For the reasons that follow I am satisfied that if the application were to be refused, it would place an undue financial burden on Mr McGree by depriving him of his principal means of obtaining income.
Mr McGree is the sole operator of a trucking business operated through his private company, AAA Tames Earthmoving Pty Ltd. The business ceased operating once he was sentenced and has not been able to be re-established subsequently as he is the sole operator and driver of his truck which is used in the business. Mr McGree is the sole director and secretary of the company. He holds the only ordinary share in the company. His former wife ceased being a director in 2018. She is still listed as holding the only class A share in the company.
I find that it would not be practicable or likely to materially address Mr McGree's financial burden if he were to seek to re-establish the business using a paid driver. Given the estimated costs of such a driver, other potential risks and expenses from operating in that manner, and the substantial personal element of attracting truck driving work due to his positive reputation and prior experience as a driver, it would be unlikely to materially improve his financial position if he were to seek to continue to operate the business with another driver during the remaining period of the disqualification.
Mr McGree is 64. He has worked as a truck driver for most his life and has no real alternative skills or experience. I am satisfied that he is unlikely to be able find alternative employment given those circumstances and having regard to his relatively unsophisticated nature, apparent physical health and overall circumstances. Working as a truck driver is not only his principal, but is in substance his only, means of obtaining income.
While Mr McGree considered applying for Centrelink benefits, he did not do so. He appeared to have formed a view that he may not have been eligible. Even were he to do so, I am not satisfied that would significantly alleviate the financial burden on him from not being able to work as a truck driver.
Mr McGree set out in his affidavit his financial position and also included information in relation to the income generated through his trucking business.
Aspects of the financial information placed before the court were not entirely satisfactory. That was largely because the statements provided did not make clear whether they were income and expenses of the business or Mr McGree's, and were summary in nature. I accept however, as explained by Mr McGree, that they related to the business and that he in substance did not distinguish between his own income and income of the business and that income of the business was received in the one bank account operated in Mr McGree's name.
Ultimately, in my view, any lack of clarity arising was not material to determination of the application.
I am satisfied that via the trucking business operated through Mr McGree's private company, in the year up until 31 May 2023 a net income before tax of approximately $156,000 was earned as a result of Mr McGree's truck driving. He has since not been able to earn any income from truck driving via the business or otherwise.
I am also satisfied that Mr Tsouris, a friend and work associate of Mr McGree, sought to assist Mr McGree emotionally and financially. He provided some financial assistance and also looked after Mr McGree's truck while he was in prison, occasionally using it to maintain its usage, while also meeting various expenses associated with its upkeep. An understanding was reached that Mr McGree (whether personally or via his company) would at some point repay those expenses, albeit no timeframe was set within which this was to occur. Those amounts were largely reflected in an unaudited profit and loss statement prepared for the year ended 31 May 2024 which recorded a loss of $18,934.27. Certain discrepancies in that amount were identified during cross-examination but they were, in my view, immaterial to the court's decision.
Further, even were I to assume that there was no moral or legal obligation on Mr McGree to repay any such amounts, it does not materially affect my determination of the application. That is because I am, in any event, satisfied that an undue financial burden would be caused to Mr McGree if the application were to be refused.
Mr McGree has now been without a source of income since being imprisoned and released on parole. He has relied on the support of family and friends to meet his expenses associated with maintenance of his truck, day-to-day living expenses and mortgage repayments. I accept that his sister met his mortgage payments for a number of months however is now no longer able to continue to assist due to her own serious ill-health. Mr McGree has also exhausted the available financial support of his friends. While Mr McGree accumulated various funds prior to being sentenced, they have now been depleted in meeting his mortgage and day-to-day living expenses.
Mr McGree has significant mortgage repayments which he is unable to continue to meet from any source of income.
It would be open to Mr McGree to seek some contribution from his three young adult children, who live with him, towards rent and living expenses. Even taking that into account I accept that Mr McGree would be unable to meet his mortgage on an ongoing basis as well as his modest personal living expenses.
Mr McGree has already sought to modify mortgage arrangements at various times to try to ameliorate the impact of his loss of income. I am satisfied however that if the application were not granted, he would in the near future reach a position where he would need to sell his motor vehicle, truck or house in order to meet expenses. That is a significant and undue financial burden on him.
I am satisfied, having regard to the whole of the evidence, that if the application were refused Mr McGree would be subject to not only a financial burden, but an undue financial burden, by depriving him of his principal means of obtaining income.
If the application were granted, I am satisfied that Mr Tsouris would likely make available truck driving work to Mr McGree for at least several days a week. That would likely involve driving trailers to and collecting trailers from Wubin, the need arising due to a limitation of bringing no more than two trailers beyond that point into the Perth region. Mr McGree may also be able to obtain work through other contacts.
Mr McGree considered it would be financially hard for him were he to work less than five days a week but was open to a more significant restriction on his driving if the court considered that to be appropriate.
[2]
Given this finding, I turn now to consider the five mandatory relevant considerations required to be taken into account in exercising my discretion.
[3]
In my view a convenient starting point in assessing the safety of the public generally is to have regard to the circumstances of the offending, which I have set out earlier in these reasons. The deliberate decision of Mr McGree not to stop his truck as required led to the tragic collision and death of another driver. He was driving a prime mover and an unladen trailer weighing just under 16 tonnes with a combined vehicular length of 18.9 m.
It was plainly a dangerous act, affecting public safety, with tragic consequences. Mr McGree did check and did not see the vehicle with which he collided, was travelling at a relatively slow speed and was not affected by alcohol.
It is also relevant that Mr McGree has no prior convictions despite being a truck driver for most of his working life.
He has however received certain traffic infringements.
Prior to the offence Mr McGree received traffic infringements for exceeding the speed limit on three occasions, in 2015, 2017 and 2019. On two occasions he did so by less than 9 km per hour and on the other by between 10 and 19 km per hour.
Further, Mr McGree also received an infringement on 20 March 2020 for contravening a red arrow signal by not stopping as near as practicable to, but before reaching and proceeding beyond the stop line. This was of potential significance given its similarity to the nature of the driving that was the subject of the offence of which Mr McGree was convicted.
Mr McGree denied however that he was the driver of the truck on that occasion. An issue accordingly arose as to the significance of that evidence and the record of infringements placed before the court.
Mr McGree explained that someone else had been driving the vehicle and 'we' (being a reference to himself and another unidentified person or persons) could not find out who had driven the vehicle. He said that the vehicle was left in the yard at Welshpool and that the keys were generally left on the floor in the truck. He said that 'we' tried to find out who the driver was to no avail and no one came forward or was honest enough to admit they were driving. Mr McGree explained that he filled out a form saying that he was not the driver but could not identify who the driver was. He said that he received some form of response explaining that under the law he had an obligation to know at all times who was driving his vehicle and he therefore accepted the infringement.
As the CEO had no prior notice that Mr McGree denied being the driver of the vehicle, I afforded the CEO the opportunity to seek to adduce further evidence about the circumstances of that matter, if the CEO saw fit. Ultimately however, the CEO was content not to seek to do so but rather for the court to decide what weight to place on the record of infringements and Mr McGree's evidence.
Having regard to Mr McGree's evidence, I accept that he was not the driver of the vehicle on 20 March 2020 when the driving the subject of the infringement occurred. Further, even if he was, or is deemed to have been, the driver, I do not consider that, in all the circumstances, it materially affects my overall conclusion as to public safety generally. That is so particularly given that the infringement precedes the date of the offence.
I also take into account that Mr McGree has incurred three traffic infringements after the date of the offence for:
On 7 September 2020 without reasonable excuse driving or causing/permitting a vehicle to which a copy of a defect notice or sticker was fixed, to be driven on a road, not in accordance with the applicable defect notice.
On 24 January 2022 driving a vehicle that was carrying a load that was not restrained on the vehicle by a system appropriate to the load.
On 21 May 2022 exceeding the speed limit in the speed zone by not more than 9 km per hour.
That conduct is of concern as it occurred after the offence and the first two infringements in particular on their face involved some potential risk to public safety from Mr McGree's driving of his truck.
Three demerit points were incurred for the first of those infringements and no demerit points were incurred for the other two infringements.
Mr McGree acknowledged during his evidence that he was at fault in driving his truck at the time when it was subject to a yellow sticker. He explained that the yellow sticker arose from an inspection of the truck conducted after the accident. He explained, and I accept, that he mistakenly thought he had 28 days to get the issues identified addressed and was taking the truck to get it repaired at the time of the infringement. He plainly ought to have taken much greater care to ensure he understood and complied with the limitations arising from the yellow sticker having been affixed to his vehicle.
I also note that Miocevich DCJ in sentencing Mr McGree accepted that he did not require rehabilitation and was a very low risk of reoffending.
While taking the above matters into account, I have ultimately reached a similar conclusion and am satisfied that if the application is granted there will be low risk to the public generally.
Mr McGree completed the Traffic Offender Intervention Program on 23 May 2023.
Mr McGree explained in his affidavit that he did not consider himself to be a danger to the public when driving a motor vehicle any more as his attitude towards driving has changed completely since the offence occurred. He referred to various matters which have led to him changing attitude including seeing the consequences of his actions, how many people's lives were impacted and completing the above program. He says this has led him to understand the importance of complying with road rules as they are implemented to protect not only his safety but the safety of other road users as well. Not having his licence reaffirmed to him that having a driver's licence is a privilege. I generally accept Mr McGree's evidence in this regard, albeit subject to recognising that he did incur several driving infringements after the date of the offence.
Mr McGree explained, and I accept, that after the offence he became more patient, and would take his time. He ceased working for tonnage rates (ie on a rate per tonne or per cubic metre), and rather only accepted truck work based on hourly hire rates where he did not have the same pressure on him. He does not intend to accept tonnage rate work in the future and was content for any extraordinary licence he may be granted to be limited accordingly.
I accept that Mr McGree has learned from the offence and shown insight in relation to factors that may have affected his driving and the importance of complying with road traffic rules.
After taking all the above matters into account I am satisfied that he presents a low risk to the safety of the public generally if he returns to driving trucks on the road in a work context.
[4]
Mr McGree has no criminal record other than for the offence of dangerous driving causing death. As already observed, he has committed certain driving offences which have been the subject of infringements, before and after that offence, as set out above. While those matters may in certain respects be seen to go to his character, ultimately, I consider that against Mr McGree's otherwise good driving record and his positive character and hard-working nature as supported by character references attached to his affidavit and the evidence of Mr Tsouris.
I do not consider that Mr McGree has shown a disrespect or deliberate disregard for the law, except insofar as he deliberately did not stop on the occasion of the offence. Insofar as he made that deliberate decision on the day, and otherwise has committed certain driving offences, I accept that he has learned from that, and shown remorse for his conduct and insight in relation to the importance of complying with road traffic rules. I am satisfied that he is a person of good character and has adequately addressed any character concerns arising from his driving offence and traffic infringements. This factor weighs in favour of the grant of the application.
[5]
I have already set out at length my findings in relation to the overall circumstances of the case, in particular in relation to the current circumstances of Mr McGree and undue financial burden on him if the application is refused by depriving him of his principal means of obtaining income.
I also take into account that Mr McGree clearly presented when giving evidence with a low mood and affect. That was consistent with the opinions expressed in the psychologist's report provided with his affidavit, which I accept, in relation to Mr McGree suffering from a major depressive disorder, a generalised anxiety disorder and stress, in the context of trying to cope with ongoing legal issues, financial worries and family problems.
The principal matter raised by the CEO in opposition to the application was the limited period of the disqualification which has been served and potential undermining of any punitive aspects of the disqualification. These matters are relevant to the nature of the offence giving rise to the disqualification and I have therefore addressed them below in relation to that consideration. I accept that, to an extent, those considerations overlap with consideration of the overall circumstances of the case. Taking those matters into account, I nevertheless consider that the overall circumstances still weigh strongly in favour of the application being granted.
[6]
(d) Nature of the offence giving rise to the disqualification
[7]
I have already set out my findings in relation to the nature and circumstances of the offence giving rise to the disqualification and its objective seriousness. The deliberate decision of Mr McGree not to stop was, in all the circumstances, a serious offence given the size and weight of the truck he was driving and the grave consequence of the death of another driver. It occurred while he was driving the truck in a work-related context. As such that is a factor which weighs against the grant of an extraordinary driver's licence to enable him to resume driving trucks in a work-related context.
In terms of the driving disqualification imposed, as the CEO contends, at this time a little over a quarter of the period of disqualification has been served. The CEO contends that, in effect, the application has been brought too soon and if granted would undermine the punitive aspect of the disqualification. The CEO contends that this countervailing factor ultimately is such as to justify the exercise of the court's discretion to refuse the application.
In support of that contention reliance is sought to be placed by the CEO on principles said to have been identified by the Court of Appeal in McKenzie, by McKechnie J in Italiano v The Director General of Transport[7] and their application in various decisions of this court including Taylor v Director General of Transport,[8]Mohamed Amin v Chief Executive Officer of the Department of Transport[9] and De Pledge v Chief Executive Officer of the Department of Transport.[10]
As McKechnie J observed in Italiano, a licence is a not a right but a privilege, the continued maintenance of which depends on the avoidance of traffic offences.[11] It may also be accepted that a period of disqualification may in part have punitive aspects[12] as well as protective aspects.
If an extraordinary licence is granted to an applicant, it may reduce the so called 'punitive aspects' of a disqualification. As the Court of Appeal observed in McKenzie, these are not expressly referred to in s 30(2), but they will ordinarily be an integral part of the 'nature of the offence or offence giving rise to the disqualification', within s 30(2)(d).[13]
The nature, extent and significance of any potential resulting reduction in any punitive aspects will depend on the circumstances of the case. Matters that may be relevant to that assessment include, but are not limited to, the length of the disqualification imposed, the period of the disqualification that has been served, the minimum period before which an application may be made, and the scope of any proposed extraordinary driver's licence and conditions to which it may be subject.[14]
Further, that is only one consideration to be weighed against all other considerations in the overall exercise of the discretion.
That the reduction in any punitive aspects may have been considered of significance in the particular circumstances of one case, does not mean it will have the same significance in the circumstances of a different case.
In cases such as Taylor[15] and De Pledge,[16] similar periods of two-year disqualifications had been served by the applicant to the period served by Mr McGree in this case. That was considered to be of particular significance in the circumstances of those cases. It does not necessarily follow, as the CEO appeared to contend, that the same level of significance arises in this case. It does not, in my view, follow that in a case where slightly over a quarter of the period of disqualification has been served it is necessarily a strong countervailing factor or that it necessitates a conclusion that an application should be refused. It depends on weighing up all the circumstances.
While I consider that if the application is granted it will reduce the significance of any punitive aspects of the disqualification, that will be ameliorated by the scope of the licence and appropriate conditions that I identify below. Further, the applicant will still be significantly restricted in his ability to drive. He has been, and will continue to be, affected by punitive aspects of the disqualification, even if the application is granted.
While overall the nature of the offence and this related aspect are significant, and weigh against the exercise of the discretion, in my view they are strongly outweighed by other considerations in this case.
[8]
(e) Conduct of the applicant subsequent to the disqualification
[9]
In the period since the disqualification took effect following Mr McGree's release on parole he has not driven or committed any offences. That counts slightly in favour of the grant of the application but is overall a relatively neutral consideration.
[10]
After weighing up the preceding considerations, I am satisfied that it is appropriate to exercise my discretion to grant Mr McGree's application.
In my view the undue financial burden I have found Mr McGree would suffer if the application were refused by reason of being deprived of his principal means of earning income, would be adequately addressed if the application were granted subject to appropriate conditions to the following effect:
A condition that Mr McGree may not drive other than:
[11]
(b) for the purpose of, or reasonably incidental to, work as a truck driver pursuant to a contract or arrangement where payment is not based on tonnage or volume rates;
[12]
(d) for a maximum driving period of 10 hours per day;
[13]
(f) within 400 km of the Perth central business district.
[14]
An appropriate condition in relation to the maintenance, carrying while driving and production on request of a logbook recording the times, dates, vehicle and location of any driving.
In my view those conditions would also significantly ameliorate any countervailing considerations including those arising as a result of the nature of the offence and any impact on any punitive aspects of the resulting disqualification.
I will allow the application and order that the CEO, on payment of the prescribed fee, grant to the applicant an extraordinary licence for a period of 12 months subject to conditions to the above effect.
I will hear from the parties as to the final terms of the order and conditions of the extraordinary licence, and as to the question of costs.
[15]
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
[16]
[1] As the disqualification was imposed by this court, the application was required to be made to this court: s 29(1).
[17]
[2] Subparagraphs (a) to (g) set minimum periods in relation to particular types of offences, including in circumstances where the person has been convicted on more than one occasion. Paragraph (h) imposes a minimum 21-day period after the applicant has been disqualified in any other case not referred to in those paragraphs.
[18]
[3]Director General of Department of Transport v McKenzie[2016] WASCA 147 [52] (McKenzie).