Manitzky v Ryan[2005] QDC 178

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from two orders made in the Magistrates Court at Brisbane on 14 September 2004 on a plea of guilty to an offence of driving a motor vehicle with a blood alcohol concentration between .05 percent and .15 percent contrary to s 79(2) Transport Operations (Road Use Management) Act 1995 (“TORUM”).^[1]The date of this offence was 23 July 2004.

2. [2]
   The first order appealed from is the sentence order of a fine of $800 and an order of disqualification for eight months. The second order appealed from is a refusal to grant the appellant a restricted (work) licence pursuant to s 87 TORUM.

3. [3]
   The essential facts placed before the Magistrates Court on sentence are as follows. The appellant, a Graham Reginald Manitzky, is a self-employed owner taxi driver. He normally drives the taxi Monday to Friday, working approximately 58 hours per week. The taxi is driven on the weekend by other drivers. After finishing work on the Friday (23 July 2004) he visited a hotel with a friend. He drove to and from the hotel in his private vehicle. After leaving the hotel he hit a parked Energex truck. The Energex vehicle was undamaged however his vehicle suffered substantial damage. He left the scene of the Energex truck incident and drove to a friend’s place. His taxi was at the friend’s place. He rested a number of hours at the friend’s place before setting off for his residence in the taxi. Although he was driving the taxi he was not working. During this journey he was stopped by the police. A later breath test established he had a blood alcohol concentration of .138 percent.

4. [4]
   The appellant is a married man of 53 years. His wife is employed by the Board of Teacher Education. He has worked fulltime as a taxi driver for approximately 13 years. He has no criminal convictions and no previous traffic convictions involving alcohol.

5. [5]
   The sentence order of $800 with a disqualification period of eight months is a standard sentence order for a blood alcohol reading between .13 percent and .14 percent where the offender is a holder of an open licence with no previous drink driving offences. The only attack on the length of the disqualification period was the assertion the period of eight months is manifestly excessive. During the appeal no attempt was made to substantiate the claim a period for eight months disqualification is manifestly excessive.

6. [6]
   At the appeal hearing it quickly became evident the main challenge to the sentence orders is that the magistrate wrongly refused to grant the appellant a restricted licence. Under s 87 TORUM the magistrate, when imposing the period of disqualification had a discretion to order he be issued with a restricted licence.^[2]A restricted licence, when issued, is limited to driving directly connected with “the means of earning the holder’s livelihood.”^[3]

7. [7]
   The appeal under s 222 Justices Act 1886 is by way of rehearing on the evidence before the magistrate and on any additional evidence placed before the court on appeal.^[4]

8. [8]
   In order to succeed therefore the appellant must demonstrate that, “having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”^[5]In carrying out that task it is necessary for the appellate court to bring its own judgment to bear on the question. In this particular case moreover the magistrate did not enjoy any particular advantage over me. The Magistrates Court is a notoriously busy court, and the hearing before the magistrate was obviously fairly brief. The available transcript for example contains three and a half pages of oral submissions and one and a half page decision.^[6]Unlike the magistrate I had the advantage of detailed  submissions by counsel.

9. [9]
   Section 87(1) TORUM, as I mentioned, contains the discretionary power to issue a restricted licence. Section 87(5)(a) sets out a general requirement that a restricted licence should only be granted if the court hearing the application is satisfied:

1. (i)
   that the applicant is a fit and proper person to hold a restricted licence, having regard to the safety of other road users and the public generally;  and

2. (ii)
   that a refusal would cause extreme hardship to the applicant by depriving him/her of the means of earning his/her livelihood.

10. [10]
    Section 87(5)(b), (c), (d), (da), (db), (e) and (f) sets out circumstances which operate as a bar to the issue of a restricted licence. Apart from the general requirement in s 87(5)(a) the appellant is not barred from the grant of a restricted licence.

11. [11]
    At the hearing before the magistrate (and before me) the parties agreed that extreme hardship was demonstrated on the material (s 87(5)(a)(ii)). I infer from the incomplete transcript the police prosecutor argued the appellant was not a fit and proper person to hold a restricted licence. In any event the magistrate concluded the appellant was not a fit and proper person to hold a restricted licence, and it is from that conclusion that the present appeal is brought.

12. [12]
    The question therefore arises as to what is meant by the term “a fit and proper person” in s 87(5)(a).

13. [13]
    The “fit and proper” criterion dates back to the fifth century, and its common law application to the 13^th century.^[7]Usually the term appears as an essential qualifying requirement for holding an office or for membership of a professional group. The term normally has connotations of honesty, or moral uprightness, and the possession of any necessary knowledge and ability. The protection of the public and the maintenance of public confidence in the particular profession or occupation may be elements in the term.^[8]As satisfaction of the fit and proper criterion is a requirement in a variety of contexts, necessarily the term must be construed as limited to the context in which it appears. In this case the section limits the fit and proper criterion to the safety of other road users and the public generally.^[9]The ability and knowledge to drive safely are therefore important, as is any demonstrated propensity for unsafe driving. In this case the magistrate was not satisfied the appellant was a fit person to hold a restricted licence because of his conduct in driving on the occasion charged (23 July 2004) in the light of his traffic history, and particularly in light of three speeding breaches incurred on 23 March 2004, 20 February 2004, and 25 January 2004. Each of these latter three breaches attracted three demerit points and a penalty of $150. The magistrate said she accepted the police prosecutor’s submission the appellant had a bad traffic record.

14. [14]
    The details of the offence demonstrate the appellant drove both his private vehicle and his taxicab with a relatively high blood alcohol concentration. At the time he was intercepted by the police he had a blood alcohol concentration of .138 percent, and had earlier driven into a parked Energex truck while driving his private motor vehicle.

15. [15]
    At the appeal Mr Andrew submitted the magistrate placed too much weight on the drink driving offence committed on 23 July 2004 and the appellant’s traffic history. Both matters are of course relevant when considering the appellant’s fitness to hold a restricted licence. The submission that too little or too much weight was placed on these factors means in this case that the appellant must demonstrate that the weight placed on these factors by the magistrate may have wrongly caused her to refuse the application.

16. [16]
    The appellant has been a taxi driver for approximately 13 years. He normally drives for about 58 hours a week. Presumably he possesses the ability and knowledge to drive safely and is in that sense fit to hold a restricted licence. Mr Andrew submitted the applicant’s traffic history should be compared to the traffic histories of other taxi drivers before concluding that it was a bad traffic history. Whether a bad traffic history or not, it does not reflect on the appellant’s capacity and skill as a driver, although it may reflect on a propensity to drive over the speed limit from time to time.

17. [17]
    The magistrate was presumably apprehensive the appellant might drink drive or drive recklessly if issued with a restricted licence. In submission before the magistrate it was said the appellant had not drunk alcohol between the date of the drink driving offence (23 July 2004) and the date of the application for a restricted licence (14 September 2004). Moreover it is relatively less likely that he would drink alcohol while working as a taxi driver. Although I understand the attitude adopted by the magistrate, and her apprehension the appellant might drink drive, or drive recklessly if given a restricted licence, two factors mitigate against that approach. The first is that the appellant is relatively less likely to drink alcohol while working as a taxi driver. The drink driving conviction is not work related, and he has not been convicted of any work related offence involving alcohol. The second is that he has not consumed any alcohol since the date of the drink driving offence (23 July 2004). This latter claim was not put in issue by the prosecution.

18. [18]
    An applicant for a restricted licence who is not barred from holding such a licence pursuant to s 87(5)(b), (c), (d), (da), (db), (e), or (f), and who satisfies the court that he is a fit person to hold a restricted licence (s 87(5)(a)(i)) and will suffer extreme hardship from the failure to obtain a restricted licence, may have a reasonable expectation of receiving a restricted licence. The section it must be noted allows a court granting a restricted licence to preserve the protective and punishment elements of a disqualification by extending the period of disqualification.^[10]In the present case for example it was open to the magistrate to double the length of disqualification and to grant a restricted licence for the work activities of the appellant during the extended period of disqualification. Such an order moderates the hardship of the disqualification order by allowing limited use of the licence while preserving the protective and punitive elements by extension of the  period of disqualification.

19. [19]
    The magistrate did not give any weight to the two mitigating factors and as a consequence placed undue weight on the drink driving offence and the appellant’s past traffic history. On balance I think the exercise of discretion in the section miscarried.

20. [20]
    Applying my own mind to the appropriate orders I note that six months have now passed since the order of disqualification. I have been told the appellant has not driven since the orders under appeal were made. In these circumstances if the appellant is prepared to confirm on affidavit he has not driven since 14 September 2004 and prepared to give an undertaking to the court not to drink alcohol during the currency of any restricted licence I am confident the correct course at this point is to allow the application for a restricted license. I am satisfied  of the matters set out in s 87(5)(a) and am prepared to exercise the discretion in the section and vary the original period of disqualification by extending it by two months and at the same time directing that he be issued with a restricted work licence for the remaining period of disqualification.

21. [21]
    Orders:

1. Appeal upheld.

2. The orders made in the Magistrates Court on 14 September 2004 are hereby varied in that –

1. (a)
   The period of disqualification is enlarged to 14 July 2005;

2. (b)
   By order directing that the appellant be issued with a restricted driver’s licence.  The restricted licence is subject to the following restrictions:

1. (i)
   the only vehicle that may be driven is a registered taxi cab number T41798; and

2. (ii)
   the said vehicle may only be driven while actively working as a taxi or directly returning home after completing a period of active work as a taxi.

3. That the Respondent pay the Appellant’s costs of the appeal fixed in the sum of $1,500.00. It is ordered the said costs be paid initially to the Registrar of the District Court at Brisbane within 30 days of today; and thereafter be transmitted by the Registrar to the Appellant.