground. He then ran for a couple of hundred metres. When he stopped, he was again struck to the back of the head, although he did not see the assailant. He believed that he was rendered unconscious. He woke up with gravel in his mouth and was in fear that he would die. He recalls getting up and running again.
His next memory is at the point that he was intercepted by police while he was driving his motor vehicle on the Bass Highway. The interception occurred at Parramatta Creek, which is approximately 20 kilometres from Deloraine and in the direction that he would travel if returning to his home at Hawley Beach.
The applicant underwent a breath analysis. The analysis returned a reading of 0.194 grams of alcohol per 210 litres of breath. During the course of the questionnaire associated with the analysis, the applicant made the following comments: "I run for my life", and "To protect my life, there was a car following me." The applicant was then taken to hospital. The hospital notes provided to the magistrate include a notation of a primary diagnosis of "concussion".
In the sentencing proceedings, it was put to the learned magistrate by the applicant's counsel that the applicant had driven his motor vehicle because he was in fear and attempting to escape from the persons who had perpetrated the assault on him. It was submitted that, notwithstanding that had he been thinking rationally, he might have concluded that he could seek safety without driving his vehicle, for example, by simply going into his friend's house, the magistrate should take into account that he would have been dazed, confused, and not thinking rationally because of the effects of the attack upon him. During the course of submissions, the magistrate pointed out, understandably, that the circumstances were equally consistent with the applicant's decision-making being affected, not by the effects of the attack upon him, but rather having regard to the effect of the alcohol which he had consumed during the course of the day. The magistrate pointed out the result of the breath analysis, and the applicant's own evidence about having consumed alcohol for several hours.
In order to deal with this issue, the applicant's counsel obtained and submitted a report from a psychologist, Dr Max Jacobs. The author of the report was not cross-examined. Dr Jacobs notes in the report that the applicant is suffering from aspects of post-traumatic stress disorder arising from the assault. He also opines that the "history strongly suggests that he was concussed by the blows to his head". Dr Jacobs' ultimate conclusion is expressed in the final paragraph of the report:
"Finally, he is obsessive in personality type, a worrier and an individual with high standards, reliable and has a strong work ethic. It is very unlikely, in my opinion, that he would have driven after consuming alcohol, under normal circumstances when he had arranged to sleep over in Deloraine. But, in view of the fact that he was both traumatized and concussed, he would not have behaved in a controlled, rational nor usual manner. In other words, these were exceptional circumstances, he was most likely very confused and disorientated and his behaviour automatic and reflexive and propelled by overwhelming fear and by adrenalin, rather than by any considered decision or thought. If he was concussed, as the history clearly indicates, he would not anyway have been able to think coherently."
The applicant's counsel also submitted that the psychologist's opinion as to the likely explanation for the applicant's driving is consistent with aspects of the applicant's background and character. Although he had two prior convictions for drink driving, these were many years ago (1989 and 1990). His record since then consists mainly of speeding and other minor traffic offences. An unchallenged statutory declaration by the friend with whom he intended to stay on the evening in question, confirmed that it was the applicant's usual practice to stay the night if he was intending to consume alcohol. It was submitted that it could be inferred that the applicant was usually careful about ensuring that he did not drive after consuming alcohol, and that he had in fact made appropriate arrangements for the night in question.
Finally, the applicant's counsel described the significant impact that a disqualification for two years would have on the applicant. He was employed in the mining industry. A driving disqualification would have a significant impact on his capacity to work. He was not eligible to obtain a restricted licence because of the level of the reading.
It was submitted to the magistrate on behalf of the applicant that all of the circumstances of the case, including those surrounding the commission of the offence, and the impact of a disqualification on the applicant's employment, when considered in combination, amounted to special circumstances why a disqualification for a period less than the prescribed minimum should be imposed.
The learned magistrate accepted the applicant's evidence as to the events of the evening. He accepted that the applicant had made arrangements to spend the night in Deloraine and had no prior intention of driving. He accepted also that the applicant had been assaulted in the way that he described, and had no recollection of driving his motor vehicle from Deloraine until his interception at Parramatta Creek. The learned magistrate inferred that the decision to drive "related to his concern for his safety and that was the reason for him driving his motor vehicle".
Ultimately, the magistrate was not satisfied that all of the circumstances taken together amounted to special circumstances which justified a penalty below the mandatory minimum fine and disqualification prescribed by the legislation. His Honour expressed the view that the assault and the applicant's ongoing fear of further assault, taken alone, did not justify driving to his home at Hawley Beach. He observed that the applicant could have achieved safety without the need to "drive a motor vehicle at all". For example, he could simply have entered his friend's home.
His Honour then turned to consider whether the applicant had established, on the basis of Dr Jacobs' opinion, that the decision to drive arose from "the defendant's state of confusion, disorientation and loss of memory" arising from the assault and consequent concussion. His Honour noted that Dr Jacobs had not addressed the role that "any excessive consumption of alcohol by the defendant may have had upon his decision making process". Accordingly, the magistrate was satisfied that it was equally open on the evidence that any confusion or disorientation had resulted from the applicant's alcohol consumption, as opposed to the effects of the assault.
On the hearing of the motion to review, the applicant's counsel did not challenge the magistrate's conclusion that the applicant was not justified in driving solely for the purpose of fleeing from Deloraine because of the assault and the perceived possibility of further assault. This concession was appropriate. It was clearly open to the magistrate to conclude that the applicant could have achieved reasonable safety by simply going into his friend's house. It is not difficult to think of other options available to him, including contacting the police. He certainly did not need to drive his car along the Bass Highway for a distance of approximately 50 kilometres to reach his home at Hawley Beach, in order to achieve reasonable safety.
The applicant's counsel argues, however, that it was necessary for the learned magistrate to consider all of the circumstances as a whole, and that having regard to the evidence of the psychologist in particular, he ought to have found that the applicant's judgment was impaired by the concussion suffered during the course of the assault, and that this circumstance, combined with the events of the evening, resulted in the applicant's decision to drive. Counsel argues that when all of the circumstances are taken into account, they are sufficiently unusual and mitigating to amount to special circumstances justifying a penalty less that the statutory minimum.
It is certainly correct that the magistrate was required to consider all of the circumstances collectively when determining the issue of special circumstances. Strickland v Whitehead [1995] TASSC 125. I am satisfied that his Honour, in fact, adopted that approach. He considered the suggestion from the psychologist that the applicant had been concussed by blows to the head and "that the concussion, confusion and disorientation and fear for his life would have resulted in the defendant not being able to think rationally and objectively". However, it is clear from his Honour's reasons that he was not satisfied on the balance of probabilities that those factors explained the applicant's decision to drive, rather than poor judgment resulting from his excessive consumption of alcohol. The learned magistrate noted that the onus was on the applicant to establish special circumstances, and concluded that:
"61Given the failure by Dr Jacobs to address the role if any excessive consumption of alcohol by the defendant may have had upon his decision making process, the Court is satisfied that it equally open that the defendant's state of confusion, disorientation and loss of memory, as identified by Dr Jacobs, could have been brought about by the excessive consumption of alcohol."
It is clear from this passage that his Honour's reasoning had distilled to the point that he had first raised during the course of submissions, that is, had the applicant established on the balance of probabilities that the decision to drive came about because of the confusion and disorientation arising from the assault, rather than a deliberate decision made by the applicant, or a misjudgment made in the context of his intoxication. It is clear, therefore, that his Honour contemplated that the confusion and disorientation arising from the effects of the assault could, taken in combination with the other circumstances, amount to special circumstances justifying a lesser penalty. I think that must clearly be correct. Such circumstances would be capable of being regarded as sufficiently "extraordinary, unusual or atypical" so as to properly fall within the description of "special" (see Baskerville v Martin [1967] SASR 156).
On the other hand, the magistrate was correct, in my view, to conclude that the circumstances only became "special" within the meaning of s 17(5) if the decision to drive was explained by the effects of the head injury, rather than excessive alcohol consumption. The assault may well have triggered and created the context of the decision, but a rational solution to the applicant's predicament did not require him to drive. A decision to drive as a drunken reaction to an extraordinary emergency, in circumstances in which driving is not a response which is reasonably and objectively necessary to deal with the emergency, is unlikely to fall outside "the general run of cases that parliament had in mind when it provided for the penalty of disqualification", and hence amount to special circumstances: Bottomley v McDonald [2002] TASSC 27, 36 MVR 484, per Blow J (as he then was) at [6].
It is clear, particularly from the passage set out above, that his Honour was not satisfied on the balance of probabilities that the evidence established that the effects of the head injury, rather than excessive alcohol consumption, explained the applicant's decision to drive. The question on the motion therefore becomes whether that conclusion was reasonably open to the magistrate on the evidence. In making this determination, it is appropriate to keep in mind the question to be determined on a notice to review under the Justices Act, s 107.
In Bottomley v McDonald (above), Blow J said at [7]:
"In deciding whether a group of circumstances is sufficiently special to enliven the discretion conferred by s17(5), a magistrate is required to make a value judgment. An appeal by way of notice to review is not to be treated as an appeal by way of rehearing, but is to be treated in the same way as an appeal from the verdict of a jury: Richardson v Shipp [1970] Tas SR 105 per Burbury CJ at 117; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 per Cox CJ at pars7-8."
In Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, Crawford CJ said at [46]:
"Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."
Applying the test discussed in these passages, the conclusion reached by the learned magistrate was reasonably open to him on the evidence before him. The only evidence capable of establishing that the decision to drive was attributable to the effects of the assault was the opinion expressed in the report of the psychologist. The applicant's usual practice provided some support for that conclusion, but of itself, could not establish that matter. The psychologist's reasoning proceeded as follows:
(a)The applicant was showing symptoms of post-traumatic stress disorder. In particular, he had developed a "conditioned anxiety response" to Deloraine because of the trauma of the assault, had become "somewhat withdrawn", felt unsafe when he was away from his home, and had become anxious and hyper vigilant when socialising and away from home.
(b)The symptoms of PTSD indicated that "he was traumatised in a state of shock and terrified by the assault and wanted to flee the place".
(c)He was concussed by blows to his head. In such a state of concussion, confusion and disorientation, and fearing for his life, he would not have been "able to think rationally and objectively".
(d)He is obsessive in personality type, a worrier and an individual of high standards, reliable and has a strong work ethic.
On the basis of these considerations, the psychologist reached the conclusion that the applicant's behaviour was attributable to the effects of the head injury.
The psychologist, as an expert, was certainly entitled to express opinions based on his expertise. He was entitled to express an opinion that the applicant was traumatised by the assault and might have been confused and disoriented as a result of the concussion. However, he went well beyond his area of expertise by then concluding from the existence of the psychological consequences of the assault, that as a matter of fact, this was the reason for the applicant driving on the night in question. With respect, the observations by the psychologist as to the applicant's psychological state after the assault were unremarkable and hardly surprising. He may well have been motivated to drive back to his home because of the assault and the ensuing psychological consequences, and the concussion and confusion may have contributed to an impairment of his decision-making capacity. However, the question of whether this was actually so was a question of fact for the magistrate, having regard to all of the surrounding circumstances. That conclusion was not, and could not have been within the ambit of the psychologist's expertise.
Further, the magistrate was correct to observe that the psychologist did not deal, to any significant degree, with the possibility that the applicant had made the decision to drive because of the effects of his alcohol consumption. The breath analysis result indicated a very high level of alcohol in the applicant's body. This was also a potential explanation for the poor judgment involved in the decision to drive. However, although the psychologist had referred to the fact that the applicant had been consuming alcohol and was affected by alcohol, he did not explain why it was the effects of the concussion and the trauma, as opposed to the effects of the alcohol, that was the operative factor in the applicant’s decision to drive. In these circumstances, it was impossible for the magistrate to exclude the alcohol as an explanation.
It follows that the conclusion of the learned magistrate was open to him, having regard to the evidence. He was entitled to conclude, as he implicitly did, that the evidence did not establish that the applicant's decision to drive back to his home at Hawley Beach resulted from the effects of the head injury rather than the alcohol he had consumed. It may well be that the decision was heavily motivated by trauma and fear and a desire to escape from the assailants, but the applicant clearly had other options, and it was open to the magistrate to conclude that had the applicant not been affected by alcohol, he would have appreciated this. Accordingly, although the surrounding circumstances could be said to be unusual, the magistrate was justified in concluding that he was not satisfied that they explained the applicant's driving, and accordingly that the applicant had established the existence of special circumstances which justified a reduction in the penalty below the minimum specified in the legislation.
Accordingly the ground of review has not been made out. The motion to review is dismissed.
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