Valarezo v Commissioner of Police, NSW Police Service [2003] NSWADT 244

CITATION: Valarezo v Commissioner of Police, NSW Police Service [2003] NSWADT 244 DIVISION: General Division APPLICANT PARTIES: John Charles Valarezo RESPONDENT Commissioner of Police, NSW Police Service FILE NUMBER: 033316 HEARING DATES: 11/11/03 SUBMISSIONS CLOSED: 11/11/2003 DATE OF DECISION: 11/11/2003

BEFORE: Montgomery S - Judicial Member APPLICATION: Driver's licence suspension - Road Transport (General) Act - driver's licence suspension MATTER FOR DECISION: Principal matter LEGISLATION CITED : Road Transport (General) Act 1999 CASES CITED: Arps - v - Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 DPP v England [1999] 2 VR 258 APPLICANT REPRESENTATION: In person RESPONDENT M Buchanan, solicitor ORDERS: 1 The decision of the Commissioner is affirmed

Background 1 This is an application under section 48 of the Road Transport (General) Act 1999 ("the Act"). The applicant, Mr John Valarezo, has asked the Tribunal to review a decision of a police officer, Senior Constable Bywater, to suspend Mr Valarezo's drivers licence. 2 Section 34(1) of the Act states that: "If a person is charged by a police officer with an offence under section 9(3) or (4), 15(4), 16 or 22(2) of the Road Transport (Safety and Traffic Management) Act 1999, the same or another police officer may, at any time within 48 hours after the person has been charged, give the person a suspension notice." 3 Mr Valarezo was given a suspension notice on 30 October 2003 after he refused to submit to a breath analysis. Mr Valarezo asserts that the request to undergo a breath analysis followed an illegal arrest. Applicable Legislation 4 The Tribunal has jurisdiction to determine this application under section 48 of the Act. That section, so far as it is relevant to this case, states that: "(1) A person aggrieved by any of the following decisions made in relation to the person may apply to the Administrative Decisions Tribunal for a review of the decision: (a) a decision of a police officer under section 34 to suspend the person's driver licence, … (2) An application for a review in respect of a decision referred to in subsection (1) (a) or (b) must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn." What can the Tribunal take into account? 5 Under s 63 of the Administrative Decisions Tribunal Act 1997 ("ADT Act"), the Tribunal can take into account any relevant factual material when making a decision. Section 63 of the ADT Act states in part: "(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision." 6 When deciding whether a decision by a police officer to suspend a person's driver's licence is the correct and preferable decision, the Tribunal is restricted in relation to the material it can take into account. Section 48(3) of the Act states that: "(3) Despite anything to the contrary in section 63 of the Administrative Decisions Tribunal Act 1997, in determining an application for a review of a decision referred to in subsection (1) (a) or (b), the Tribunal: (a) is not to vary or set aside a decision to suspend a driver licence or authority to drive unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and (b) is not, for the purposes of any such application, to take into account the circumstances of the offence with which the person making the application is charged." 7 Consequently the Tribunal must be satisfied that there are exceptional circumstances, not related to the circumstances of the offence, before varying or setting aside a decision to suspend a driver's licence. Mr Valarezo's evidence 8 Mr Valarezo was given a notice of suspension and confiscation of driver's licence on 30 October 2003. The Notice states: "On Thursday 30/10/2003 at 14.25 p.m. when required by Sen Con Phillip Bywater to submit to a breath analysis you refused to comply/failed to supply sufficient sample." 9 The Notice is signed by Mr Valarezo and witnessed by Constable Anthony Bell. Mr Valarezo stated that Constable Bell was the police officer who arrested him and that he has been personally acquainted with Constable Bell through Mr Valarezo's work as a solicitor, a current Local Court matter in which Mr Valarezo is involved and in which Constable Bell is the prosecuting officer, a previous Local Court matter in which Mr Valarezo was involved, and the fact that Mr Valarezo attended school and played football with Constable Bell's brothers. Mr Valarezo said that he and Constable Bell "don't see eye to eye" and that this was the motivation for Constable Bell's actions. 10 Mr Valarezo said that on 30 October 2003 he and Constable Bell were both appearing in a matter at Waverley Local Court. The matter was adjourned at about 11 am to resume at 2pm on the same day. During that adjournment Mr Valarezo retrieved his vehicle from where he had previously left it and drove to the Waverley Local Court. He was parked at the front of the Court House when Constable Bell approached him. Constable Bell arrested Mr Valarezo for an offence in relation to driving without a valid NSW driver's licence. Mr Valarezo said that he has not been charged with that offence. Mr Valarezo also said that he held a valid Qld driver's licence at the time of his arrest and that he showed the licence to Constable Bell. 11 Following Mr Valarezo's arrest Constable Bell then took him to the Waverley Police Station, which was located nearby. Mr Valarezo said that he was placed in custody and while there Constable Bell threatened to have him beaten by Constable Bell's brothers. Mr Valarezo was then asked to undergo a breath test. He refused to submit to the breath test as he was alleging false arrest and because Constable Bell had threatened him with violence. 12 Mr Valarezo asserts that the exceptional circumstances which are not circumstances of the offence and which therefore can be considered by this Tribunal include: · That Mr Valarezo and Constable Bell were attending a hearing that was unrelated to the offence; · That Mr Valarezo was not charged with any an offence in relation to driving whilst disqualified; · That Constable Bell's actions were motivated by personal vendetta against Mr Valarezo; and · The request that Mr Valarezo submit to a breath test was made after Mr Valarezo had been falsely arrested and after threats of violence had been made against him. 13 In addition to the events of 30 October 2003 referred to above, Mr Valarezo stated that he requires his driver's licence to be able to carry out his work as a solicitor. He said that he largely practices in the criminal law jurisdiction and that he needs to visit gaols as part of his work. He said that he is unable to do so by using public transport. He further stated that if he were unable to carry out his work he would be unable to service loans on two residential properties that he owns. His estranged wife occupies one property and his mother occupies the other. Mr Valarezo said that his mother receives a widow's pension and is unable to meet the loan repayments herself. If he is unable to carry out his work, and the loan repayments are not met, the bank may foreclose on the mortgage and his mother would then be forced out of the house. 14 Mr Valarezo also stated that he is involved in a roster for St Brigid's Church to convey elderly people to church. He requires his driver's licence to be able to carry out these duties. 15 Mr Valarezo submits that these are exceptional circumstances, that are not circumstances of the offence, which justify a lifting or variation of the suspension. The Commissioner's Case 16 Ms Buchanan appeared on behalf of the Commissioner and opposed Mr Valarezo's application. The Commissioner was given no details relating to the application prior to the hearing and was given no notice of Mr Valarezo's evidence. Consequently no evidence was available to either support or contradict Mr Valarezo's evidence. Ms Buchanan was given the opportunity to seek an adjournment so that she could prepare evidence however, given my findings this was not necessary. 17 Ms Buchanan submitted that Mr Valarezo had not identified any exceptional circumstances that could be considered by the Tribunal. She argued that the events to which Mr Valarezo referred that lead to his arrest and his subsequent refusal to submit to a breath test were not matters that could be taken into account because they are circumstances of the offence. The suspension of Mr Valarezo's licence should therefore stand. What constitutes exceptional circumstances? 18 In Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 the Deputy President of this Tribunal set out some principles to guide the Tribunal in considering what constitutes exceptional circumstances. In her reasons she referred to the Second Reading Speech of the Traffic (Road Safety) Amendment Bill in the NSW Legislative Assembly on the 21 November 1989 and the April 1989 Staysafe Committee report entitled Immediate and Certain Loss of Licence for Extreme Drink Driving. The Deputy President observed that the Staysafe Committee report related to a proposal that motorists having 0.15 gms of alcohol/100ml of blood should be immediately prohibited from driving. This measure was subsequently enacted and extended to mid range offences of between .08 and 0.15. A refusal to submit to a breath analysis incurs the same prohibition. In the Staysafe 13 Report at 4.19- 4.20 the following comments were made: "The committee considers that those for whom a licence is specially important have a special obligation to drive in accordance with drink drive laws. Loss of employment has been claimed as an exceptionally harsh penalty for those dependent on licences for their livelihood, but a US report (Wells-Parker and Cosby, 1988) indicates that unemployment does not significantly increase for those losing licences for drink-driving offences." 19 The Deputy President also observed that the loss of employment, convenience in commuting for those in remote areas or performing shift work and transporting people who are sick or disabled were not considered by the Committee to be exceptional circumstances. She stated at paragraphs 18 and 19 of her reasons: "The example used by the Committee at 4.17 of a motorist being stranded hundreds of kilometres from home when picked up for drink driving or of a person needing to transport another person in a life and death situation do not seem to me to be "the general run of cases". However, on the basis of material in the STAYSAFE report, I now agree that loss of employment should not be regarded as an exceptional circumstance. It is quite common for people to rely on their vehicles to earn a living, either because they need it to perform their job or because they cannot reach their place of employment by public transport. Mr Arps has not made out a case of exceptional circumstances in relation to his employment or in relation to the need to transport his wife to the doctor. There was no evidence that this was exceptional in any way. I would be more reluctant to come to the same view in circumstances where a person needed a licence to transport a person with a severe or unpredictable medical condition. Transporting children to and from activities is not an exceptional circumstance." 20 I agree with the views expressed by the Deputy President. In my view, the circumstances in relation to Mr Valarezo's employment or the need to assist his family are not exceptional. Similarly, the need to transport elderly people to church does not constitute exceptional circumstances. 21 Section 48(3)(b) of the Act states that the Tribunal is not to take into account the circumstances of the offence with which Mr Valarezo is charged. In determining Mr Valarezo's application it is necessary to consider the meaning of the expression "the circumstances of the offence". This expression is not defined in the Act. Some guidance in this task can be found by reference to criminal law authorities. In the Court of Appeal of Victoria decision in DPP v England [1999] 2 VR 258, Brooking JA, in a judgment with which Batt and Chernov JJA agreed, discussed relevant authorities in considering the question of "what are the circumstances of the offence" for the purpose of determining whether there were aggravating circumstances pointing towards greater severity of sentence. His honour stated at paragraphs 17 –35: "Aggravating circumstances point towards greater severity of sentence? May one look only to circumstances which, judged from the standpoint of strict contemporaneity, accompany the criminal act and at nothing which precedes or follows it? It is absurdly artificial to draw a line and limit the circumstances of the offence to those which existed in the period of time (which may be a single second) between the coming into existence of the first and last elements of the offence." … Common sense and moral sense, which are and must ever be the essential foundation of sentencing principles and practices, unite in rejecting the notion that "the circumstances of the offence", for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime. …The courts treat the phrases "circumstances of the offence" and "surrounding circumstances of the offence" as interchangeable: R. v. Boyd at 172; R. v. Teremoana (1990) 54 S.A.S.R. 30 at 36-37 and 50; R. v. De Simoni (1981) 147 CLR 383 at 396 per Wilson, J.; R. v. Newman & Turnbull [1997] 1 V.R. 146 at 152 per Winneke, P. These and similar phrases do not look to some clearly defined period of time. … What should be regarded as the circumstances of an offence is best left to the good sense of sentencing judges … As was said in the South Australian decisions mentioned earlier, what is a surrounding circumstance may be a question of degree." 22 In my view, a similar approach should be adopted for the purposes of the Act. It is absurdly artificial to draw a line and limit the circumstances of the offence to the first and last elements of the offence of refusing to submit to a breath analysis. What the circumstances of the offence are will ultimately be a question of fact to be determined by the Tribunal. 23 Mr Valarezo asserts that the events that he recounted provide an explanation for his refusal to submit to a breath analysis. They are matters that a court could take into account in determining the severity of any sentence that might be imposed. In my view, they are surrounding circumstances of the offence and if the views expressed in DPP v England are correct, then they would also be "circumstances of the offence" for the purposes of section 48(3) of the Act. I am therefore precluded from taking these matters into account in determining Mr Valarezo's application. 24 These considerations lead me to find that the Commissioner made the correct decision in suspending Mr Valarezo's licence and that decision is affirmed. Orders 1 The decision of the Commissioner is affirmed.