Morton v Scott
[2016] TASSC 51
•30 September 2016
[2016] TASSC 51
COURT: SUPREME COURT OF TASMANIA
CITATION: Morton v Scott [2016] TASSC 51
PARTIES: MORTON, Andrew (Senior Constable)
v
SCOTT, Alistair Charles Stuart
FILE NO: 1994/2016
DELIVERED ON: 30 September 2016
DELIVERED AT: Hobart
HEARING DATE: 21 September 2016
JUDGMENT OF: Tennent J
CATCHWORDS:
Traffic Law – Licensing of drivers – Tasmania – Generally – Restricted licence – Public interest – Need to maintain the deterrent effect of orders for disqualification – Relevance of prior convictions and prior successful applications for restricted licences.
Vehicle and Traffic Act 1999 (Tas), s 18.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 19(1B).
Lowe v Mansfield [1988] TASSC 66; Davies v Deverell (1992) 2 Tas R 214; Nunn v Brazendale [2001] TASSC 13, referred to.
Aust Dig Traffic Law [1056]
REPRESENTATION:
Counsel:
Applicant: S Thompson
Respondent: S Chopping
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Steven Chopping Barrister & Solicitor
Judgment Number: [2016] TASSC 51
Number of paragraphs: 22
Serial No 51/2016
File No 1994/2016
SENIOR CONSTABLE ANDREW MORTON
v ALISTAIR CHARLES STUART SCOTT
REASONS FOR JUDGMENT TENNENT J
30 September 2016
On 23 May 2016, the respondent was dealt with by Magistrate Webster in respect of one count of drive a motor vehicle while exceeding the prescribed alcohol limit contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the Act), s 6(1). The respondent was convicted, and fined $1,232. He was disqualified from driving for one year with effect from that date. The respondent had filed an application for a restricted licence prior to being dealt with, and that was adjourned for hearing to 3 June 2016. The hearing commenced that day, and was ultimately completed on 29 June. On that day the application was granted. An order was made in the following terms:
"Conditions and/or Restrictions:
1The applicant is permitted to drive his Nissan Navara Ute, registered number C85ZH or my Isuzu Truck, Registered number A80RK from his home to places at which he is required to attend in the course of his occupation as a builder, in the course of his occupation and to return to his home between 6.30am and 8.00pm Mondays to Saturdays inclusive.
All journeys are to be undertaken by the shortest most practicable route
The applicant is not to commit any moving offences against the Vehicle and Traffic Act or Regulations made thereunder
The applicant is not to be found driving the vehicle whilst there is a licenced driver present in the vehicle.
The applicant is not to drive whilst any alcohol or illicit drugs are present in his body
The applicant is to keep a log book in his motor vehicle at all times which is to be filled in before the commencement of any trip recording time of departure, destination, purpose of journey, and time of arrival
The applicant is to carry a copy of the restricted licence together with a copy of this authorisation at all times whilst driving and to produce same upon demand being made by any Police Officer or Authorised Officer so to do
Pursuant to Section 19(1)(B) [sic] of the Road Safety (Alcohol and Drugs) Act the period of disqualification to which this restricted licence relates shall be increased from 12 months to 18 months."
By the time the above order was made, the period of disqualification imposed on 23 May had been operating for five weeks and two days.
At the time the respondent was sentenced, he was serving a term of imprisonment imposed on 31 March 2016 in respect of charges of common assault, resist police, threaten police and use abusive language to a police officer. On that date, he was ordered to serve four months' imprisonment, two of which were suspended. He was also placed on probation.
The drink driving conviction on 23 May 2016 flowed from an incident which occurred on 6 December 2015. The respondent was apprehended driving with a breath alcohol level of .131. At the time he was aged 27 years. The applicant was born on 29 January 1988 and, assuming he obtained his licence at the age of 17, would have first had a licence in 2005. His record of prior convictions at the time of his December 2015 offending disclosed the following matters. For completeness, I have added two further matters which were dealt with prior to sentence, but after the December 2015 offending.
27/7/05 Turn left at no left turn sign
Drive without reasonable consideration for other road users
$110 fine and 2 demerit points
$80 fine27/7/05 Speeding $110 and 3 demerit points 14/12/05 Drive without reasonable consideration $80 15/12/05 Speeding $80 and 1 demerit point 27/3/06 Use abusive language to police and resist police Convictions recorded 24/12/06 Using mobile phone while driving $110 fine and 3 demerit points 5/3/07 Disturb public peace by fighting Conviction and 7(f) undertaking 28/4/07 Speeding $80 fine and 1 demerit point 2/5/07 Fail to comply with conditions of licence $150 fine 21/5/07 Disorderly conduct Conviction recorded 25/6/07 Use abusive language to police Conviction and 24 hours' community Service 5/7/07 Speeding $80 fine and 1 demerit point 27/7/07 Possess open container of liquor in public $100 fine 10/8/07 Speeding $80 fine and 1 demerit point 6/9/07 Licence disqualified for three months because of accumulation of demerit points 10/9/07 Disorderly conduct $150 fine 8/12/07 Speeding $110 fine and 3 demerit points 17/11/08 Drink driving (.079) (offence date 21/12/07) Fined and disqualified for 4 months from 21/12/07 3/5/09 Fail to comply with conditions of licence $150 fine 15/5/09 Threaten, resist and abuse police 56 hours' community service 24/5/09 Speeding $140 fine and 3 demerit points 8/7/09 Common assault Plea of guilty; 7(f) 2 years 27/12/09 Fail to comply with conditions of licence $150 fine 14/4/10 Minor drug offence and disorderly conduct $250 fine 24/4/10 Speeding $110 fine and 2 demerit points 21/7/10 Speeding $110 fine and 2 demerit points 30/7/10 Fail to comply with conditions of licence $150 fine 20/10/10 Drive without due care and attention $110 fine and 3 demerit points 20/10/10 Breach of 7(f) order made 8/7/09
Breach of PFVO, injure property and common assaultConvicted
Convictions and 77 hours'
community service
30/10/10 Speeding $450 fine and 5 demerit points 11/6/11 Speeding $150 fine and 3 demerit points 18/8/11 Breach of FVO Wholly suspended 4 weeks' jail 26/8/11 Application for restricted licence Granted 5/10/11 Common assault $750 fine 24/9/12 Cross line when not permitted $100 fine and 2 demerit points 15/10/12 Speeding $110 fine and 2 demerit points 26/12/12 Speeding $110 fine and 2 demerit points 7/1/13 Disorderly conduct $300 fine 28/1/13 Speeding $150 fine and 3 demerit points 12/2/13 Fail to comply with direction and resist Police $150 fine and 35 hour's community service 20/3/13 Speeding $110 fine and 2 demerit points 20/6/13 Breach of suspended sentence imposed 18/8/11 Application granted – no order 19/10/13 Possess open container of alcohol $130 fine 28/10/13 Urinating in public $280 fine 30/10/13 Speeding $150 fine and 3 demerit points 22/2/14 Speeding $150 fine and 3 demerit points 21/5/14 Restricted licence granted 12/10/14 Speeding $110 and 2 demerit points 15/1/16 Speeding $110 and 2 demerit points 31/3/16
Assault, resist, abuse and threaten police
4 months' jail (2 months suspended) and 12 months' Probation
The detail above and the respondent's evidence at the hearing of his application showed that, on 2 September 2005, the respondent lost his licence for the first time due to an accumulation of demerit points for a period of three months. Shortly after he got his licence back, he committed the offence of driving without reasonable consideration for other road users. The day after that, he was issued with a speeding ticket, and began accumulating demerit points again. On 2 May 2007, the respondent committed the offence of failing to comply with the conditions of his licence. Then again on 6 September 2007, the respondent lost his licence for three months as a result of an accumulation of demerit points. On 8 December 2007, that is within a few days of regaining his licence, the respondent committed another speeding offence and the offence of failing to comply with the conditions of a licence.
On 11 July 2008, the respondent lost his licence for the third time as a result of an accumulation of demerit points. Then, on 17 November 2008, the respondent was convicted of a drink driving offence which had occurred in December 2007, and disqualified from driving for four months with effect from the date of the offence. On 3 May 2009, 27 December 2009 and 30 July 2010, the respondent again committed the offence of failing to comply with the condition of a driver licence.
On 30 October 2010, after another speeding offence, the respondent accumulated too many demerit points. He faced a fourth disqualification for accumulation of points on 30 December 2010 but elected to enter, in effect, a good behaviour bond rather than serve the disqualification. During the period of that bond, the respondent could accumulate no more than one demerit point. The respondent breached the bond by committing a speeding offence on 11 June 2011 and accumulating three demerit points. As a consequence, he faced disqualification again. In the circumstances, the respondent sought a restricted licence and, on 26 August 2011, his application was granted. In April 2014, the respondent yet again faced disqualification for an accumulation of demerit points, and elected to enter a bond instead. If he accumulated more than one demerit point during the operative period of that bond, he faced disqualification again.
The respondent breached the bond, and applied again for a restricted licence. That application was granted on 21 May 2014. In October 2014, the respondent committed another speeding offence while the subject of the restricted licence. On 6 December 2015, the respondent was then intercepted in respect of the drink driving offence which has given rise to the current proceedings.
Therefore, at the time the respondent applied for the restricted licence in 2016, he:
·had been dealt with for speeding on 19 occasions between 2005 and 2016, the last being on 15 January 2016;
·had his driver licence suspended on three separate occasions as a consequence of an accumulation of demerit points, namely in 2005, 2007 and 2008;
·had faced disqualification as a result of an accumulation of demerit points on two further occasions in 2011 and 2014, but had elected to enter in effect a good behaviour bond for 12 months rather than serve the disqualification;
·had breached the terms of the two bonds he entered into, resulting in two applications for restricted licences;
·had lost his licence as a result of a drink driving conviction on 17 November 2008, although the period of disqualification of four months ran from December 2007; and
·had, on five occasions, committed the offence of failing to comply with the conditions of a driver licence.
The respondent's record of prior matters can only be described as a very poor one generally, and certainly a poor one as far as driving offences were concerned. It also showed a persistent flouting of the road rules for almost the entirety of the period the respondent had held a licence. It must be accepted, however, that no offending is shown between 12 October 2014 and 6 December 2015.
Notice to review
On 15 July 2016, the applicant filed a notice to review the order of the magistrate granting the application for a restricted licence. The grounds of review were as follows:
"1 The learned Magistrate erred in fact and/or in Law in granting the restricted driver licence to the respondent;
2 The learned Magistrate erred in fact and/or in Law in determining that it was not contrary to the public interest for the licence to be granted;
3 The learned Magistrate erred in fact and/or law in determining that there existed severe and unusual hardship suffered by the respondent if his application was refused."
The applicant abandoned ground 3, accepting that the respondent would suffer severe and unusual hardship from a financial point of view were the restricted licence not to have been granted. The focus of the review was on the issue of public interest.
Public interest
The Vehicle and Traffic Act 1999, s 18, provides for applications for restricted licences. Section 18(5) provides:
"(5) The court may make an order authorising the issue of a restricted driver licence 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."
The magistrate said about the issue of public interest:
"The real question in this case is whether or not it satisfies the public interest, whether or not the issue of the restricted driver's licence would be contrary to the public interest. The applicant is aged 32, I think in my
MR CHOPPING: 28 your Honour.
HIS HONOUR: 28, he hasn't committed any offences for the last six years. He's not alcohol dependant [sic], in fact, as I pointed out before, he does not have an extensive record of convictions for breaches of traffic laws involving alcohol, this is his second. His first offence was on the 17th of November 2008 with a low reading of point 079, of course that's over point 05 and this one, of course a far greater reading of point 131.
He's been disqualified in the past for points, accumulation of demerit points without belittling the significance of those convictions and the subsequent loss of points of Mr Chopping point out, they are administrative matters and the disqualifications are the natural consequences of accumulating the points. Of course, some people, such as taxi drivers and travelling salesmen and tradesmen are on the road constantly and have the opportunity of accumulating far more points than people that spend their time in the office.
His record does not strike me as particularly bad record, although as Mr Morton has analysed it, it becomes a more serious record in that he has had applications for restricted licences on at least three occasions. The public interest in maintaining the detriment effect of a licence disqualification has been emphasised in many cases, Lowe, Narracot, Davidson Everall, Brown v Burton, Nunn v Brazendale and I suppose I should point out Lane v Black although not quite the same authority as the Supreme Court's decision to which I'm bound by.
These cases are authority for the proposition that in appropriate case, the public interest will require the general specific deterrent effect of an order for disqualification not be reduced by the granting of a restricted licence. In this case, the applicant, aged 28, has had no convictions – the last relevant convictions for the last six years, his previous applications for restricted licences were for points and were, apart from the one breathalyser, of course, were points and were many years ago.
There is not a long history of breathalyser convictions and all the circumstances, although it is a matter of balance and it's close call, to use one of my former Magistrate's decision, I'm not, I'm satisfied it would not be against the public interest to grant a restricted licence, particularly, as I'm minded to make an extension of the period of disqualification."
His Honour, having determined that he would grant the application, went on to consider the Act, s 19(1B). That provides:
"(1B) If an order is made under section 18 of the Vehicle and Traffic Act 1999 in respect of a conviction for an offence under this Act, the Court may increase the period of disqualification from driving remaining at the time the order is made by an amount not exceeding the period so remaining."
In Davies v Deverell (1992) 2 Tas R 214, Zeeman J, when dealing with a review of a magistrate's decision to grant a restricted licence, said at 225:
"There is a positive onus cast upon an applicant for a restricted licence to satisfy a magistrate that the exercise of the powers would not be contrary to the public interest."
His Honour also however said the following:
"However, even if it can be said that the learned magistrate applied the correct evidentiary test, it seems to me that he took an unduly restrictive view of what is involved in the public interest referred to in the Traffic Act 1925, s36(4)(c). The only factor which the learned magistrate took into account was the degree of likelihood of the respondent putting the public at risk by driving a motor vehicle whilst his judgment was adversely affected by the consumption of intoxicating liquor. That certainly is one aspect of the public interest (see, eg, Davies v Townsend Serial No 16/1992).
It has been established since In re Stokman [1978] Tas SR (NC) 14 (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."
Underwood J (as he then was) said at [16]–[20] in Lowe v Mansfield [1988] TASSC 66:
"16 In Hayes v Peterson (supra) Neasey J examined the meaning of 'public interest' in s36(4)(c). His Honour's views were expressly adopted in Webb v Robertson, Chambers J, 1374. Those views encompassed these propositions:
1 Having regard to the tenor of the Act, primarily, the public interest is in the protection of the public from the danger created by those who drive motor vehicles whilst affected by liquor.
2 Relevant matters for consideration under 1 include –
(a)the likelihood of danger to the public if the order sought were granted;
(b)the effect the making of an order would have upon the particular and general deterrent effect created by the penalty of licence disqualification.
3 Relevant matters for consideration under 2 include –
(a)the nature and extent of the restrictions upon driving sought to be included in the order;
(b)the likelihood of the applicant driving whilst his judgment is impaired by liquor;
(c)the circumstances surrounding the commission of the offences and the previous convictions (if any) of the offender.
17 There are, as Neasey J observed (p89), no doubt other considerations relevant to the issue of public interest and it would be unwise to attempt to make an exhaustive list. However, the scope and purpose of the Road Safety (Alcohol and Drugs) Act is to provide protection to road users from the risk of injury and damage caused by those who are minded to drive whilst affected by the consumption of liquor. The public interest expressed in s36(4)(c) of the Traffic Act is primarily in the maintenance of that protection. A matter will only fall for consideration under s36(4)(c) upon an application made pursuant to the Road Safety (Alcohol and Drugs) Act, s19, if it is one which touches upon the provisions of or the scope and purpose of either Act.
18 The views in Hayes v Peterson were expressed prior to the introduction of the additional statutory restraints on the exercise of the discretion to make an order consequential on conviction for an offence against the provisions of the Road Safety (Alcohol and Drugs) Act 1970, s19.
19 The correctness of those views is reinforced by the enactment of those further restraints (Act No 9475). They are supported by the judgment of the Chief Justice in In re Stockman, 1778, which concerned an application made pursuant to the Traffic Act consequential upon an order for disqualification for breaches of that Act.
20 Thus, the prospect of unemployment and its consequences are relevant to the issue of severe and unusual hardship and are matters of legitimate general public concern. They are not relevant factors upon a consideration of the public interest on an application for an order authorising the grant of a 'restricted licence' following disqualification for a breach of the Road Safety (Alcohol and Drugs) Act."
In Nunn v Brazendale [2001] TASSC 33, Evans J canvassed the concept of public interest. His Honour said at [10]:
10 The learned magistrate was dealing with a repeat offender. The respondent's failure to change his ways was a clear indication that it was necessary in the public interest to deter him from re-offending. General and personal deterrence should have been at the forefront of the learned magistrate's mind. The public interest in maintaining the deterrent effect of a licence disqualification has been emphasised in many cases. In Lowe v Narracott B54/1987, Cosgrove J said at 3:
'… 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.'"
His Honour said further at [12] and [13]:
"12 In Brown v Burdon 88/1997, Underwood J said at 4:
'The Parliament of this State, by the Road Safety (Alcohol & Drugs) Act, has made it abundantly clear to people in the position of the respondent that penalties are required to have full personal and deterrent effect. There was no emergency or other compelling reason for the respondent to drive that night. In the full knowledge of the penalties he faced, he simply took the risk. In those circumstances and in the circumstances of the respondent's record of prior convictions, an order authorising the grant of a restricted licence, particularly of the breadth of the one in this case, is very plainly contrary to the public interest. It is against the public interest because it virtually puts at nought the personal deterrent effect of the order of suspension (a particularly important aspect of the sentencing process in this case) and very strongly weakens the general deterrent effect, the importance of which is reflected in the penalty provisions of the Act.'
Instances of it being held not to be in the public interest to grant an application for a restricted licence where the applicant had enjoyed a restricted licence on the occasion of a prior conviction are: Lowe v Narracott (supra), Driver v Darling A31/1991 and Davies v Keeling A109/1991.
13 Undeterred by the prior penalties imposed on him, the respondent, for no more imperative reason than his personal convenience, set off on a 10 kilometre drive over a country road when he was so affected by alcohol as to be in a state in which he acknowledged he would not have driven in the city. In the face of this conduct, the learned magistrate should not have concluded that it would not be contrary to the public interest to grant the respondent a restricted licence. The grant of that licence largely nullified the deterrent impact of the disqualification. That grant will be quashed. The period of the respondent's licence disqualification will be 18 months."
Discussion
His Honour commenced his reasons by saying that the respondent had not committed any offences for the last six years. While I accept that the respondent had not committed any offence under the Act during that period, he had committed a number of traffic and other offences during that period as is apparent from the material in [3] above. His Honour then went on to effectively draw a distinction between disqualifications for an accumulation of demerit points and disqualification for drink driving offences. He described the former as "administrative" matters, and the disqualifications being a natural consequence of an accumulation of points. The fact that demerit points are imposed administratively does not, in my view, detract from the fact that the applicant persistently breached road rules by speeding and breaching other requirements. On five occasions, he failed to comply with the conditions of his driver's licence. He continued to do so even after being apprehended in December 2015. He had also twice had the benefit of previous restricted licences.
The tenor of his Honour's reasons was clearly that the respondent had a limited drink driving history, his previous applications for restricted licences arose from an accumulation of demerit points, and that somehow meant they were not matters of great importance when considering the issue of public interest.
I accept that the respondent's drink driving history is limited. There is no evidence he has presented as a danger to other road users over the years by drinking and then driving. However, the safety of other road users is not the only consideration when dealing with the issue of public interest. The Court must consider the need to maintain the deterrent effect of a period of disqualification, and ensure that deterrent effect is not reduced by the grant of an application for a restricted licence. His Honour was alert to that need. However, in my view, he mischaracterised the respondent's driving history by saying that the respondent had had no convictions for the last six years, obviously confining that to convictions for drink driving, and describing, in almost dismissive terms, that the respondent's previous applications for restricted licences were "for points". With respect, the whole of the record of an offender, as it relates to driving particularly, is relevant to this type of application, and not simply the record relating to drink driving matters.
In my view his Honour, when considering whether the respondent had satisfied him that it would not be contrary to the public interest to grant the application, failed to properly take into account:
· The respondent's history of offending generally as it related to driving matters.
· The persistence of the respondent's offending over 11 years relating to driving matters.
· That the respondent had faced the loss of his driver licence on five occasions between 2005 and 2014 as a result of an accumulation of demerit points.
· That the respondent had twice entered into bonds and accepted an extra demerit point to avoid the immediate imposition of a periods of disqualification for the accumulation of demerit points and had on both occasions breached the bond.
· That the respondent had had two prior restricted licences (applied for following the bond breaches referred to above).
· That the respondent had on five occasions failed to comply with the terms of a driver licence.
His Honour further did not, in my view, give appropriate emphasis to the need to maintain the deterrent effect of a period of disqualification he imposed by granting the application on terms which allowed the respondent to drive two different vehicles, six days per week between the hours of 6.30am and 8pm,
"from his home to places at which he is required to attend in the course of his occupation as a builder, in the course of his occupation and to return to his home address".
The order made allowed the respondent to drive extensively, with a restriction that would be very difficult to monitor.
I am satisfied that his Honour's decision to grant the respondent's application for a restricted licence was plainly wrong. The review is upheld. The order made by the magistrate on 29 June 2016 whereby he granted the respondent's application for a restricted licence and made a consequential order increasing the period of disqualification imposed on 23 May 2016 is quashed.
I will hear counsel further as to whether it is appropriate to make any consequential orders relating to the period of disqualification.
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