Green v Webb [2006] WASC 71

Pasic v The Police [2001] WASCA 127

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stride v Powell [1982] WAR 336

Hemphill v Ninyett (1992) 16 MVR 86

Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Re the State of Western Australia; Ex parte Worswick [2005] WASCA 187

Traffic Board v Smith, unreported; SCt of WA; Library No 950394; 25 July 1995

1 MCKECHNIE J: In the late afternoon of New Year's Eve 2004 the appellant was driving home from work on Safety Bay Road when a speed camera detected that he was travelling 20 kilometres above the speed limit. At the time the appellant was the holder of an extraordinary driver's licence. He appeared in the Rockingham Magistrates Court on 14 February 2006 and pleaded guilty to breaching the conditions of his extraordinary driver's licence.

2 Upon conviction the provisions of the Road Traffic Act 1974 (WA) s 77(2) applied so that the Court before which he was convicted "... shall cancel the extraordinary licence unless the court thinks that, having regard to the special circumstances of the case, a fine would be an adequate punishment for the offence".

3 The appellant has an appalling traffic record. The Magistrate took a very dim view of the appellant's offending in light of his record, telling the appellant to look in the mirror and that he had betrayed the trust of his employer and let his family down. He fined the appellant $500 and cancelled the extraordinary licence.

4 On 21 March 2006, after hearing counsel for the appellant, I ordered that the application for leave to appeal and the appeal be heard together on 4 April 2006. I ordered a pre-sentence report and gave leave to the appellant to file an affidavit detailing his personal circumstances.

5 The application for leave to appeal is on the single ground as follows:

"The learned Magistrate erred in law and fact when he cancelled the Appellant's extraordinary drivers licence:

Particulars

a. the decision to cancel was based upon specific error, namely a failure to consider properly or at all the special circumstances of the case itself, together with the wider criteria set out in s76(3) of Road Traffic Act 1974."

6 In Stride v Powell [1982] WAR 336 Wallace J held that the use of the word "case" as opposed to the use of the word "offence" in s 77 meant that a wide interpretation of s 77(2) was called for. In Pasic v The Police [2001] WASCA 127 Miller J analysed the conflicting authorities in this Court before reaching the conclusion at [16] that the wider interpretation of s 77(2) of the Road Traffic Act adopted by Wallace J in Stride v Powell is clearly correct.

7 I respectfully agree. In the facts of Pasic Miller J held that the Justices had erred in looking at the whole case because they did not also look at the wider criteria set out in s 76(3) of the Road Traffic Act. The Justices in that case took the view that if there had been a breach of the terms and conditions upon which the extraordinary licence was issued, cancellation of the licence was automatic.

8 Miller J found those special circumstances in that case. In this case, the appellant submits that the Magistrate made a similar error as that made by the Justices in Pasic.

9 The appellant appeared in person before the Magistrate and pointed out his personal circumstances and the reason why the offence was committed. His reason was that he was simply keeping up with the traffic although he acknowledged this was not an acceptable excuse. He said that he was not a reckless driver and not a danger to traffic, or other people on the road, which prompted the Magistrate to be blunt telling the appellant that his driving record was atrocious and that he had been a high offender over a long period of time which had cost him dearly but he "still didn't get the message". The Magistrate then said:

"... You only have a licence under special circumstances. You're not somebody who's otherwise entitled to drive. The court's been very sympathetic. As I say, this will be effectively the third time in 4 years that you've faced a court for breaching an order ... (indistinct) ... extraordinary. Extraordinary, not just a normal; it's the extraordinary nature. And the Act says that if you breach your extraordinary then it shall be cancelled unless there are special circumstances. Now, what special circumstances can you possibly have?"

10 In answer to that question, the appellant pointed out that he needed to keep his licence. If he lost his licence he lost his vehicle, he lost his job and he could not pay his mortgage.

11 Magistrates Courts are busy courts. Magistrates daily must deal with many matters involving different offences and different offenders. In general, a Magistrate does not have the luxury of much time for consideration or much opportunity to completely expose the reasoning process. It is inevitable that even with the most careful Magistrate, from time to time, errors will occur. In recognition of this fact, the Court in its supervisory appellate jurisdiction takes perhaps a more lenient approach to an appellant, sometimes allowing an appellant to supplement, by way of affidavit, what was probably an inadequate plea in mitigation before the Magistrate. However, there are limits. At its essence the appeal is governed by the rules of law and error must be shown.

12 The appellant submits that the Magistrate did not properly consider the wider circumstances to which the appellant had made reference and now have been expanded before me in the affidavit and the pre-sentence report. I consider that the appellant has shown sufficient for a grant of leave to appeal: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

13 The nature of the appeal is against the exercise of sentencing discretion. Absent specific legal error, it is hard for an appellant to demonstrate that the discretion miscarried, especially where the appellant bears the onus of overcoming the mandatory requirements of s 77(2) by establishing the special circumstances of the case.

14 The matters sketched before the Magistrate were amplified in the affidavits and the pre-sentence report.

15 The appellant is 34 years and has two dependant children and appears to be solely responsible for their care. He has a mortgage and also lives in a property where he pays rent. He is employed as a post-maintenance co-ordinator responsible for the South West region and thus requires a licence to drive, being on call between 6 am and 6 pm seven days a week, working on average seven days. He also takes his sons to their school. He has a motor vehicle purchased on finance and also tools purchased on finance. He can no longer travel for work purposes any reasonable distance beyond his home in Warnbro and can only work at present because a friend drives him. There is a real risk that he may lose his employment because he is unable to drive and visit sites in Albany or Bunbury. The dramatic decrease in his earning capacity is causing him extreme difficulty in meeting financial obligations and the day-to-day expenses concerning his sons.

16 These matters, adverted to before the Magistrate, but now given in more detail, are the basis for the submission that there are special circumstances why the appellant's extraordinary driver's licence should not have been cancelled. However, the circumstances of the case also require, as a wider view, consideration of the offence and also the prior record of the appellant. The offence itself involved no element of dangerousness but did involve driving 20 kilometres in excess of the speed limit. There was no particular urgency or necessity that required the appellant to speed. If weighed against the personal circumstances of the appellant solely, the circumstances of the offence do not require a cancellation of the licence as a penalty.

17 However, when the appellant's record is examined a different story arises. On 22 May 1991 the appellant was disqualified from driving for 3 months due to accumulation of demerit points. On 7 August 1991 he was also convicted of one charge of driving over the speed limit and one charge of driving without a current driver's licence. Between 1 May 1992 and 29 June 2000 the appellant was convicted of 4 charges of no motor drivers licence and 16 charges of driving while under disqualification, resulting of course in further terms of disqualification. He was fined in respect of 10 of the charges and received one period of probation. In respect of nine of the charges, he received sentences of imprisonment, ranging from 4 to 8 months, some of which were suspended, and in other cases actual periods of imprisonment were served. He was convicted of one charge of failing to stop after an accident and one charge of failing to report an accident and convicted of two charges of breaching his suspended imprisonment sentence and received a custodial sentence of 4 months which was suspended. He was disqualified from holding or obtaining a driver's licence for 3 months by reason of the accumulation of demerit points and convicted of driving at a speed exceeding the speed limit. On 5 October 2001 the appellant was convicted of contravening his extraordinary driver's licence and the licence was cancelled and he was fined. Between January 2002 and October 2003 the appellant was convicted of three charges of driving while under disqualification receiving terms of imprisonment which were suspended and his licence was further disqualified. On 30 October 2003 the appellant was convicted of two counts of contravening his extraordinary driver's licence and was fined. Between 20 April 2004 and 30 August 2005 the appellant was convicted of driving over the speed limit and also was disqualified from driving by reason of an accumulation of demerit points.

"A Probation Order imposed upon Mr Green in Perth CPS on 19/4/96 was summarily breached in the same Court on 25/2/97. In addition his compliance with supervision was poor. Mr Green was released to Parole on 25/8/97 and successfully negotiated that order on 24/2/98."

19 Counsel for the appellant submits that in the record there is no element of dangerousness or recklessness. That submission may be accepted but does not carry the matter very far. The appellant has exhibited an almost pathological disregard of the obligations to comply with a motor driver's licence either ordinary or extraordinary.

20 The position of the appellant is curious. On the one hand he is an industrious well-regarded tradesman with a responsible position. He has sole care of his children for whom he provides all of their needs. On the other hand he is the holder of a driving record that makes it a struggle to find an appropriate adjective to describe.

21 I now return to the Magistrate's decision. Making due allowance for a busy Magistrate, I conclude that the Magistrate fell into error in the manner outlined in the grounds of appeal. The tenor of the interchange between the Magistrate and the appellant was such that it is obvious the Magistrate focused on the driving record to such an extent that he did not give any sufficient consideration to the special circumstances outlined by the appellant as to why he should keep the extraordinary driver's licence.

22 I propose to exercise the powers under the Criminal Appeals Act 2004 (WA) s 14 to consider whether I would substitute the decision that should have been made by the court of summary jurisdiction. In the exercise of my discretion under the Road Traffic Act s 77(2) I have regard to the submissions of counsel for both the appellant and respondent, to the affidavit and annexures filed on behalf of the appellant and to the pre-sentence report. As part of the circumstances of the case I also take into account the circumstances of the offence, the appellant's driving record and in particular his previous breaches of the conditions of an extraordinary driver's licence.

23 The Road Traffic Act s 77(2) also directs attention to the question whether a fine would be an adequate punishment. The appellant's attitude towards the obligations of an extraordinary licence holder are such that I do not think a fine is an adequate punishment for contravening the terms of this licence. A monetary penalty is insufficient to bring home to the appellant the seriousness of his offending. I am well aware of the financial and familial consequences of a decision to cancel the extraordinary driver's licence. However, weighing all the matters to which I have referred, my conclusion is that the circumstances are not sufficiently special to refrain from cancelling the extraordinary licence. The extraordinary licence should be cancelled. Although the appellant has succeeded in showing error, the appeal should be dismissed because I consider no substantial miscarriage of justice has occurred in the result.