‘Missing’ motorist’s fine halved

Press, 1 July 1983, Page 7

‘Missing’ motorist’s fine halved

A travelling salesman taken by a traffic officer to Transport House after returning a positive breath screening test left the building through a window before an evidential breath test could be administered, Mr Justice Holland was told in the High Court. Brent Naylor, a salesman, had earlier been fined the maximum of $2OO and had his driver’s licence cancelled for six months when he pleaded guilty in the District Court to a charge that having been required by a traffic officer to accompany him to undergo an evidential breath or blood test he failed to remain until the test was carried out.

Naylor appealed against that sentence in the High Court. He was represented by Mr P. H. B. Hall, and Mr D. J. L. Saunders appeared for the Crown. His Honour held that the maximum fine was inappropriate and he halved the fine to $lOO.

On December 27 Naylor was stopped by a traffic officer because of his driving on a one-way street. His speech was slurred and he returned a positive breathscreening test. Mr Hall said that the maximum sentence was not called for and the offence had not involved the driving of a motor-vehicle. Naylor had simply panicked. When the traffic officer stopped him Naylor had used an oral mouth spray and the officer had told him that would not do him any good because the spray contained alcohol and would make him give a higher reading. That was why Nay-

lor had “decamped” from Transport House when he got the chance. It could hardly have been a more innocuous flight. There were no calls for him to stop or pursuit. The cancellation of Naylor’s driver’s licence for six months was a threat to his job, Mr Hall said.

Mr Justice Holland said that when Naylor was taken to Transport House he said that he wanted to contact his solicitor and was given a telephone book. The traffic officer left him alone in the room and Naylor took the lift to the ground floor and got out through a window.

Naylor was not discovered that night but next morning he returned to Transport House and said that he had panicked.

The amount of the fine and period of disqualification did not surprise him, said his Honour, but what did was that the charge Naylor admitted and the more common offence of failing to accompany a traffic officer had such a small maximum fine of $2OO in these days of inflation.

He was also surprised that the Transport Act which was generally amended at least twice a year had not been altered to increase the maximum fine and to provide a mandatory disqualification period similar to that in breath and blood alcohol offences.

He accepted what Mr Hall had said that the failing to accompany or remain gave a traffic officer the right of arrest. But a person who deliberately and illegally ensured that he was not able to undergo the test indicated that he would be in excess of the limit and the average mortal would consider that he should merit the same penalties that would have been incurred if the test had been carried out.

“Having said that, I am satisfied that this offence was certainly not one of the worst of its kind and, accordingly, no grounds exist for the maximum fine to be

imposed,” his Honour said. It was not for the courts to legislate. The courts were given a discretion for punishment by Parliament, which ranged from the maximum imposed by Parliament down to a discharge. “That discretion must be applied judicially and it, accordingly, follows that the maximum penalty could only be imposed where the Court was satisfied that the offence was as bad as it could possibly be,” said his Honour.

Accordingly,. he was of the view that the maximum fine was inappropriate and the appeal had to be allowed in that regard.

He had been troubled over the disqualification from driving. There were very good reasons in many cases why mandatory sentences should not be provided.

No matter how much Parliament tried it could not envisage all possible events and in most cases it was desirable for the Court to have a discretion.

In the Transport Act, however, there were many offences in which the discretion had been substanially controlled. He wondered whether in the circumstances an offence of this nature where Parliament had not seen fit to make disqualification from driving mandatory, as it had for a large number of offences, which was not anywhere near the worst of its kind, was such that it warranted the disqualification from driving. There were good reasons for the courts to be left with a discretion and he was satisfied that this was an offence where disqualification should be imposed, notwithstanding the fact that Parliament had not so laid down.

There might be special cases where the failure to accompany or remain with a traffic officer might be such that it did not warrant disqualification, but this case had not been shown to be one of them, his Honour said.