ANDERSON -v- PANKHURST [2012] WASC 287 (1 August 2012)

3 The matter was then dealt with in the Northam Magistrates Court on 25 May 2009. The appellant did not appear on that day and was not represented. The magistrate noted that the appellant had prior convictions for driving under the influence of alcohol and in consequence, he was liable to a higher penalty for this offence. The relevant penalty provision, being s 64AB(2)(c), requires the court to order permanent disqualification where there is a third or subsequent relevant offence, in addition to a monetary penalty or imprisonment. The magistrate imposed a fine of $2,000 and imposed, as required, the permanent disqualification.

4 The appellant has filed an affidavit, stating he was shocked when he received notification of the result. He says he sought legal advice at the time regarding an appeal against the permanent disqualification and was told there was little hope, because he had pleaded guilty. He had more favourable advice from another lawyer, but could not afford the fees required. The appellant says he was then distracted by other proceedings and only consulted a lawyer again about the disqualification comparatively recently.

5 In the meantime, he applied for and was granted an extraordinary driver's licence which expires on 8 November 2012. I am told this morning by counsel on his behalf that he has held an extraordinary driver's licence since 2010. The present conditions of that licence allow him to drive vehicles in class R and S. I am told that the licence has 24 hour coverage, but is restricted to work related travel and to the areas surrounding Kalgoorlie. It also contains conditions which require the appellant not to drink alcohol and to only drive vehicles owned or operated by his employer.

6 An appeal notice was filed on 12 July 2012. The appeal is against both conviction and sentence. Clearly, the appeal is more than three years out of time and an extension will be required. Whether an extension is granted very much depends upon the merits of the appeal. Accordingly, that issue will be referred to the hearing of the appeal. However, the delay is also relevant to the question of whether a suspension order should be granted.

7 As regards conviction, the grounds in essence are that the alleged facts as contained in the Statement of Material Facts relied upon by the prosecution could not support a conviction for the more serious offence of driving whilst impaired by drugs, contrary to s 64AB, rather than the lesser offence of driving whilst a proscribed or illicit drug is present in the person's oral fluid or blood, contrary to s 64AC. Section 64AC carries significantly lesser penalties and would not have resulted in permanent disqualification. It is asserted that actual impairment is an essential element of s 64AB, as opposed to s 64AC, and there was never any allegation of actual impairment at the time of the offence.

8 This is not the occasion to determine the merits of the grounds. The appellant will have to overcome the difficulty that he entered a plea of guilty, which is usually taken to be an admission of all elements of the offence. He has advanced some reasons why he did so, but whether they will be accepted by the respondent or whether they will file answering affidavits is not yet known.

9 In these circumstances, I am not in a position to determine whether the grounds have a reasonable prospect of succeeding at this point. Accordingly, the question of leave to appeal, which is required by s 9 of the Criminal Appeals Act 2004, will be referred to the hearing of the appeal. That is relevant to the present application, because in some circumstances, leave will act as an automatic suspension of penalty orders. In particular, this is so in respect of a disqualification order under the Road Traffic Act: s 11(3) of the Criminal Appeals Act. Since I do not intend to grant leave now, that provision does not arise.

10 That only leaves open a suspension order under s 12 of the Criminal Appeals Act. That section provides as follows:

Sentences etc., Supreme Court may suspend etc.

(1) At any time after an appeal under this Division is commenced against a decision of a court of summary jurisdiction, the Supreme Court may make any order it thinks fit that suspends or continues in effect until the appeal is concluded -

(a) the decision;

(b) any sentence imposed, or order made, by the court of summary jurisdiction as a result of the decision;

(c) any statutory consequence of the decision.

(2) The Supreme Court may amend or cancel an order made under this section at any time.

(3) An order may be made under this section before or after the Supreme Court decides whether or not to give leave to appeal.

(4) If the Supreme Court makes, amends or cancels any such order, it must give a copy of the order -

(a) to the court of summary jurisdiction concerned; and

(b) if the order relates to the statutory consequence of the decision being appealed, to any person who under a written law is required to register the statutory consequence.

(5) Despite subsections (1) and (2), if an appellant or respondent is serving a sentence of imprisonment -

(a) the sentence must not be suspended unless he or she is granted bail under the Bail Act 1982; and

(b) he or she must not be released from custody until he or she becomes entitled to be released under that Act.

(6) If an appeal is commenced against a decision involving or giving rise to the imposition of a fine (as defined in the Fines, Penalties and Infringement Notices Enforcement Act 1994 section 28(1)), an order cannot be made under this section.

(7) An order made under this section has effect despite section 11.

11 Section 12 provides no guidance as to the circumstances in which a suspension order would be appropriate. However, in the analogous context of civil single judge appeals dealt with under O 65 of the Supreme Court Rules, I considered an application for a stay in Hire Access Pty Ltd v Michael Ebbott (2012) WASC 108. At par 22 of that judgment, I held that the principles applicable to an application to stay enforcement of a judgment set out in Eastland Technology Australia Pty Ltd v Whisson (2003) WASCA 307, (2003) 28 WAR 308 [9] were equally applicable to an appeal under O 65. There are of course some differences with an appeal under the Criminal Appeals Act. In particular, such appeals obviously relate to the consequences of criminal proceedings which are different in type and may raise different considerations. Nonetheless speaking generally, in my view, the principles set out in Eastland provide useful guidance in exercising the discretion under s 12.

12 Applying those principles to the circumstances of the present case, I am satisfied that a suspension order is justified. Whilst it is not possible at this stage to say that the appeal is assured of success or even that it has reasonable prospects of success, there are some indications that this is an appeal which may succeed. The fact that the appellant has obtained a extraordinary driver's licence and has maintained his employment would count against suggestions that a suspension is required to counter any irreversible consequences for the appellant. On the other hand, he has sworn an affidavit, which has been provided to the court this morning, which sets out in some detail the effect which the permanent disqualification has had on he and his family over the ensuing three years. Notwithstanding that he has an extraordinary driver's licence, it is apparent that it has caused limitations in his employment opportunities and this is confirmed in a letter from his employer.

13 It is also apparent that limitations on driving have caused personal difficulties, in particular because, for reasons which are not presently relevant, his wife is no longer able to drive. This is recently caused problems in relation to transporting their children to school. There have also been difficulties in maintaining familial obligations in respect of seriously ill relatives, which are referred to in detail in the affidavit.

14 It is of course important to take into account that a permanent disqualification is intended to ensure the safety of other drivers on the road. I also take into account that the appellant received this disqualification some years ago and the delay seems to be at least in part due to his own dilatoriness. Notwithstanding that, he appears (with one minor exception) to have complied with the terms of extraordinary driver's licence.

15 In these circumstances, I am satisfied that the consequences to him of continuing to face the difficulties of having a permanent disqualification outweigh the concerns that might be raised in regards to maintaining the permanent disqualification, particularly bearing in mind that the extraordinary driver's licence has enabled him to drive in any event. Any concern in regards to him driving is minimised by ensuring that this matter is listed at the earliest time. I am able to do that today by listing the matter for hearing before me on 4 September 2012, a date which I understand is suitable to both parties. That will mean that the stay will only be operable until that date, subject to any application to extend it pending the resolution of the appeal.