Snoxall v Visser

[2002] TASSC 89

[2002] TASSC 89

CITATION:              Snoxall v Visser [2002] TASSC 89

PARTIES:  SNOXALL, Kerry Charles

v
VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 18/2002
DELIVERED ON:  16 October 2002
DELIVERED AT:  Launceston
HEARING DATE:  16 October 2002
JUDGMENT OF:  Evans J

CATCHWORDS:

Traffic Law - Offences - Alcohol and drug related offences - Tasmania - Other offences - Special circumstances - Whether applicant's mistaken belief as to and compliance with period of disqualification amounts to a special circumstance.

Road Safety (Alcohol and Drugs) Act1970 (Tas), ss18A, 17.
Dellar v Crawford (1992) 62 A Crim R 171, Henderson v Richardson (No 2) A12/1996, approved.
Aust Dig Traffic Law [80]

REPRESENTATION:

Counsel:
           Applicant:  D G Grey
           Respondent:  P Sheriff
Solicitors:
           Applicant:  Zeeman Kable & Page
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2002] TASSC 89
Number of paragraphs:  12

Serial No 89/2002
File No LCA 18/2002

KERRY CHARLES SNOXALL v CLAAS VISSER

REASONS FOR JUDGMENT  EVANS J

16 October 2002

1. Upon the applicant's plea of guilty to a charge that he drove a motor vehicle in a public street whilst alcohol was present in his blood in a concentration of .083 grams of alcohol in 100 millilitres of blood, he was fined $200, disqualified from holding or obtaining a driver's licence for a period of three months and ordered to pay costs, together with the levy fixed by the Victims of Crime Compensation Act.  He appeals against his disqualification from holding or obtaining a driver's licence.

1. On the day of the offence, the applicant was taken to Launceston police headquarters where he provided a breath analysis.  Upon it being established that the applicant's blood alcohol reading exceeded the prescribed limit, a traffic infringement notice was issued to him.  For the purposes of that notice, the penalty prescribed by the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s18A, for the applicant's offence was a fine of $200 and disqualification from holding or obtaining a driver's licence for a period of three months. The applicant handed his driver's licence to the police officer who gave the applicant the infringement notice. The applicant believed that he was thereupon disqualified from driving and he did not do so for the next three months. The prosecution informed the learned magistrate that the facts I have just enumerated were agreed. The learned magistrate was also informed that at the end of the three month period, the applicant re-applied for a driver's licence, which was duly issued to him.

1. The applicant was not in law disqualified from driving during the period that he abstained from doing so, as the effect of the Act, s18A(3) is that a period of disqualification pursuant to an infringement notice commences on the day the fine is paid. The applicant did not pay the fine as required by the infringement notice and in consequence the notice lapsed and the applicant was prosecuted on a complaint.

1. Pursuant to the Act, s17(3), subject to subs(5) of that section, a licence disqualification of three months was the minimum period of disqualification the learned magistrate could impose on the applicant for his offence. The Act, s17(5), relevantly provides:

"(5)Notwithstanding subsection (3), if a person who is convicted of an offence … satisfies the court which convicted the person that there are special circumstances why the minimum … period of disqualification specified … should not be imposed, the court may impose a lesser … period of disqualification."

1. Counsel for the applicant submitted to the learned magistrate that the applicant's service of what the applicant mistakenly understood to be a period of three months' disqualification from driving amounted to a special circumstance which warranted the learned magistrate not imposing a period of disqualification.  In the alternative, counsel submitted that any period of disqualification should be back dated.

1. The learned magistrate ruled that he had no power to back date any period of disqualification.  That ruling is consistent with the approach taken in Henderson v Richardson (No 2) A12/1996, Underwood J, and is not challenged on this appeal.  The learned magistrate also concluded that the applicant's mistaken service of a period of three months' disqualification could not be regarded as a special circumstance.  As to this, the learned magistrate said:

"I don't see that it can fall within special circumstances which are related to the offence of the offender.  This is related to events after the offence unconnected with a voluntary act of not driving.  I am bound to apply a three months' disqualification at the least.

…

The circumstances of the offender really refer to his background and circumstances.  And a voluntary action such as his in not driving wouldn't be captured by it."

1. Counsel for the applicant submits that the learned magistrate erred in concluding that he was not entitled to treat the applicant's mistaken service of a period of three months' disqualification from driving as a special circumstance for the purposes of the Act, s17(5).

1. It appears from the learned magistrate's comments that he recognised that the expression "special circumstances" cover circumstances both of the offence and the offender.  As to this being the law, see: Gela v Cochrane A26/1992 (Crawford J); Dellar v Crawford (1992) 62 A Crim R 171 (Zeeman J); Johnston v Davies (992) 1 Tas R 183 (Crawford J); and Rowe v Visser [2000] TASSC 134 (Blow J).

1. From what the learned magistrate said, it is not clear to me why he was of the view that a voluntary action of the applicant, such as his not driving in the mistaken belief that he had been disqualified from doing so, was not a circumstance of the applicant which might amount to a special circumstance.  Plainly it was a circumstance referable to the applicant; that it arose subsequent to the applicant's commission of the offence is of no consequence.  In my view, there is no temporal limit on when a relevant circumstance may arise.

1. The following passage from Dellar v Crawford (supra) is apposite:

"No artificial restrictions should be placed upon the types of matters which may constitute special circumstances.  It is impossible and undesirable to attempt to enumerate the circumstances which may constitute special circumstances.  Provided that they are extraordinary, unusual or atypical they may constitute special circumstances."

In the context of this appeal, the decision in Henderson v Richardson (No 2) (supra) is informative. In that case, Underwood J set aside a conviction for an offence under the Act for which the defendant had been disqualified from holding or obtaining a driver's licence. By the time the conviction was set aside, the defendant had been disqualified for about ten months. It was in effect put to Underwood J that it would be unfair to remit the complaint for rehearing as, if the defendant was again convicted, the magistrate would be obliged to impose the minimum disqualification period prescribed by the Act and could not pay regard to the ten months' disqualification the defendant had already served. Underwood J concluded otherwise and said, with reference to what may be special circumstances under the Act, s17(5):

"I have no doubt that a period of disqualification suffered pursuant to an order of conviction or penalty that is set aside on appellate review is capable of amounting to a special circumstance in the event of a magistrate or a court being consequentially required to re–impose penalty for the offence that was the subject matter of the successful appellate review."

1. I agree with Underwood J and am of the view that in this case the admitted fact that the applicant had mistakenly served a period of three months' disqualification was a matter which could amount to a special circumstance.  As the learned magistrate erred in concluding otherwise, the appeal is allowed and the penalty imposed on the applicant insofar as it included a licence disqualification, is set aside.

1. In respect of this offence, the applicant has mistakenly served a period of three months' licence disqualification and he has suffered a disqualification of about one month in respect of the penalty I have set aside.  In these circumstances, I consider it would be unreasonable to take a course which would involve reagitating the appropriateness of the imposition of a period of licence disqualification upon the applicant.