Rowe v Visser

[2000] TASSC 134

[2000] TASSC 134

CITATION:              Rowe v Visser [2000] TASSC 134

PARTIES:  ROWE, Brian Thomas
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 21/2000
DELIVERED ON:  14 September 2000
DELIVERED AT:  Launceston
HEARING DATES:  14 September 2000
JUDGMENT OF:  Blow J

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

Traffic Law - Offences - Alcohol and drug related offences - Tasmania - Driving with more than the prescribed concentration of alcohol in blood - Minimum penalty - Special circumstances.

Road Safety (Alcohol & Drugs) Act 1970 (Tas), s17(5).
Dellar v Crawford (1992) 62 A Crim R 171; Johnston v Davies (1992) 1 Tas R 183, followed.
Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
           Applicant:  C J Gibson
           Respondent:  P Sherriff
Solicitors:
           Applicant:  Trezise Partners
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2000] TASSC 134
Number of Paragraphs:  9

Serial No 134/2000
File No LCA 21/2000

BRIAN THOMAS ROWE v CLAAS VISSER

REASONS FOR JUDGMENT  BLOW J

(DELIVERED ORALLY)  14 September 2000

1. The applicant pleaded guilty to a charge of driving a motor vehicle whilst alcohol was present in his blood in a concentration of .185 grams per 100 millilitres.  His counsel submitted to the learned magistrate that, within the meaning of the Road Safety (Alcohol & Drugs) Act 1970, s17(5), there were special circumstances why the minimum period of disqualification specified in that subsection should not be imposed.  No submission was made in relation to the minimum fine.  The submission was rejected.  The learned magistrate imposed the applicable minimum penalty, a fine of $500 and 12 months' disqualification.  The applicant has moved for the review of that order on the basis that the learned magistrate erred in fact and in law in finding that there were no such special circumstances.

1. The applicant had no relevant prior convictions.  His counsel put to the learned magistrate a submission to the effect that it was relevant to the issue of special circumstances that he was 52 and had held a driver's licence since he was a young man.  The learned magistrate stopped her and said, "That doesn't go to special circumstances, but to mitigation".  He thereby erred in law.  The expression, "special circumstances" covers circumstances both of the offence and the offender.  See Dellar v Crawford (1992) 62 A Crim R 171 at 177 - 178 and Johnston v Davies (1992) 1 Tas R 183 at 189.

1. For there to be special circumstances, there must be something extraordinary, unusual or atypical: Dellar v Crawford (supra) at 177, Johnston v Davies (supra) at 189. Special circumstances must be clearly distinguishable from the general run of cases that Parliament had in mind when it provided for the penalty of disqualification: Davies v Kennedy 81/1992 (Underwood J); and Turner v Visser 93/1998 (Evans J).  Cases involving medical emergencies have been held to involve special circumstances, for example, Mazengarb v White B38/1993 (Crawford J) and Turner v Visser (supra). 

1. The wording of s17(5) indicates that Parliament envisaged that special circumstances would sometimes warrant a period of disqualification less than the normal minimum, whilst the normal minimum fine, or even a larger fine, would still be warranted.  The subsection refers to, "special circumstances why the minimum fine specified in the Table or the minimum period of disqualification specified in the Table should not be imposed". It goes on to provide that in such special circumstances, the Court may impose a lesser fine, or a lesser period of disqualification. It is significant that Parliament had in mind that cases warranting some period of disqualification could still fall within the scope of the subsection.  These aspects suggest that circumstances less extreme than those involving medical emergencies would still, in appropriate cases, fall within the scope of the subsection.

1. In this case, the applicant was found at the wheel of his car at about 11pm on a Friday night, not driving, but either asleep or unconscious.  His car was on the westbound lanes of the Bass Highway near the Prospect cloverleaf and was causing some obstruction.  A passing motorist called an ambulance.  After the ambulance arrived, the applicant woke up, drove off the travelled portion of the road, and parked in a stopping lane.  That was the only driving to which the charged related.  There was no controversy as to the facts put to the learned magistrate in mitigation.  It was put that the applicant usually had only two light beers on a Friday night, that this Friday night he had drunk a substantial amount, that he had rung his wife to collect him, that she was driving him to Westbury, that they had an argument, and that she stopped at about 9.30pm at the scene of the offence and walked off, leaving the applicant alone, drunk and unexpectedly in charge of the car, by the side of the highway in the dark.  The learned magistrate took the view that it was not unusual "that because of an argument or because of some other reason, a person who has originally not intended to drive at all finds himself in a position where he does."

1. But, in my view, this was a very unusual example of such a case, because of the following factors.  Firstly, the applicant was 52, with no relevant prior convictions and a habit of drinking only two light beers on a Friday night.  I infer that he was not the sort of person who was prone to getting drunk and finding himself in a difficult predicament.  Secondly, the applicant had been left in charge of a car unexpectedly, when drunk, on the side of an expressway.  Thirdly, he travelled only a very short distance and made the highway safer by doing so.  In my view, that combination of circumstances made this case unusual and atypical, and distinguishable from the general run of cases warranting disqualification.  I believe the learned magistrate was wrong to reject the submission as to special circumstances and had a discretion to impose a period of disqualification of less than 12 months. 

1. In my view, it is appropriate for the applicant to be disqualified, but for a period of less than 12 months.  It is unclear how he got himself into the situation where he was behind the wheel of the car on one or more of the westbound lanes of the Bass Highway.  He plainly should not have got behind the wheel of the car and so should not have been in that position in the first place.  However, bearing in mind the special circumstances that I have referred to, I think that a period of disqualification substantially less than the normal minimum is called for.  I take into account the fact that he could and should have asked the ambulance officer or the passing motorist to move the car for him.  I take into account that he has already been off the road for approximately one month [before a stay order was obtained].  I think in the circumstances disqualification for a further month is warranted.  I will postpone that as he is not here. 

1. I set aside the disqualification imposed by the learned magistrate and, in lieu of that, I order that the applicant be disqualified from holding or obtaining a driver's licence for a period of one month commencing on and including 16 September 2000.

1. I order that the respondent pay the applicant's costs of and incidental to the motion, to be taxed.