Milner v Bonde
[2018] TASSC 42
•19 September 2018
[2018] TASSC 42
COURT: SUPREME COURT OF TASMANIA
CITATION: Milner v Bonde [2018] TASSC 42
PARTIES: MILNER, Wayne
v
BONDE, Michael (Acting Sergeant)
FILE NO: 2203/2018
DELIVERED ON: 19 September 2018
DELIVERED AT: Launceston
HEARING DATE: 14 September 2018
JUDGMENT OF: Pearce J
CATCHWORDS:
Traffic Law – Licensing of drivers – Tasmania – Generally – Restricted licence – Public interest – Need to maintain the deterrent effect of orders for disqualification.
Vehicle and Traffic Act 1999 (Tas), s 18.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 19.
Hayes v Peterson [1972] Tas SR 86; In re Stokman [1978] Tas SR (NC) 4; Davies v Deverell (1992) 1 Tas R, 214, applied.
Aust Dig Traffic Law [1056]
Magistrates – Appeal and review – Motion to review – Tasmania – Other matters – Nature of review of discretionary decision – Appeal against refusal of application for restricted licence – Error not established.
Justices Act1959 (Tas), s 107(4)(a).
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Appellant: G W Tucker
Respondent: S Thompson
Solicitors:
Appellant: Grant Tucker
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 42
Number of paragraphs: 17
Serial No 42/2018
File No 2203/2018
WAYNE MILNER v ACTING SERGEANT MICHAEL BONDE
REASONS FOR JUDGMENT PEARCE J
19 September 2018
This motion challenges the decision of a magistrate, Mr K Stanton, to refuse the applicant's application for a restricted licence. The respondent is a police officer. The ground of appeal is that the magistrate "erred in fact and in law" in finding that the grant of a restricted licence to the applicant was contrary to the public interest.
On 19 June 2018 the applicant pleaded guilty to driving a motor vehicle on 4 February 2018 while alcohol was present in his breath or blood in a concentration of 0.057, contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the RSAD Act), s 6. He was convicted, fined $700 and disqualified from driving for six months. The applicant also pleaded guilty to failing to have proper control of his vehicle contrary to the Road Rules 2009, r 297(1). Both offences arose from the same act of driving. The commencement of the period of disqualification was postponed to enable him to apply for a restricted licence. The application was heard on 30 July 2018. By the RSAD Act, s 19(1), a person convicted of an offence under that Act may apply for a restricted driver licence under the Vehicle and Traffic Act 1999, s 18. That provision permits a court to make an order authorising the issue of a restricted driver licence only if the court is satisfied that:
"(a)the licence suspension or disqualification is imposing, or will impose, severe and unusual hardship on the applicant or the applicant's dependants; and
(b)a restricted driver licence should be issued to mitigate or alleviate that hardship; and
(c)the issue of the restricted driver licence would not be contrary to the public interest."
One course open to his Honour was to grant the application but increase the period of disqualification to which the applicant was subject by an amount not exceeding the remaining period of disqualification: RSAD Act, s 19(1B). Because the applicant had not served any part of the period of disqualification, the magistrate could have increased the period by six months to 12 months.
The evidence before the magistrate established that, at the time the application was heard, the applicant was 45. He is in a stable relationship. He and his partner live at 61 Main Street Derby. The evidence does not disclose much detail of the offence except the applicant said that it took place during a weekend, it "had nothing to do" with his employment, he thought that the amount of alcohol he had consumed would not put him over the limit, but he drove into a pole when swerving to avoid an animal on the road. He phoned the police and waited for them to arrive.
Since 9 March 2018 the applicant has been employed as a construction worker. When giving evidence the applicant told the magistrate that, before then, he was a self-employed fencing contractor. His current employer is engaged in major civil construction work, particularly road works, and the applicant is required to work around the State, sometimes in rural or remote areas, between 6.45am and 5.30pm Monday to Friday. His job depends on his ability to drive. He is required to drive from his home at Derby to the area in which his employer is engaged, from his temporary accommodation to the work site, and around the work site each day. The result is that, to enable him to keep his job, the applicant needs a licence allowing him to drive to and from and in the course of his employment, each Monday between the very early hours and 6pm, between 6.30am and 6pm Tuesday to Thursday, and on Friday between 6.30am and 7.30pm. The evidence before the magistrate was that without a licence in those terms the applicant's employer will not employ him during the period of disqualification, but would keep his employment open for him.
The applicant owns his home which, he said, was worth $280,000 and was subject to a mortgage of about $125,000. Just over a year ago he purchased another rural property, 61 acres near Winnaleah, about 12 kilometres away from his home, which he intends to rehabilitate into a small beef farm. He paid $135,000 for the land and the rudimentary dwelling on it, and it is subject to a mortgage of around $86,000. He has some other smaller loans and a bill for installation of a power pole of $15,000 which he is paying off. The applicant's partner is not employed. There was no evidence about her capacity or opportunity for employment, or her ability to assist the applicant in some other income producing activity during the period of his disqualification.
The police prosecutor did not cross-examine the applicant and did not submit that the application should not be granted. In his reasons the learned magistrate said that he dealt with the application "on the basis that [six months without any income] would constitute severe and unusual hardship" but found it unnecessary to make a formal finding to that effect because he was not satisfied that grant of a restricted licence would not be contrary to the public interest. The principal factor in that determination was the applicant's driving record. The offence for which he was disqualified was his fifth under the RSAD Act:
· In 1990, when the applicant was 18, he drove as a first year driver with a reading of 0.12. He was fined and disqualified for 12 months;
· In 1994 he drove with a reading of 0.128. He was fined and disqualified for 16 months;
· In 1998 the applicant drove with a reading of 0.99, was fined and disqualified for 12 months;
· In 2007 the applicant drove with a reading of 0.137, was fined and disqualified for 16 months.
Following the 2007 disqualification, the applicant was granted a restricted licence. On 15 October 2007, five months after the licence was granted, he drove while disqualified. He was fined but it seems he was not further disqualified and he retained his restricted licence. On 15 May 2008 he breached the terms of the restricted licence again by "driving out of hours". He was fined but not disqualified. Between then and 2018 he did not commit any further alcohol related driving offences, although his record shows a series of six traffic regulation offences committed between 2009 and 2016. Before 2009 there were other traffic regulation offences of varying significance. When questioned by the magistrate about his record the applicant said that "it took me a while to grow up I must admit", but he assured the magistrate that "it wouldn't happen again" and his "world will fall to bits" if he cannot drive.
The notion of public interest covers a very wide range of factors: Lowe v Narracott [1987] TASSC 124. The magistrate correctly stated that the public interest includes maintenance of the full deterrent effect of disqualification and upholding the purpose of the legislation, to protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor: Hayes v Peterson [1972] Tas SR 86, at 89; In re Stokman [1978] Tas SR (NC) 4; Lowe v Mansfield [1988] TASSC 66; Steers v Registrar of Motor Vehicles [2000] TASSC 5 and Nunn v Brazendale [2001] TASSC 33, 33 MVR 561. As Zeeman J said in Davies v Deverell (1992) 1 Tas R 214 at 226:
"It has been established since In re Stokman [1978] Tas SR (NC) 4 (which has been followed in this Court on numerous occasions) that the maintenance of the full force and effect of orders of disqualification intended to have deterrent effect is a relevant consideration in relation to the public interest in this context. The clear legislative intent evinced by the Act is to treat the driving of motor vehicles by persons whose skill and judgment is adversely affected by the consumption of intoxicating liquor as a grave social evil to be visited with severe penalties. It is a necessary part of the achievement of that legislative intent that orders of disqualification imposed and required to be imposed under the Act are not perceived as often having little punitive effect because of the ease with which hardship licences may be obtained. In appropriate cases the public interest will require that the general and specific deterrent effect of an order of disqualification not be reduced by the granting of a restricted licence."
When determining the application the learned magistrate made specific reference to the decision of Tennent J in Morton v Scott [2016] TASSC 51, in which her Honour reviewed the legislation and the authorities and re-stated the principles to be applied. The learned magistrate took into account in the applicant's favour that:
· the reading was just over the statutory limit;
· the offence resulted from a misjudgment rather than a deliberate decision to flout the law;
· 11 years had elapsed between the most recent alcohol related driving offence and the new offence, and 10 years since the most recent breach offence.
In concluding that he was not satisfied that the grant of the application was not contrary to the public interest, his Honour gave reasons which included the following passage:
"However, a low reading remains an offence while the risk may be small, the risk exists in relation to a reading greater than .05, and while I accept it's a misjudgment, as I said, it remains an offence and the disqualification needs to have a deterrence not just from deliberate offending but offending which is the result of a misjudgment.
In accordance with the reasons of her Honour in Morton v Scott I also need to take account of the defendant's – the applicant's offending generally in relation to driving matters. He was disqualified as a result of demerit points in 1990 – that's a long time ago I accept but on that occasion he offended within a couple of months of regaining his license. He then in 2007 obtained a restricted license and within 10 days of obtaining that restricted license he incurred a speeding offence. He drove whilst disqualified notwithstanding that restricted license in 2008 and breached the conditions of that restricted license – sorry he drove whilst disqualified in 2007 and was convicted of that charge in 2008 and breached a condition of his restricted license in 2009. Aside from the Road Safety, Alcohol and Drug offences and the offending related to the restricted license on that occasion he has 25 traffic offences over a period of many years, I accept, when which he would have been driving, but nonetheless, that's a significant amount of offending.
This is his fourth offence under the Road Safety, Alcohol and Drugs Act in which he could have – and a fourth offence of exceeding the prescribed alcohol limit and while it is an offence at the very lower end of the scale for such offending, and there is a gap and those matters were no doubt taken into account when the fine and the minimum disqualification was imposed, notwithstanding the gaps there is persistent offending under the Road Safety, Alcohol and Drugs Act.
In my view taking account of all of those matters and notwithstanding the fact that the grant of the license is not opposed by the prosecution, I am not satisfied and it is for the applicant to satisfy me that it would not be contrary to the public interest to grant a restricted license. To put it the other way, in my view, of all the material that I've seen I remain of the view and I'm not satisfied to the contrary that the public interest would not enable me to grant the restricted license on this occasion and for that reason the application is dismissed."
Before this Court, counsel for the applicant submitted that it was open to the magistrate to secure the public interest by grant of the licence in the terms applied for, in combination with an extension of the period of disqualification. The terms of the proposed restricted licence limited the applicant to driving to work from his home on Monday and back on Friday, and to driving in his employment during the week, mostly on road work sites. It was submitted that the risk he posed could be further controlled by a condition requiring that he not drive with any alcohol in his body. The disqualification would still, it was submitted, have a punitive effect because the applicant could not drive on the weekend or other than in terms of the licence, thereby maintaining the deterrent effect of the sentence.
However, even if the submission advanced by the applicant is accepted, it is not enough to establish that it was open to the learned magistrate to determine the application in some other way. This is an appeal under the Justices Act 1959, s 107(4)(a). The applicant must show 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. The learned magistrate was wrong in one respect. The offence which led to the applicant's disqualification was not his fourth under the legislation, it was his fifth. That does not assist the applicant. The applicant does not point to any other specific factual or legal error in the magistrate's reasoning. It is not suggested that he took into account factors which ought not have affected his decision, or failed to take account of factors which ought to have done so. The substance of his contention is that the magistrate should have been satisfied that grant of the restricted driver licence was not contrary to the public interest. That contention alleges error of law in the exercise of the discretion and can only succeed if I am satisfied that the nature of the decision to refuse the licence is such as to demonstrate that in some way the exercise of the discretion has miscarried: Cranssen v The King (1936) 55 CLR 509 at 519-520; R v Tait (1976) 46 FLR 386 at 397-398; Harris v The Queen (1954) 90 CLR 652. Appellate intervention is only justified if the magistrate could not reasonably have failed to be satisfied that the grant of a restricted licence was not contrary to the public interest, and that he somehow misdirected himself when dealing with it.
There are many cases in which judges of this Court have found that it was unreasonable, on grounds of public interest, for magistrates to have granted a restricted licence to persons with a driving record not dissimilar to that of the applicant. Davies v Deverell is one such case. In that case Zeeman J reasoned, at 226:
"This was the fourth occasion upon which the respondent had been convicted of a breach or breaches of the Act. Only the minimum period of disqualification had been imposed. He previously had been granted the special privilege of being able to drive pursuant to the terms of a restricted licence. Plainly the learned magistrate was required to take into account the desirability of the disqualification having its full deterrent effect. He did not take it into account. His failure to take it into account vitiated the exercise of his discretion".
Counsel for the respondent submitted that in light of the principles expressed and applied in Davies v Deverell and similar cases as the basis for the conclusion that it was "plainly unreasonable" for the magistrate to grant a restricted licence, it could not be said that it was unreasonable in this case for the magistrate to refuse a licence to the applicant. That submission should be accepted. I see no reason to regard the discretion confided in the magistrate as improperly exercised. The conclusion he reached was one which was reasonably open to him. With allowance for the factors relied on by the applicant, the level of the reading, the circumstances of the offence, the break in offending and the heavy personal effect which loss of his licence will have, the magistrate was entitled to find that, in light of the applicant's history of offending under the RSAD Act, his breach of the terms of a restricted licence granted to him on an earlier occasion, and his otherwise poor driving record, grant of the licence was contrary to the public interest. Put more correctly, using the double negatives inherent in the statutory test, it was reasonably open to the magistrate to not be satisfied that the grant of the licence was not contrary to the public interest.
I would make one point about the submission that the reading is a "low" one. Even though the reading was just over the statutory limit, and the applicant gave evidence before the magistrate that he did not think he would be over the limit, it cannot be said that he posed no risk. The best that can be said is that the risk was not as high as it may have been had the reading been higher. Drink driving has long been recognised as a serious social problem and a major contributor to death and serious injury. Despite his repeated offending, the applicant chose to drive after having consumed alcohol. The level of alcohol in his body was in fact over the statutory limit. He was unexpectedly confronted by an animal on the road, which resulted in his vehicle leaving the road and colliding with a pole. In the absence of evidence, it cannot be accepted that the applicant's reaction time, proneness to error and capacity to meet to unexpected or emergency situations, such as the one he confronted, were not impaired to some extent by the presence of alcohol in his body at that level. Evidence of the effect on humans of the presence of alcohol at a particular level lies behind the determination of the statutory limit. In his reasons the learned magistrate correctly stated as much.
In the circumstances of this case, the magistrate was entitled to conclude that the need to maintain the punitive and deterrent effect of disqualification and protection of the safety of the public outweighed other considerations. The course he took was open to him. He did not err in the exercise of his function. The motion to review is dismissed.
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