Appellant v Respondent

Appellant v Respondent - [2007] VSC 153 - VSC 2007 case summary — Zoe

[10]

"50AAA Direction to impose alcohol interlock condition

(1) This section applies if--

(a) a person was disqualified under section 50 from obtaining a driver licence or permit because he or she was convicted or found guilty of an offence under section 49(1)(a) (other than an offence involving only drugs) or under section 49(1)(b), (c), (d), (e), (f) or (g); and

(b) the offence was not an accompanying driver offence; and

(c) the person makes an application under section 50(4) for an order as to the issue of a driver licence or permit; and

(d) the court considers it appropriate to make the order.

(2) If the offence--

(a) was a first offence; and

(b) in the case of an offence under section 49(1)(b), (f) or (g), the concentration of alcohol--

(i) in the person's blood at the relevant time was 0·15 grams or more per 100 millilitres of blood; or

(ii) in the person's breath at the relevant time was 0·15 grams or more per 210 litres of exhaled air--

as the case requires--

on making the order, the court may direct the Corporation that it can only grant the person a driver licence or permit that is subject to a condition that the person must only drive a motor vehicle with an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by such a supplier.

Note: For "approved alcohol interlock" and "approved alcohol interlock supplier", see section 3(1).

(3) Subject to sub-section (3A), if the offence was not a first offence--

(a) despite section 50(4A) and (4B), the person is not required to obtain, and the court is not required to have regard to, a report referred to in section 50(4B)(a); and

(b) on making the order, the court must direct the Corporation that it can only grant the person a driver licence or permit that is subject to a condition that the person must only drive a motor vehicle with an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by such a supplier.

(3A) Despite sub-section (3), if--

(a) the offence was not a first offence; and

(b) the person was disqualified under section 50 from obtaining a driver licence or permit on or before the commencement of section 10 of the Road Safety (Alcohol Interlocks) Act 2002--

sub-section (3)(a) has no application to the offence and, on making the order, the court may direct the Corporation that it can only grant the person a driver licence or permit that is subject to a condition that the person must only drive a motor vehicle with an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by such a supplier.

(4) For the purposes of this section, in determining whether an offence referred to in sub-section (1)(a) was or was not a first offence, any previous conviction or finding of guilt of the person of an offence under section 49(1)(a) (involving only drugs) or of an offence under section 49(1)(ba), (bb), (h) or (i) is to be disregarded, despite section 48(2)."

[11]

9 It is clear from s 50AAA(1) that the section which gives the magistrate the power to direct the imposition of an alcohol interlock condition, does so only where the Court has considered it appropriate to make an order under s 50(4) for the issue of a driver licence or permit. In the subsequent sub-sections, the power to direct that the grant of the licence be subject to condition only arises on the making of the order that the licence be granted. Thus the issue of whether to require an alcohol interlock condition is treated as a question separate from the issue whether to order the grant of a licence.

10 One can well understand that Parliament would not have wanted the possibility of an alcohol interlock condition to be considered by the Magistrates' Court when determining whether to direct the Authority to grant the person a licence. Plainly it would be desirable for the latter decision to be made solely on the basis of the history of the individual since the offence and whether it would be appropriate to make an order for the licence to be granted independently of whether there are any devices or techniques which could monitor that individual's behaviour while driving with a licence and provide some protection to the community as a result. Approaching the order for the grant of a licence independently of the consideration of the condition has the effect that the magistrate will need to be persuaded that the particular applicant has demonstrated that the risks and problems that existed at the time of the commission of the offence and the conviction have been sufficiently addressed by the applicant.

11 It seems to me, therefore, that the question of whether an alcohol interlock condition should be imposed is not one that is to be considered at the time the decision is made to order that the licence be granted. It is a matter to be taken up once the magistrate is satisfied that an order granting a licence should be made. In those circumstances the two parts of the final order are plainly severable. The order sought by the appellant to set aside that part of the order relating to the imposition of the condition can be made without setting aside the order that a licence be granted. The order sought appears to me to be the appropriate order.[2]

12 The other issue on which there was debate before me was the appropriate order for costs. Counsel for the appellant submitted that the costs should follow the event and that the respondent should pay the appellant's costs of the appeal. Counsel for the respondent, however, submitted that an order should only be made for portion of the appellant's costs because the appellant had a much cheaper and, in many ways, more effective and efficient mode of appeal available pursuant to s 50AAC of the Road Safety Act 1986:

[13]

13 Counsel for the respondent submitted that a proportion only of the costs should be allowed, such portion to cover what would have been the costs if the right to appeal under s.50AAC to the County Court had been exercised.

14 This is not the occasion to provide a definitive answer about the precise limits of the right of appeal given under s 50AAC. It is clear, however, that in choosing which right of appeal to follow, there is uncertainty.

15 It was common ground that in the present case the order imposing the condition was erroneously made under s 50AAA(3)(b). The right of appeal in respect of such a condition is limited by s 50AAC(b) to the period specified if that period is more than a minimum period set out in s 50AAB(3)(b). When counsel for the appellant argued that in those circumstances there was no effective right of appeal for the appellant under s 50AAC, counsel for the respondent argued in reply that when an appeal has been brought pursuant to s 50AAC(1)(b), it comes before the County Court under s 83 of the Magistrates' Court Act 1989. Under that procedure, the entire order has to be set aside and therefore the s 83 appeal was at large and not limited by the wording of s 50AAC(1)(b).

16 This debate raises an interesting question of construction of the provisions. A strong argument can, I suggest, be put that the specific provisions of s 50AAC impose limits on the general width of the right to appeal against sentence under s 83 of the Magistrates' Court Act 1989. There is a further possible problem and that is the definition of a sentencing order under s 83 of the Magistrates' Court Act 1989 which might, but for s 50AAC, prevent an appeal being brought in respect of an alcohol interlock condition. The issue is accompanied by sufficient doubt, in my view, to justify the appellant's decision to exercise the right of appeal to this Court, a right as to which there is no doubt. In my view, it was also justified because the primary position taken by the appellant was that the imposition of the condition was vitiated by an error of law.

17 It seems to me that the appellant was entirely justified in coming to this Court and should be awarded his costs against the defendant.

18 I will hear further submissions about the precise orders that should be made.

At a glance

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Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (24)