CITATION: Bonham v Commissioner of Police, NSW Police [2005] NSWADT 43 DIVISION: General Division APPLICANT PARTIES: Gregory William Bonham RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 043173 HEARING DATES: 5/08/2004 SUBMISSIONS CLOSED: 08/05/2004 DATE OF DECISION: 03/02/2005 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 O'Kelly v Commissioner of Police, New South Wales Police Service [2000] NSWADT 43 APPLICANT REPRESENTATION: C Byrett, solicitor RESPONDENT A Arnott, solicitor ORDERS: ORDERS MADE 5/08/2004; The decision to suspend Mr Bonham's driver's licence is set aside REASONS FOR DECISION 1 Mr Bonham conducts a bricklaying business employing a number of staff on a number of sites in the Sydney and Wollongong areas. He is required to attend building sites to work and to quote on jobs and requires a vehicle to carry his tools to these sites. 2 In May 2004 he was charged with a high range PCA offence and his driver's licence was suspended. He has pleaded not guilty to the charge. Mr Bonham has applied to the Tribunal under section 48 of the Road Transport (General) Act 1999 ("the Act") for review of the decision to suspend his driver's licence. 3 The matter was finalised in August 2004 and brief reasons were given at that time. More detailed reasons have been requested and are now provided. 4 When deciding whether a decision 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. The Tribunal must be satisfied that there are exceptional circumstances before varying or setting aside a decision to suspend a driver's licence but it is not to take into account the circumstances of the offence with which the person making the application is charged. The Issue for determination 5 The issue to be determined is whether there are exceptional circumstances to warrant setting aside the decision to suspend Mr Bonham's driver's licence. The Commissioner's position 6 Mr Arnott for the Commissioner originally opposed the application however at the hearing on 5 August 2004 he indicated that the Commissioner consented to the lifting of the suspension. Mr Bonham's case 7 Mr Bryett has raised a number of issues on Mr Bonham's behalf and has made detailed submissions in relation to the factors that can and cannot be taken into account by the Tribunal. He has also undertaken a detailed analysis of the case law relating to this issue and made submissions with respect to the approach that should be adopted in matters of this kind where a plea of not guilty has been entered in relation to charges pending in the Local Court. 8 Mr Bryett has also referred to a number of reports that he contends are relevant. These include the Staysafe 13 Committee Report entitled Immediate and Certain Loss of Licence for Extreme Drink Driving published in April 1989; a 1988 report by Professors Elizabeth Parker-Wells and Pamela Cosby entitled Behavioural and Employment Consequences of Drivers Licence Suspension for Drinking Driving Offenders and the report of recent research in Western Australia The disqualified driver study -A Study of Factors Relevant to the Use of Licence Disqualification as an Effective Legal Sanction in Western Australia by Anna Ferrante, research fellow, for the Crime Research Centre of University of Western Australia published in September 2003. 9 In referring to these reports he has challenged the approach generally adopted by the Tribunal in these kinds of matters that have followed the decision of Deputy President Hennessy in Arps v Commissioner of Police, New South Wales Police Service [2000] NSWADT 35. In that matter the Deputy President placed strong reliance on the Staysafe 13 Committee Report. Mr Bryett submits that this reliance was inappropriate for several reasons. He argued that the Report is of no use in interpreting section 48 of the Act because it relates to earlier legislation. While he concedes that it contains several references to useful statistics, which could allow the Tribunal to be informed of factual matters, he submits that it otherwise is of questionable value and little weight should be given to it. 10 He asserts that the Report is unreliable, in relying on research that is unsafe to use, and inaccurate, by reference to innocent drivers having their licence reinstated within days. The facts of this matter demonstrate that this is not the case. While the report recommended that the period of licence suspension be subtracted from any related court imposed or automatic suspension, this is usually done by back dating any disqualification imposed. However, he argues, if the driver has successfully pleaded not guilty to a charge and no disqualification, the back dating process would likely be unavailable. Similarly, if the Court imposed a suspension for a period which is less than that already served, the result might be to increase the penalty paid by the driver for pleading not guilty. This is a factor that the Tribunal should take into account. 11 Mr Bonham has pleaded not guilty to the charge. As a consequence of this plea the hearing of the matter will be delayed for a significant period of time. The evidence is that a hearing date in the Local Court matter will not be given until at least November 2004. This will mean that at the time a hearing date is allocated Mr Bonham's driver's licence will have already been suspended for a period of 6 months. That is the period he would receive if he was convicted of mid-range PCA and suffered the minimum disqualification. If Mr Bonham is successful in the Local Court and no period of suspension is imposed, then he will have suffered a suspension that is not warranted. 12 Mr Bryett has submitted that this potential injustice could of itself constitute special circumstance. The Tribunal therefore should give consideration to this factor when considering the exercise of its discretion. 13 Mr Bryett further submitted that Mr Bonham will suffer hardship by his inability to move about with his tools (an essential requirement of his employment) and this will have a flow on effect to third parties namely his workers and families. He argued that where the applicant or a third person will suffer hardship because of exceptional personal or domestic circumstances, consideration should be given to reversing the decision to suspend the licence. 14 He referred to views expressed by O'Connor DCJ P in O'Kelly v Commissioner of Police, New South Wales Police Service [2000] NSWADT 43 where he said at paragraph 7: "7 On the other hand, I am concerned about the long delay in having the matter dealt with. The charge was laid on 3 January but is not listed to be dealt with until 5 June, which seems to me to be an extremely long delay and, as I indicated to Mr Barrie in my comments, I would not want to see a situation develop in the Tribunal where the period of the notice of suspension was approximating the possible period of any disqualification that might ultimately be imposed by the court, even though that period may be set off against the period of disqualification. It would lead to a situation where the role of the court ultimately determining the matter might be seen to be undermined." Findings 15 I agree with the views expressed by O'Connor DCJ P in O'Kelly. This case reflects the circumstances about which the President expressed concern. Mr Bonham's driver's licence was suspended in May 2004 and he has pleaded not guilty to the charge. At the time of hearing in August 2004 he had already been without his licence for a period of three months. It is conceivable that the Local Court will not dispose of the matter for several months. That being the case, it is possible that he will have suffered a longer suspension than would be imposed by the Court should he be convicted. If he is not convicted any suspension will be more that he should have suffered. 16 In my view, this is a factor that may be taken into account in deciding whether to vary or set aside a decision to suspend a driver's licence. In the circumstances I agree with Mr Bryett that these are exceptional circumstances that warrant setting aside of the decision to suspend Mr Bonham's driver's licence. Having formed this view I do not need to consider the other issues raised by Mr Bryett. Order The decision to suspend Mr Bonham's driver's licence is set aside. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.