Paul Keith Clearihan v Jeffrey Clyde East Sca [1989] ACTSC 37 (2 August 1989)

SUPREME COURT OF THE ACT

PAUL KEITH CLEARIHAN v. JEFFREY CLYDE EAST
S.C.A. No. 32 of 1988
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Appeal - appeal against severity of penalty imposed by Magistrate on drink-driving charge - appellant held belief he had consumed light beer only - whether Magistrate took into account appellant's belief - offence occurred within period of five years from a previous conviction - effect of s.32 Motor Traffic (Alcohol and Drugs) Act 1977 - whether Magistrate gave sufficient weight to fact five year period had near expired - s.556A Crimes Act 1900 (NSW).

HEARING

CANBERRA
2:8:1989

ORDER

The appeal be upheld and the conviction and orders of the Magistrate be set aside.

Without proceeding to conviction, the appellant be discharged upon his entering into a recognizance within 48 hours self in the sum of $5,000 without surety to be of good behaviour for a period of two years conditioned as follows:
a) That he refrain from driving a motor vehicle at any time during

the period of three months commencing today.
b) That during the period of the recognizance he accept the
supervision of the Probation and Parole Service and for that purpose
present himself within a period of seven days to the office of
Director of Adult Corrective Services and it is recommended that
during the period of the recognizance the appellant be required to
present himself regularly at meetings of Alcoholics Anonymous, the
ACT Drug and Alcohol Service and similar organizations, there to
participate and assist in their work of alcohol rehabilitation and
counselling.

The recognizance may be taken before a Justice of the Peace.

The appellant pay the respondent's costs.

DECISION

This is an appeal against penalty imposed by a Magistrate on 24 May 1988 when the appellant pleaded guilty to a charge of driving with the prescribed content of alcohol on 21 January 1988. The breath analysis reading was .11. There was apparently nothing remarkable about the appellant's manner of driving. Perhaps he was stopped for the purpose of a random check.

2. The penalty imposed by the Magistrate was a fine of $1,500, in default imprisonment for sixty days and in addition the appellant's driving licence was cancelled and he was disqualified from holding or obtaining a driving licence unless and until otherwise ordered.

3. As the learned Magistrate pointed out in his remarks on penalty, the appellant at the time of the offence had a substantial record of driving offences, including six convictions for speeding and one for driving at a speed dangerous, all occurring between 1974 and 1976. He had no further traffic matters until 1983 when on 4 March he was convicted in the Canberra Magistrates Court of driving with the prescribed content of alcohol. He was fined $200, his driving licence was suspended for three months and it was recommended that he be issued with a special licence to permit him to drive from Monday to Friday between 8.45 a.m. and 5.30 p.m.

4. In 1979 and 1980 in New South Wales charges of assault were found proved but dismissed under the provisions of s.556A of the Crimes Act 1900. It is remarkable that the appellant has already had the benefit of that section on two occasions in the past, because Mr. Byrne, who appeared on his behalf in the appeal, asked that the appellant yet again have the benefit of that section so that a conviction not be recorded against him in respect of the offence now under consideration.

5. There are some other curious features of the case. The matters that Mr. Byrne raises on behalf of the appellant in mitigation might, on a proper view of the law, provide a defence to the charge, if it were submitted that the appellant had an honest and reasonable but mistaken view of the facts which, if true, would have afforded him a defence. On the other hand, it is by no means clear that such a belief would provide a defence to a charge of driving with the prescribed content of alcohol. In any event, the plea of guilty was accepted by the Magistrate, and, although I express no concluded view on the point, it is too late now for the plea of guilty to be rejected and for the Court to insist upon a plea of not guilty being entered.

6. The belief which, it is submitted, was entertained by the appellant at the time of the offence was that he thought that during the whole of the evening in question he had been drinking light beer whereas it turned out that during the latter stage of the evening he had been drinking beer of a heavier or standard alcohol content (about twice the strength of light beer). The appellant gave evidence that if he had known that the beverage offered was not light beer then he would have refused to drink it, or alternatively, if he had discovered after drinking but before driving that it had not been light beer then he would not have driven. That evidence was unchallenged.

7. Indeed the whole of the evidence of the appellant and his witnesses was unchallenged and uncontradicted. According to the tenor of the remarks of the Magistrate, his Worship accepted that evidence. It was to the following effect. Since the conviction on 4 March 1983 of driving with the prescribed content of alcohol the appellant has made a habit of drinking nothing but light beer. He is an habitual customer at a bar called the Red Door in the Travelodge Motel in Civic. On the night in question he was with a group of other persons. They spent the night seated at a table taking it in turns to buy drinks. They were so well known to the staff that there was no need to place any verbal order for their drinks. When the time came for a member of the group to stand a round of drinks he simply made some sort of hand signal to a member of the bar staff and the drinks would be delivered to the table, each member receiving the drink of his customary choice. The system worked well during the earlier part of the evening and the appellant was served light beer in accordance with the usual custom. However, at about 8.30 p.m. there was a change of bar staff. The person who went off duty was well acquainted with the appellant's drinking habits, but the person who came on duty was not so well acquainted. She sought to be briefed by her predecessor on what the customers drank, but for reasons which are not clear, she did not understand that the appellant's requirement was light beer. In this state of misapprehension she served the appellant's group with at least three rounds prior to the appellant leaving the premises at about 11 p.m. In each of those rounds of drinks she served the appellant with what she described as "the regular" or "the super" instead of light beer.

8. Evidence that the appellant's custom was to drink light beer only was given by himself, by a drinking companion and by the manager of the motel. As I have already said, the Magistrate by his remarks seems to have accepted that evidence, which was neither contradicted nor challenged in cross-examination. However, the learned Magistrate did not state that he found as a fact that the appellant believed that he had been drinking light beer. Indeed the Magistrate's remarks seem to indicate that he regarded the appellant's drinking companion and the manager of the motel as character witnesses only and not as witnesses to extenuating facts upon which the appellant sought to rely.

9. It was further submitted that the fine of $1,500 was manifestly excessive when considered in conjunction with the cancellation of the appellant's driving licence. The Magistrate correctly perceived that the effect of s.25 of the Motor Traffic (Alcohol and Drugs) Act 1977 was that upon conviction the appellant had to be regarded as a previous offender under the provisions of that Act, because the offence in question occurred within a period of five years from restoration of his licence following the previous conviction for the same offence of driving with the prescribed content of alcohol. It was submitted that, on the one hand on the matter of cancellation of the driving licence, it was not to the point that the five year period had almost expired at the date of the offence on 21 January 1989, yet on the other hand, the imminence of the expiry of the period was relevant to the quantum of the fine, and that the Magistrate gave no, or insufficient weight to the latter factor.

10. Bearing in mind that the maximum fine is $2,000, I think that the imposition of the fine of $1,500 over and above the disqualification is strongly suggestive that the Magistrate did not take into account the appellant's belief that he had been drinking light beer only and that he was not driving with the prescribed content of alcohol. I think that the amount of the fine is further suggestive of the Magistrate not giving sufficient weight to the fact that the five year period had almost expired. In these circumstances it is appropriate for this Court to substitute its own view of what was an appropriate penalty.

11. Offences of drinking and driving are of course serious and very serious when repeated by the same offender. However, in this particular case I think that the appellant's practice of drinking light beer and his ignorance of having consumed standard beer are extenuating circumstances which justify the application of the provisions of s.556A of the Crimes Act (once it is recognized that the cancellation provisions of s.32 will apply if there is a conviction.) In my view, cancellation is too drastic a penalty in the circumstances of the present case and the present offender. He is now 33 years of age. His work is in the motor vehicle trade. I pay what I regard as proper attention to the several speeding offences which were more than ten years ago and to the previous drink driving offence. However, apart from the matter now under consideration, he appears to have made strong and successful efforts to lead a law-abiding life. There is no doubt a view that he is flirting with danger by engaging in long drinking bouts with his less inhibited companions, even though he makes it his custom to restrict his consumption to light beer. The present case shows that he is incapable of telling the difference between ordinary beer and light beer and until he can do so he would be well advised to stop drinking beer altogether if he is going to drive a motor vehicle. Accordingly, it is imperative, in my view, that the penalty to be imposed should include an element not only of general deterrence but of personal deterrence and denunciation. Fortunately, the provisions of s.556A provide the flexibility to impose such a penalty without recording a conviction.

12. I had in mind the imposition of a community services order but in the end decided that the strictness of such an order is not necessary in the present case. The appellant and his witnesses have presented him as an example of one who has learned from his experiences and except on this unfortunate occasion has been able to overcome any tendency towards addiction to alcohol, particularly as it relates to driving and as one who appreciates in particular the grave social dangers associated with drinking and driving. He will no doubt appreciate that danger all the more as a result of this case. In this regard it would be of great benefit to the community if he could share his experiences with other persons who need assistance and counselling and even persuasion on these matters.

13. I had in mind also to impose a monetary penalty, but as I propose, in the extraordinary circumstances of the case, to order the appellant to pay the respondent's costs of the appeal, I refrain from taking that course.

14. The appeal is upheld and the conviction and orders of the magistrate set aside.

15. The offence is found proved but without proceeding to conviction the appellant is discharged upon his entering into a recognizance within 48 hours self in the sum of $5,000 without surety to be of good behaviour for a period of two years conditioned as follows:

1. That he refrain from driving a motor vehicle at any
time during the period of three months commencing
today.
2. That during the period of the recognizance he accept
the supervision of the Probation and Parole Service and
for that purpose present himself within a period of
seven days to the office of Director of Adult
Corrective Services. I recommend that during the
period of the recognizance the appellant be required to
present himself regularly at meetings of Alcoholics
Anonymous, the ACT Drug and Alcohol Service and similar
organizations, there to participate and assist in their
work of alcohol rehabilitation and counselling.

16. The recognizance may be taken before a Justice of the Peace.

17. I order the appellant to pay the respondent's costs.