Victoria Police v Peter Butterworth (Magistrate Smith, Shepparton Magistrates Court, 21 October 2013, reported in Shepparton News, 23 October 2013 at p. 8)

Facts

The defendant was a 66 year old man who lived at the town of Picola. On 9 August 2013 he and his wife attended a function in a hotel at Barmah, some 9 miles distant. He arranged accommodation in the area so as not to need to drive after drinking.

The defendant’s wife had previously suffered four heart attacks and required constant medication but had accidentally left her medication at their home. No taxi service was available in the town, which was also outside of mobile phone coverage. He decided to drive to get the medication. While driving he was pulled over by police and ultimately found to have a blood alcohol reading of 0.133 (the maximum allowed under the law is 0.05).

Trial

Mr Butterworth pleaded guilty to drink driving. His lawyer submitted that the defendant’s wife’s medical needs and the fact that she was dependent on him needed to be taken into account.

The court noted that the defendant had a poor driving record which included convictions for drink driving and imprisonment for driving while disqualified. His Honour observed that the defendant had endangered himself as well as other road users.

Outcome

The defendant was sentenced to three months’ imprisonment, one month to be served immediately and the balance suspended for two years. His driver’s license was cancelled for 26 months (1).

Observation

It will be interesting to observe whether an appellate court will consider issues of necessity or spousal obligation as going towards guilt or only towards penalty. On one hand, arguably the defendant was obliged to protect his wife’s wellbeing and could best do that by leaving her at the Hotel with other people rather than by sending her on the journey to get her medication alone (2). This duty is perhaps fortified by comparison with the general lack of a duty towards non-family member associates (3) or strangers (4).

Notes

(1) An appeal has been lodged and the defendant has been bailed while it proceeds.

(2) Consider R v Russell [1933] VLR 59 (Vic., 1932)

(3) People v Beardsley, 113 NW 1128 (Mich., 1907); Vanvalkenberg v Northern Navigation Co, 30 OLR 142 (Ont., 1913); State v Willoughby, 294 SE 2d 407 (NC App., 1982).

(4) Zelenko v Gimbel Bros Inc, 287 NYS 134 (NY Sup. Ct., 1935)