Impoundment and Exceptional Hardship Case Study
Location: Geelong Magistrates Court
Charges:
The client had been charged with driving whilst disqualified under s 30 of the Road Safety Act. As she had a previous charge of driving whilst disqualified, Victoria Police had brought an application for impoundment of her vehicle under s 84U of the Road Safety Act.
Impoundment
Victoria Police have the power under s 84U of the Road Safety Act (Impoundment) to apply for an order of impoundment or forfeiture of a motor vehicle if the relevant offence committed was committed within a 6-year-period of another relevant offence.
However, there is an exception to this if the prior offence is designated under the legislation as ‘tier 1’ offences, any subsequent ‘tier 1’ offence grants Victoria Police the power to seek such an order.
Unfortunately, in our client’s situation, driving whilst disqualified is such a designated offence, so despite her prior charge being over 6 years ago, Victoria Police still are able to proceed with the impoundment application.
Factual Background:
Our client was the sole carer of her elderly father who had numerous medical conditions, mobility issues and was legally blind. Her licence was suspended due to demerit points, and she drove to work after cancelling a shift the day prior to assist her sick father.
The client’s father was the one requiring the use of the car, as the client herself was able to take public transport to work.
Whilst she was suspended, the client had difficulty taking her father to his necessary medical appointments as they would need to use taxis to get there, or the assistance of neighbours, if the client was unable to make it. This was a financial burden and created difficulties with the client regarding her work schedule.
Result:
As the client’s main concern was her ability to assist her father, our main goals were ensuring that she, firstly retained her licence, and secondly, retained her vehicle.
These goals created a hurdle, as to be able to make an argument against the impoundment application based on exceptional hardship, the client’s licence must not be suspended for a period of longer than 3 months, as per the requirements in s 84Z in the Road Safety Act.
Submissions were made to the Court regarding her good driving history, and limited prior criminal charges, the only one being her relevant prior. She had cooperated with Victoria Police and made full admissions that corresponded with her instructions given to our office. She had also entered an early plea at the first mention date, which has saved the Court time and resources. The Court understood the client’s situation and accepted that she had only driven on this one occasion during her suspension. As such the Court decided not to further suspend her licence, but rather to hand down a $500.00 fine without a conviction.
As her licence was not suspended at all, we were able to make submissions against the impoundment of her vehicle.
Submissions were then made that the impoundment of the client’s vehicle would cause exceptional hardship not to herself, but to her father whom she cares for. He was not present to make the application, however letters from his doctor and other children were tendered to speak to his medical condition and the requirement of the client’s care.
These submissions pointed to the legislation indicating that hardship does not have to directly be to the person who owns or operates the vehicle, but anybody substantially affected by its removal.
Case law was handed up to the Court to demonstrate this point, a County Court decision of Toward v Slater [2014] VCC 1681. This case was a similar situation where the application was made on behalf of another person who used the vehicle to access medical treatment and care. This case equated the inability of a person who cannot attend their place of work after making reasonable enquiries to the inability of a person suffering chronic ill health unable to access medical treatment and care. It noted that a lack of accessibility to such medical appointments would be just as catastrophic as a breadwinner being unable to access their employment.
Submissions were then made to the clients’ father’s lack of accessibility without this mode of transportation would be dire considering his medical needs. It was further expressed that the client having access to this vehicle would not threaten the safety and wellbeing of the public due to her generally consistent driving record, and that restricting her access to the vehicle would not serve the public interest in preventing further offences as she was unlikely to return back to the Court on further offending.
Accordingly, the Court found that impounding the client’s vehicle would cause exceptional hardship to the client’s father and rejected the Police Prosecution’s application for impoundment of the vehicle.
If you are facing an impoundment application call our defence lawyers to assist you today.
