Wade v Wynants and Road Transport Authority v Wade [2008] ACTSC 6

3. On the first charge her Honour recorded a conviction and sentenced the appellant to six months imprisonment, fully suspended, upon his signing an undertaking to comply with a good behaviour order for a period of two years (that is, until 8 August 2009). Additional conditions were that the appellant (1) give security of $1000; (2) accept supervision of and obey reasonable directions from the Director (now Chief Executive) of Corrective Services; and (3) perform 200 hours of community service.

4. On the second charge the appellant was sentenced to four months imprisonment, cumulative upon the previous sentence and also fully suspended upon a good behaviour order in the same terms as above. His license to drive a motor vehicle was disqualified for 12 months (that is, until 8 August 2008).

5. The filing of the Notice of Appeal on 22 August 2007 has suspended the above penalties until the conclusion of this appeal (see Magistrates Court Act 1930 s 216).

6. The facts, accepted by the appellant, disclosed that on 14 January 2007 at about 2.55am he was observed by police driving his blue Subaru WRX Station Wagon at an excessive speed towards police in East Row, Canberra City. He was directed to stop and, apparently, did so. The registration of the vehicle was current until 7 March 2007. He produced a current driver license (expiring 29 March 2011).

7. He tested positive for alcohol according to a screening test performed at 2.56am. The subsequent breath analysis returned a result of .088 g/100ml of blood at 3:25am.

8. Police observed that the defendant also showed clinical signs of intoxication. His speech was "fast and slurred". His breath revealed a strong odour of intoxicating liquor. He exhibited difficulty understanding instructions and he was "of unsteady balance". In brief, he was apparently unfit to control a motor vehicle.

9. When the appellant was lodged in the Watch House at 3:43am, following breath analysis, his wallet, on being searched, revealed a quantity of white powder in a small clip-seal bag. Analysis later revealed the powder to contain 0.053 grams of methylamphetamine and pseudoephedrine/ephodrine. The proportion of methylamphetamine was not estimated but it was clearly below the traffickable quantity of 2 grams (see Criminal Code Regulation 2005 Sch 1, Pt 1.1, Item 45).

10. On 25 July 2007 the appellant was accepted as a registrant in a sober driver program.

11. Simultaneously with the hearing of the plea of guilty on 9 August 2007, an application for authority to issue a restricted license was returnable before the court.

12. The appellant had an extensive criminal history including offences relating to exceeding a relevant blood alcohol limit, the last being an offence committed on 19 June 1999. There were three previous convictions relating to drug offences, the last being in July 1997, including three counts of supplying prohibited drugs.

13. At the time of sentencing the appellant was aged 31 years. He was in a stable relationship with two children. He worked as a personal support person with Mission Australia.

14. In the Pre-Sentence Report, his prior problematic alcohol and drug use was acknowledged, though he did not regard himself as having a problem.

15. He explained the current offences by referring to being at a party after gym training. He was the designated driver for persons at the party so did not drink at it. After he had taken them home and returned, the person giving the party offered him a drink. He consumed two pre-mixed bottles of vodka mixed drinks. He waited for an hour then felt he could drive.

16. With respect to the drug charge, he explained that the drug had been given to him some three years earlier to help him stay awake whilst he was working as a bar manager at the University of Canberra.

17. The pre-sentence reporter considered the driving offence was a "one-off" error of judgment despite the appellant's earlier record. The last such offence was, of course, about six years previous.

18. Her Honour did find the explanation offered for possession of the drugs as "a bit hard to believe." Ms McLaughlin, for the appellant, pointed out to her Honour that the appellant was a competitive body builder and subjected to frequent drug tests, none of which had proved positive.

19. On the question of the restricted license application, notwithstanding the absence of any serious traffic offence since 25 May 2001 and any prior offence since 18 July 2002 (then no third party and drive unregistered vehicle), her Honour commented, on the concern for re-offending expressed by the RTA:

...the last concern is my concern as well, because his history clearly shows a total disregard for court directions or orders and a restricted license is not an entitlement, it's a privilege. And so I guess I'd need some convincing.

20. Ms McMullan, for the informant, conceded the positive features of the break in offending and the positive Pre-Sentence Report but submitted that a suspended sentence, periodic detention or community service were appropriate sentencing options.

21. Ms Knox for the RTA reiterated the concern foreshadowed in the RTA's affidavit that there was a risk of re-offending and of disregarding conditions. She also asked, if her Honour was minded to authorise a restricted license to issue, that a condition be imposed forbidding alcohol consumption.

22. Her Honour, having heard Ms McLaughlin in reply, despite her scepticism concerning the appellant's drug possession clearly gave him the benefit of the doubt as to his prospects for continuing offence-free in relation to drinking and driving or other traffic offences.

23. Her Honour then imposed the sentences as detailed above.

24. In respect of the licence disqualification, her Honour granted an authorisation to the RTA to issue a restricted license until 8 August 2008. The RTA appeals against that decision.

25. Essentially, the appellant challenges the condition that he perform 200 hours of community service.

26. I have to say that I see no error in her Honour's approach. Despite the more than six year non-offending period, the appellant had five similar offences in the previous seven years. The break in offending warranted the suspension of the penalty of imprisonment, but the suggestion that some recompense to the community in respect of both offences be made was not unreasonable. I would dismiss the appeal against the sentence imposed.

27. This is a separate matter. Though predicated on a criminal penalty, the application made by the appellant for authority to issue a restricted license was a civil proceeding. He bore the onus of satisfying the Magistrates Court that the ameliorative provisions of ss 47 and 48 of the Road Transport (Driver Licensing) Regulation 2000 should be applied to him. They provide:

47 Circumstances in which court may give order authorising issue of restricted licence

(1) The Magistrates Court may make an order authorising the road transport authority to issue a restricted licence to a person only if the person establishes that there are exceptional circumstances justifying the issue of the licence.

(2) In deciding whether exceptional circumstances exist, the court must have regard to the following:

(a) the person's history of offences (including offences for which infringement notices were served on the person)--

(i) against the road transport legislation or a law of another jurisdiction corresponding to it (or to any provision of it); or

(ii) against another law of any jurisdiction in relation to the use of motor vehicles;

(b) any relevant rehabilitation or remedial action undertaken, or to be undertaken, by the person;

(c) the risk to the safety of other road users;

(d) the likelihood that the person, or anyone else affected by the outcome of the application, would suffer or incur any inconvenience or loss (actual or potential) that would be unreasonable if a restricted licence were not to be issued to the person;

(e) whether it would be unreasonable for the person to use an alternative means of transport, including public transport, if a restricted licence were not to be issued to the person;

(f) the likelihood of the person's health, or the health of a dependant of the person, suffering or being put at risk if a restricted licence were not to be issued to the person;

(g) the likelihood of the person complying with any conditions of a restricted licence.

Note An infringement notice includes a notice (however described) served on a person under the law of another jurisdiction that gives the person the option of paying an amount for an offence instead of being charged with the offence (see Act, dict, def infringement notice).

(3) Subsection (2) does not limit the matters to which the court may have regard.

48 Authority by court to issue restricted licence

(1) An order made by the Magistrates Court authorising the road transport authority to issue a restricted licence to a person must state--

(a) the class of driver licence for which the restricted licence may be issued; and

(b) the expiry date of the restricted licence.

(2) The class of driver licence stated by the court must be a class for which the person satisfies the eligibility requirements.

Note The eligibility requirements are set out in s 28.

(3) The expiry date stated by the court must be the date when, or a date before, the person's disqualification from holding or obtaining a driver licence ends.

(4) The court may include in the order conditions to which the restricted licence is to be subject.

(5) Without limiting subsection (4), the conditions may include conditions about any of the following matters:

(a) the times and days when the person may drive;

(b) the journeys that the person may undertake;

(c) the purposes for which the person may drive;

(d) the consumption of alcohol, or use of a drug, by the person.

28. The RTA's submission was that her Honour did not expressly state that "exceptional circumstances justifying the issue of the license" had been established. Thus, it was contended, the decision to authorise the issue of a restricted licence was erroneous.

29. It may be noted that Ms Knox, who then appeared for the RTA, had not expressly mentioned that requirement to her Honour. However, as I commented during argument, I would not assume that her Honour had overlooked it.

30. The matters to which the court should have regard in s 47(2) are an eclectic range of matters which, though neutral as to whether Mr Wade's case was attended by exceptional circumstances, would greatly militate against such a finding if found adversely to an applicant.

31. Indeed all considerations other than (d), (e) and (f) seem to me to fall into that category. The ultimate decision is discretionary, balancing the potentially negative factors (a), (b), (c) and (g) against the possible conclusion that, by reason of the matters arising from (d), (e) and/or (f), it would create unreasonable or undue suffering or loss to the applicant or a dependant, to refuse the application.

32. The assumption is that, generally, persons disqualified from holding a driver licence will cope with that circumstance without loss of employment or damage to their or their dependants' health. That capacity to cope would include use of public transport.

33. In this case the appellant had deposed that his employment required his availability 8am to 6pm as core hours but also availability for extra hours to 7.30pm. The nature of the work was, he deposed:

I am required to drive to visit client's (sic) at their homes because their personal circumstances particularly their mental state needs mean they can't visit me at my office. I also need to drive clients to appointments with ACT Corrective Services, to their medical or counselling appointments, to Court for court appearances, and rehabilitation and detoxification programs.

34. The bus route to which he had access, he deposed, would not enable him to arrive at work before 9.30am. It plainly would not have enabled him to perform his duties whilst at work. He needed to allow 30 minutes travelling time to and from work.

35. His assertions as to the requirements of his work was supported by a letter from his team leader at Mission Australia.

36. Clearly, the services provided to clients of Mission Australia was of high importance and considerable community value. It was, in my view, clearly open to her Honour to find that s 47(2)(d) was satisfied and that no alternative was reasonably available as contemplated by s 47(2)(e). Thus it would be unreasonable not to have granted the restricted license authorisation. That would satisfy s 47(1) unless one or other of the considerations (a), (b), (c) or (g) so militated against that consideration that the application ought not to be granted.

37. These matters, given the history of offences, late rehabilitation efforts, though it was a "one-off" matter not engaging that factor strongly, the risk to road-users and non-compliance with past orders, legitimately caused her Honour to hesitate as to whether the appellant's application should have been granted, as she did, but I cannot say that she was wrong in the circumstances to consider that those negative factors did not preclude the grant of an authorisation otherwise properly justified. Indeed, I consider her decision to have been a proper one in the circumstances.

38. To be "exceptional", the circumstances in question must be out of the usual or ordinary course. The precise scope of such circumstances must depend on the legislative intent and context. This may be gleaned from the comments of Hedigan J in Kent v Wilson [2000] VSC 98 as approved in R v Steggall (2005) A Crim R 402, [12]-[16].

39. The use of the phrase "exceptional circumstances" in s 47 and the factors to be considered in s 47(2) make it plain that a starting point is the need to avoid disproportionate consequences to the offender or his or her dependants. Such a consequence would usually be out of the usual ordinary or anticipated course. Even so, a justification for a restricted license may be denied by reference to, for example, risk to other road users. So Connolly J noted in Hammond v RTA [2006] ACTSC 125. It follows that whilst the appellant's appeal against sentence should be dismissed, so also should that of the RTA against the grant of authority to the RTA to issue a restricted licence to the appellant.

40. I will hear the parties as to any consequential orders, including costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the appellant (SCA 71/07): Legal Aid Office (ACT)

Counsel for the respondent (SCA 71/07): Mr J Lawton

Solicitor for the respondent (SCA 71/07): ACT Director of Public Prosecutions

Counsel for the appellant (SCA 76/07): Mr S Whybrow

Solicitor for the appellant (SCA 76/07): ACT Government Solicitor

Solicitor for the respondent (SCA 76/07): Legal Aid Office (ACT)