Maher v Banks - [1992] TASSC 67

Serial No 7/1992
List “A”

CITATION: Maher v Banks [1992] TASSC 67; A7/1992

PARTIES:  MAHER
  v
  BANKS

TITLE OF COURT: SUPREME COURT OF TASMANIA

FILE NO/S:  LCA 122/1991
HEARING DATE:  3 March 1992
JUDGMENT OF:  Cox J

Judgment Number: A7/1992
Number of paragraphs: 10

Serial No 7/1992

List "A"

File No LCA122/1991

MAHER v BANKS

REASONS FOR JUDGMENT COX J

3 March 1992

By this Notice to Review the applicant challenges as manifestly inadequate a sentence imposed in the Court of Petty Sessions on the respondent for the offence of driving while disqualified contrary to the Traffic Act 1925, s.37(1). On 8 November 1990 the respondent had been convicted of a number of offences, including motor vehicle stealing and driving while the concentration of alcohol in his blood exceeded the prescribed concentration of 0.05%, and was disqualified for driving on each of those charges concurrently for a period of twelve months. On 26 November 1990 he committed the offence of driving while disqualified and was convicted therefor on 21 February 1991. On that occasion he was ordered to do forty–nine hours of community service and disqualified for twelve months to date from that day. Effectively his period of disqualification was increased by a further three months.

On 27 April 1991 he was observed driving a motor vehicle with a passenger on Boyer Road near Dromedary by an off–duty police officer but was not then intercepted. Two days later he was interviewed by police and asked why he had been driving when he was disqualified. He replied, "Because Adrian had been drinking and would have blown the breatho." The learned magistrate was told that he had driven a distance of about 7 kilometres from Dromedary to the home, in New Norfolk, of his friend Adrian Clark, who was the owner of the car and with whom he had earlier that day travelled from New Norfolk to Bridgewater and thence, at about 5.15pm that Saturday afternoon, to a point near Dromedary where Clark had been persuaded to stop driving. The respondent pleaded guilty to this offence on 20 November 1991 and by way of penalty was disqualified for holding or obtaining a licence to drive a motor vehicle, this time for a period of one month to commence at the expiration of his then current disqualification.

The penalty for a first offence of driving while disqualified is five penalty units or three months' imprisonment, or both, while the penalty for a second or subsequent offence is ten penalty units or six months’ imprisonment, or both. In addition, a court has power under the Traffic Act, s34, to disqualify an offender for such period as it may specify. It is self–evident that deliberate disobedience of a disqualification order cannot be viewed lightly or such orders would lose their force and bring the law into disrespect (see the comments of Bray CJ in Law v Deed [1970] SASR 374, at 377, and of my brother Zeeman in Davies v Petersen Unreported No 501991).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maher v Banks

Details

AGLC: Maher v Banks [1992] TASSC 67
Case: [1992] TASSC 67
Decision Date: 3 March 1992

CaseChat Overview and Summary

In the case of Maher v Banks, the applicant, Maher, sought to challenge the sentence imposed on Banks for the offence of driving while disqualified, arguing that it was manifestly inadequate. Banks had been disqualified from driving for twelve months following convictions for motor vehicle stealing and driving while over the prescribed alcohol limit. Despite his disqualification, Banks drove again and was convicted and sentenced to one month's disqualification, which extended his existing term of disqualification. The penalty for a first offence of driving while disqualified is five penalty units or three months' imprisonment, or both, while the penalty for a second or subsequent offence is ten penalty units or six months’ imprisonment, or both. The court was required to decide whether the sentence imposed was manifestly inadequate.

The court found that the sentence imposed was manifestly inadequate. Banks had driven while disqualified despite being aware that his companion had consumed a significant amount of alcohol prior to the journey. Banks placed himself in a situation of relying on his companion for his return to New Norfolk and, upon discovering his companion's incapacity to drive safely, drove the car himself. The court found that no proper explanation was advanced for Banks' decision to drive while disqualified, and any characterisation of it as a responsible one was contrary to the evidence placed before the magistrate. The appeal was allowed, and the sentence was quashed. The matter was remitted to another magistrate for sentence according to law.

Orders