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

1. 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.

1. 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.

1. 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). Prima facie a second such offence committed barely two months after conviction for a like offence calls for condign punishment. Unless there was some reasonable explanation for the offence or other mitigatory feature, the sentence, which merely extended his existing term of disqualification by one month without imposing any custodial or pecuniary penalty, was manifestly inadequate.

1. The explanation offered to the learned magistrate by counsel for the respondent the substance of which, in a global adoption, was sworn by the respondent to be true, was that he had gone with Clark in the latter's car from New Norfolk to Bridgewater where they had visited a friend of Clark, who took with him "some twelve stubbies of beer" and while there "consumed nearly all those stubbies" while the respondent had no alcohol at all. Counsel went on:

"My instructions are then, sir, that at about 5.00pm that evening both the defendant and Mr. Clark left that residence and travelled back to New Norfolk. My instructions are, sir, that Mr. Clark was indeed driving that motor vehicle and indeed drove it for some period of time on the Boyer Road. The defendant tells me, sir, that when Mr. Clark crossed the railway crossing near Bridgewater he nearly hit a guidepost. He tells me as he was approaching the group of houses at Dromedary he nearly cleaned up a telegraph pole. As a consequence the defendant persuaded Mr. Clark to pull his motor vehicle over. The defendant after some argument persuaded Mr. Clark that the vehicle shouldn’t be moved but Mr. Clark insisted that the vehicle be taken to New Norfolk. The defendant, who at that stage, sir, was still a relatively young immature youthful 18 year old, elected to drive that motor vehicle back to New Norfolk. It was whilst in the process of driving towards New Norfolk that the defendant was indeed seen by Constable Cordwell. ... From the circumstances I have outlined to the court, sir, the defendant found himself in a situation where he had to placate his friend and as a consequence felt that he had to drive that particular motor vehicle home. Now he wasn't spotted driving the motor vehicle through any inadvertence on his behalf. My instructions are the vehicle was driven in a proper and legal manner other than the fact that the defendant didn’t hold a driver's licence. So in the circumstances it’s my submission that although the public doesn't benefit from the fact that the defendant drove the vehicle whilst he was disqualified it stopped potential danger on the road in the form of Mr. Clark driving that motor vehicle the distance back to New Norfolk."

1. Counsel, in response to a question from the learned magistrate, said that had Clark’s condition been apparent to the respondent prior to their commencing the return journey, he could have procured accommodation overnight with friends who lived within ten minutes' walking distance. He asserted that in fact Clark’s incapacity was not then apparent to him. Counsel continued:

"He says that Clark spent an hour and a half at the residence consuming alcohol. He was aware that he had been consuming alcohol but as far as he was aware, and he can give sworn evidence to that effect, sir, that when Clark left that particular residence Clark appeared to be capable of driving."

1. The learned magistrate then invited the respondent to give sworn evidence, the following parts of which are relevant for present purposes:

"Magistrate:     You've heard what Mr. Rainbird has said in explaining why you were driving on 27th April. Do you say on your oath that that’s true?

A:       Yes.

Q:       Mr. Banks, are you aware of how many articles of alcohol Mr. Clark took to the residence?

A:       Roughly a dozen, probably a bit more.

Q:       Are you aware of how many of those stubbies or cans that he drank on the day in question?

A:       About ten or eleven.

...

Q:       And when he elected to leave did you elect to go with him?

A:       Yes.

Magistrate:      What did you believe about his condition at that stage?

A:       He seemed alright at the time but once we got out and got into the fresh air and he started driving that's when it started affecting him.

...

Q:       And at what stage did you notice Mr. Clark was incapable of controlling his vehicle?

A:       Well once we’d – once he nearly hit the bridge and a couple of guide posts."

1. While Mrs. Watson, who represented the complainant, cross–examined the respondent on an apparent discrepancy between his evidence and certain statements made to the police on 29 April 1991, she did not traverse his claim to ignorance of Clark's incapacitated condition nor deal with the circumstances in which the respondent had resolved to drive the car to New Norfolk. Equally she did not address any cross–examination to the question of what form Clark’s insistence the car be taken to New Norfolk had taken.

1. The learned magistrate, in the course of passing sentence, said:

"I have heard you give an explanation on your oath. Mrs. Watson enquired of an ambiguity in your statement when you were interviewed two days later, but it does not of necessity amount to a contradiction then of what you've said to–day and so I feel reasonably satisfied in accepting what you’ve said on oath that you did so only because your friend's driving appeared to be impaired after he had commenced the journey of driving you and him home. And while it’s true that that having become apparent you could have simply left the vehicle, had you done only that, you would have been looking after yourself only rather than your friend as well and perhaps you acted in a responsible fashion to a degree in taking over the driving once his difficulty did appear, and so as far as you're concerned I don’t believe that you personally merit great punishment."

1. While in the circumstances a finding that Clark's impaired condition was not apparent to the respondent at the time of entering the car for the return journey might be open and is not challenged in the Notice to Review, the fact remains that the respondent, being aware that his companion had consumed ten or eleven stubbies of beer prior thereto, placed himself in the situation of relying upon him for his return to New Norfolk and upon Clark demonstrating his incapacity to drive safely "placated" him by driving the car himself to the town where they both resided. Nothing was advanced in the course of the evidence (including the address by counsel which was adopted by the respondent) which constituted any sort of reasonable explanation why the respondent felt compelled to drive the car himself. No attempt was made to reveal the nature or extent of Clark’s insistence that the car be taken to New Norfolk. There was a vague hint from counsel that the respondent anticipated that if he had not done so Clark would have persisted in driving to the danger of himself and of other road users, but there was no evidence to that effect, nor was there any suggestion that the respondent was subjected to any kind of duress to drive the car there himself. The learned magistrate accepted that the respondent could have left the vehicle, and there is no suggestion that such a course would have left him stranded in a remote and inhospitable locality. At worst it was 7 kilometres from his home and still quite close to Bridgewater where friends could have accommodated him. The learned magistrate stopped short of positively asserting that the respondent had acted in a responsible manner in taking over the driving, prefacing his comment with the word "perhaps", but this would seem to be the only reason why he should consider that the respondent did not merit great punishment.

1. No proper explanation was advanced for the respondent's decision to drive while disqualified. Any characterisation of it as a responsible one, in the circumstances, was not only without foundation but in my opinion contrary to the evidence placed before the magistrate, notwithstanding his acceptance of the respondent’s truthfulness. While I concede the possibility that circumstances might arise where, there being a real risk that an intoxicated person in charge of a vehicle would drive it and thereby endanger himself and/or members of the public unless a disqualified but competent driver took the wheel, the latter's action in altruistically doing so for that reason might significantly reduce his culpability, the evidence placed before the learned magistrate fell far short of demonstrating that such an emergency existed. In the circumstances the penalty imposed was manifestly inadequate. The appeal will be allowed and the sentence quashed. I remit the matter to another magistrate for sentence according to law.