Tonnet v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 42

CITATION:	Tonnet -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 42
DIVISION:	General Division
PARTIES:	APPLICANT Samantha Tonnet RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003021
HEARING DATES:	01/02/00
SUBMISSIONS CLOSED:	02/01/2000
DATE OF DECISION:	02/01/2000
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Road Transport (General) Act - driver's licence suspension - Driver's licence suspension
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Road Transport (General) Act 1999
CASES CITED:	White -v- The Commissioner of Police, New South Police Service [2000] NSWADT 9
REPRESENTATION:	APPLICANT In person RESPONDENT Commissioner of Police, New South Wales Police Service
ORDERS:	1. Decision affirmed.

Delivered Ex Tempore

Reasons for Decision

1 I have before me an application for a review of the issuance of a suspension notice pursuant to s 34 of the Road Transport (General) Act 1999 in respect of an alleged offence under the Road Transport (Safety and Traffic Management) Act 1999. The notice was issued to Ms Tonnet, the applicant, on 16 January 2000 following a breath analysis reading of 0.08. The charge has been listed for hearing at Hornsby Local Court on 16 February 2000.

2 The Tribunal may set aside or vary a notice of suspension having regard to the principles enunciated by the Parliament and laid down in s 48 of the Road Transport (General) Act 1999. The relevant provision is s 48(3) which states that the Tribunal “is not to vary or set aside a decision to suspend a driver licence unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of suspension and is not, for the purposes of any such application, to take into account the circumstances of the offence with which the person making the application is charged”.

3 Inevitably, people who receive notices of suspension of driving will be able to point to some degree of inconvenience in respect of the management of their personal lives or care for their needs, so it would seem that the fact of inconvenience arising from suspension is not enough to justify the Tribunal varying a suspension.

4 The distinction between mere inconvenience and exceptional circumstances is explored in the first decision of the Tribunal in relation to this jurisdiction, which is a new jurisdiction: White v The Commissioner of Police, NSW Police Service [2000] NSWADT 9 (Hennessy DP).

5 The applicant is a separated mother with two young children, one of whom needs to get to school two days a week. That child, a boy, is four years old and is attending pre-school. The applicant lives at Cherrybrook and the pre-school is approximately ten kilometres away at Dural and I accept her statement made from the Bar table that there is no bus service that could be used in that area. It is an area of Sydney which is, as I understand it, not well serviced by bus transport. I note that she has had to turn to her mother-in-law for assistance over the last three weeks in order to get the child to pre-school, but that arrangement has not been able to be continued upon the return to work of her mother-in-law, so she faces the difficult situation of having to either keep the child away from school or incur taxi fares which I suspect would add up to a significant amount per week. I also accept that she has other needs associated with the management of the family to use a car to go shopping and the like. The inconvenience that she faces is short-term in the sense that the matter will be dealt with finally by a court in fifteen days’ time. I think that is a factor one has to take into account in assessing the difference between mere inconvenience and inconvenience of a degree that amounts to exceptional circumstances.

6 Deputy President Hennessy, in her decision, did mention that issues to do with the care or management of others may be relevant in forming the view that a set of circumstances amounts to exceptional circumstances. Unlike the case she had before her, this case does have that element where the mother is basically saying that she needs to be able to drive her car in circumstances where she is separated and there are no other adults easily to turn to in order to enable the four year old to attend schooling at pre-school. So there is some element in this case of one of the factors to which Deputy President Hennessy refers. But it seems to me that these are domestic circumstances that are not unusual in at least those parts of Sydney where people are heavily dependent on car transport.

7 The legislature has made it clear that driving with amounts of alcohol greater than the prescribed amount is a serious matter and has brought in effectively a mandatory period of disqualification for that type of conduct. That policy applies to those using cars in situations where there are no satisfactory alternatives.

8 The position, as I see it, is that this is not a case of exceptional circumstances, although I acknowledge that the applicant’s circumstances have been made quite difficult.

9 In my view, a major factor militating against ordering a stay is that the applicant has to deal with this problem only for another two weeks and then the matter will be decided one way or the other. Either she will be disqualified for a further five months, that time being the mandatory minimum - unless there is some greater time imposed - or have the benefit of a s 556A ruling. But in the absence of any indication that special consideration may apply it is not appropriate for me to anticipate the possibility that she may be dealt with relatively leniently. I think I should proceed on the assumption that it is likely that the minimum disqualification will be imposed.

10 My view today is that the circumstances are not sufficiently difficult as to warrant any intervention by the Tribunal. I am largely governed in forming that view by the fact that the matter will be dealt with relatively quickly. The application is refused and I will return the exhibits.