Nunn v Brazendale
[2001] TASSC 33
•28 March 2001
[2001] TASSC 33
CITATION: Nunn v Brazendale [2001] TASSC 33
PARTIES: NUNN, Adrian
v
BRAZENDALE, Neil Andrew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 113/2000
DELIVERED ON: 28 March 2001
DELIVERED AT: Hobart
HEARING DATE: 19 March 2001
JUDGMENT OF: Evans J
CATCHWORDS:
Traffic Law - Licensing of drivers - Tasmania - Generally - Restricted licence - Relevance of prior convictions to the questions of deterrence and the public interest.
Road Safety (Alcohol and Drugs) Act1970 (Tas), ss6(1) and 13(5).
Lowe v Narracott B54/1987; Davies v Deverell (1992) 1 Tas R 214; Brown v Burdon 88/1997, followed.
Driver v Darling A31/1991; Davies v Keeling A109/1991, referred to.
Aust Dig Traffic Law [25]
REPRESENTATION:
Counsel:
Applicant: K Brown
Respondent: No appearance
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: No appearance
Judgment Number: [2001] TASSC 33
Number of paragraphs: 13
Serial No 33/2001
File No LCA 113/2000
ADRIAN NUNN v NEIL ANDREW BRAZENDALE
REASONS FOR JUDGMENT EVANS J
28 March 2001
Upon his plea of guilty, the respondent was convicted in the Court of Petty Sessions of breaching the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1). He was fined $800 and disqualified from holding or obtaining a driver's licence for 12 months. The respondent thereupon successfully applied for a restricted licence. Upon granting that application, the learned magistrate extended the period of the respondent's disqualification to 18 months.
The applicant seeks a review of the penalties on the ground that they were manifestly inadequate and a review of the grant of a restricted licence on the ground that the learned magistrate erred in being satisfied that the grant was not contrary to the public interest.
On the night of the offence, the respondent visited his sister at Bracknell where he consumed about six bottles of beer over a five hour period. At about 11.30pm he left his sister's residence to drive home to Liffey, a journey of about 10 kilometres. In the course of that journey, he was stopped by police and underwent a breath analysis which returned a reading of a blood alcohol concentration of 0.118 grams of alcohol per 100 millilitres of blood. The respondent informed the learned magistrate that the road he was driving on when apprehended was a country road which had very little traffic on it. Whilst he said he did not realise how much alcohol he had consumed, he said, with reference to his condition, that he certainly would not have driven through the city.
At the time of the hearing, the respondent was 33 years of age. His record of prior convictions read as follows:
"traffic infringement notice no 37149 offence date 26/06/1987
speeding between 15 to 24kph above limit $60 (2 demerit points)
launceston cps date of court 31/08/1989
exceed .05% (.113% 13/07/1989) fined $220 costs $16.10 driver's licence disqualified 5 months. probation period 21 days.
launceston cps date of court 25/09/1989
restricted licence granted
traffic infringement notice no s06122 offence date 22/06/1993
speeding between 15 to 24kph above limit $80 (2 demerit points.)
traffic infringement notice n0 310656 offence date 11/12/1993
obscured number plates $50
westbury cps date of court 18/08/1994
complaint no 18461/94
exceed .05% (.147% 07/05/1994) fined $1000 costs $22.
driver's licence disqualified 18 months. postponed 28 days.
launceston cps date of court 29/06/1995
complaint no 18461/94
restricted licence granted
traffic infringement notice no w42233 offence date 03/06/2000
exceed speed limit by 15 to 22 km/h $110 (3 demerit points.)"
I will first deal with the issue of the adequacy of the penalties initially imposed on the respondent by the learned magistrate. Where a sentence of imprisonment is not imposed, subject to the special circumstances exception provided for by the Act, s13(5), the range fixed by the Act for the mandatory penalties to be imposed on a subsequent offender whose blood alcohol concentration was between 0.1 and 0.15 are:
· a fine of between $800 and $4,000; and
· a period of licence disqualification of between 12 months and 36 months.
The learned magistrate imposed the minimum fine of $800 and the minimum period of disqualification of 12 months. The applicant submits the imposition of these penalties was manifestly inadequate. Mitigatory matters before the learned magistrate were evidence that the offence occurred on a country road where there was little traffic and the absence of any evidence to suggest that the manner of the respondent's driving had appeared to be dangerous. A matter which the learned magistrate remarked upon when sentencing the respondent was the major impact a licence disqualification would have on him. The respondent needed a driver's licence in order to carry out his employment and to drive to and from his residence at Liffey. As to the gravity of the respondent's conduct, it was noteworthy that this was his third s6(1) offence in 11 years and he had no urgent need to drive on the night of his offence. It was incumbent upon the learned magistrate to impose penalties upon the respondent which reflected these matters.
The learned magistrate quite properly chose not to imprison the respondent. In consequence, she was obliged to impose a licence disqualification and a fine. Of these penalties, in almost all cases, the most meaningful penalty is a licence disqualification. A disqualification seriously punishes an offender and has an immediate and on-going effect on his or her lifestyle. The risk of a disqualification significantly influences driver behaviour. It is a penalty which deters both the offender and the community. In order to mark the gravity of the matters I have referred to, it was necessary for the learned magistrate to disqualify the respondent for more than the minimum period. His offence was not at the lower end of the range of offences covered by the mandatory sentencing jurisdiction the learned magistrate was exercising. A disqualification for 18 months would have been sufficient to reflect the matters to which I have adverted. I will substitute that penalty for the disqualification of 12 months imposed by the learned magistrate prior to her consideration of the respondent's application for a restricted licence. The period of the respondent's disqualification being increased, I am unpersuaded that the imposition of a minimum fine of $800 is manifestly inadequate. Disqualification is the primary deterrent and no purpose is served by imposing an increased fine on an offender whose financial circumstances have been jeopardised by a disqualification.
As already mentioned, the learned magistrate subsequently granted the respondent a restricted licence. Upon the material put before her, the learned magistrate was satisfied that unless a restricted licence was granted, the respondent would lose his employment and, in that event, his prospects of obtaining similar employment were non-existent. The learned magistrate was satisfied that this amounted to real and unusual hardship. That finding is not challenged by the applicant.
The applicant contends that the learned magistrate erred in concluding, as she was required to do before granting the respondent's application, that the grant "would not be contrary to the public interest"; Traffic Act 1925, s36(4)(c). The applicant submits that in making that finding the learned magistrate gave inadequate weight to the circumstance that on the two prior occasions upon which the respondent has been disqualified for breaching s6(1) he received a restricted licence. When announcing her reasons for granting the licence, the learned magistrate observed that to grant a third restricted licence would be unusual, but concluded that it was appropriate as the respondent was someone who was ordinarily responsible and he was aware that he was very fortunate to receive a third restricted licence. In recognition of the public interest, the learned magistrate increased the period of the respondent's disqualification from 12 months to 18 months pursuant to the Traffic Act, s19(1)(B).
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."
In Davies v Deverell (1992) 1 Tas R 214, Zeeman J said at 226:
"It has been established since In re Stokman [1978] Tas SR 218 (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."
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.
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.
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