Lowe v Narracott

[1987] TASSC 124

Serial No B54/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Lowe v Narracott  [1987] TASSC 124; B54/1987

PARTIES:  LOWE, Robert James
  v
  NARRACOTT, Rodney Shane

FILE NO/S:  LCA 78/1987
DELIVERED ON:  15 December 1987
JUDGMENT OF:  Cosgrove J

Judgment Number:  B54/1987
Number of paragraphs:  6

Serial No B54/1987
List "B"
File No LCA 78/1987

ROBERT JAMES LOWE v RODNEY SHANE NARRACOTT

REASONS FOR JUDGMENT  COSGROVE J

15 December 1987

1. On the 23 July 1987, the respondent appeared before a magistrate charged with driving a motor vehicle while his blood alcohol content was in excess of the prescribed amount. The actual blood alcohol content alleged was .09 grams of alcohol in every 100 millilitres of blood. The respondent pleaded guilty and was fined $150 and ordered to pay some costs; his driver's licence was cancelled and he was further disqualified from obtaining a driver's licence for a period of 15 months.

1. On the same day the learned magistrate heard an application by the respondent for a restricted licence under s36 of the Traffic Act 1925. The application was made in writing and showed that the applicant was aged thirty years, married, but separated, with five children. The application did not disclose the place of abode of the children, but in view of the fact that he claimed to be paying maintenance one can assume they do not live with him. He said in his application that he was a self employed builder, that he worked mostly on his own and that one of his tasks was to maintain roller shutter doors for Wormald International. He said that his hours of work varied according to the number of daylight hours but were confined within the hours of 7am and 7pm Mondays to Saturdays. He said that he was not alcohol dependant and that he was last convicted of a breathalyser offence in 1983 when the reading was .11%. He was given a licence to drive in the course of his occupation between the hours of 7am and 7pm Mondays to Saturdays inclusive.

1. In fact his record disclosed that in 1975 and 1976 he was on three occasions convicted of being a first year driver with alcohol in his blood and was disqualified on those charges for a total of 27 months. In 1975 he was also convicted of speeding and disqualified for a period of 3 months. He was again convicted of speeding in 1980, 1982, 1985 and 1986. In 1980 he was disqualified from obtaining a licence for 90 days on the basis of lost demerit points and a restricted licence was granted. In 1983 he was disqualified from obtaining a licence for 6 months on the Road Safety (Alcohol & Drugs) charge to which he referred in his application and a restricted licence was granted. On 20 August 1986, he was disqualified from obtaining a licence for 90 days on the basis of demerit points and again a restricted licence was granted. If one includes the present conviction, it shows that between 1975 and 1987, he was found guilty of charges involving the use of a motor vehicle while there was alcohol in his blood on five occasions, he was convicted of speeding on five occasions, and the grant of a restricted licence, which is the subject of this appeal, was the fourth occasion on which he had been granted a restricted licence.

1. It appears that because of some malfunction in the recording apparatus, the record of the hearing before the magistrate has been lost. I was informed by Mr. Baker who appeared as counsel for the respondent, both here and below, that there was some cross examination of the respondent but he could not remember the details.

1. The prosecutor has moved the court to review the grant of the restricted licence upon the ground that the magistrate erred in law and in fact in "failing to find that it would be against the public interest to grant a restricted licence to the respondent", or more correctly, in finding that it would not be contrary to the public interest to grant the licence. I was referred to the decision of Mr Justice Neasey in Hayes v Peterson 56/1972, the decision of Mr Justice Chambers in Webb v Robertson 13/1974 and the decision of the Chief Justice In the Matter of SW Stockman 17/1978. The decisions are easily reconcilable. I agree with the Chief Justice that the matters to be considered under the heading of public interest cover a very wide range which would include consideration of the question whether the grant of the restricted licence would so diminish the deterrent effect of the penalty imposed as to be contrary to the public interest in the punishment and deterrence of offenders. In my view, it would be appropriate to consider under that heading the question whether the repeated grant of a restricted licence by way of a mitigation of the hardship inherent in the penalty imposed, might well have the effect of encouraging in the offender the notion that the courts were loth to impose a full and proper punishment.

1. Because I have no record of proceedings before the magistrate, I hold that I should not grant this motion unless I am satisfied that it would not be reasonable in the light of the respondent's driving history and the facts set out in his application for any tribunal to grant him a restricted licence. I have come to that conclusion. The respondent is a persistent offender in respect of two serious breaches of the law of this State, namely speeding and driving with alcohol in the blood. His offence merited, in the mind of the magistrate, a disqualification for a period of 15 months and I certainly think that that was appropriate. In the light of his record, he must be regarded as a person whose driving is potentially more hazardous than the norm. Further, the public interest requires that repeated grants of restricted licences should occur only in exceptional circumstances. These circumstances are not exceptional. I conclude that his Worship either failed to consider the question of the public interest or in some way misdirected himself in considering it. I would have thought also that there was a significant doubt as to his worship's consideration of par(b) of subs(4) of s36, but that issue was not raised on appeal. The order granting the licence is quashed.