Road Traffic Act 1974 (WA), s 49(3), s 63(1), s 78, s 106

Baker v Bushell (1988) 7 MVR 142

Gardner v R [2003] NSWCCA 199

Herps v Douglas (1991) 13 MVR 568

Horton v Burton (1999) 20 MVR 295

1 On 20 November 1978, the applicant (Mr Jackamarra) stood charged in the Court of Petty Sessions at East Perth that, on 19 November 1978, at South Fremantle, he drove a motor vehicle on South Terrace whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 63(1) of the Road Traffic Act 1974 (WA). On his plea of guilty to that charge, he was duly convicted by the learned Magistrate before whom he appeared and was sentenced to imprisonment for 3 months. The learned Magistrate further ordered that Mr Jackamarra be disqualified permanently from holding or obtaining a driver's licence.

2 At the time, s 63(1) and (2) of the Road Traffic Act 1974 provided that:

"63. (1) A person who drives or attempts to drive a motor vehicle while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle commits an offence, and the offender may be arrested without warrant.

(2) A person convicted of an offence against this section is liable

(a) for a first offence, to a fine of not less than two hundred dollars or more than four hundred dollars or to imprisonment for three months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than six months;

(b) for a second offence, to a fine of not less than four hundred dollars or more than six hundred dollars or to imprisonment for six months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than two years;

(c) for a third offence, to a fine of not less than six hundred dollars or more than eight hundred dollars or to imprisonment for twelve months; and, in any event, the court convicting that person shall order that he be permanently disqualified from holding or obtaining a driver's licence; and

(d) for a fourth or subsequent offence, to a fine of not less than one thousand dollars or more than two thousand dollars or to imprisonment for eighteen months."

Application for leave to appeal and appeal

3 By an application dated 25 August 2003 and made under the Justices Act 1902 (WA), Mr Jackamarra now seeks leave to appeal - nearly 25 years after the event - against the order by which he was permanently disqualified from holding or obtaining a driver's licence. He does so on the grounds that:

(a) The learned Magistrate erred in law by treating the conviction as a third offence when it was legally a second offence; and

(b) the sentence of "life" disqualification was manifestly excessive.

4 In the course of argument, a further ground was also raised and argued with the leave of the Court, namely, whether, if the conviction were for a second offence of driving under the influence, the learned Magistrate had the power under s 63(2)(b), as it then stood, to permanently disqualify Mr Jackamarra.

5 The application was duly served and responded to by the Crown Solicitor's office on behalf of the respondent, who at material times in 1978 was a police constable at the Fremantle Police Station.

6 Counsel for the applicant and the respondent agreed that the hearing of the application for leave to appeal and the appeal should be conducted at the same time.

7 Prior to Mr Jackamarra's conviction for driving under the influence on 20 November 1978, he had been convicted of the same offence on 14 December 1975. A certified copy of the record of the applicant's court appearances maintained by the Western Australian Police Service relevantly records that, on 14 December 1975, the charge of "driving under the influence" was heard and that a $200 fine was imposed. The document also relevantly records that this was a "1st" offence and that Mr Jackamarra was disqualified from holding or obtaining a driver's licence for a period of six months. This document does not record any further conviction for the same offence until the conviction recorded on 20 November 1978, which is the subject of the present application. The parties accept the record is accurate.

8 It is also appropriate to note that the record of court appearances in respect of the disqualification of Mr Jackamarra's driver's licence on 20 November 1978 states that it is a disqualification "for life". However, the complaint upon which Mr Jackamarra was convicted on 20 November 1978 is endorsed by the learned Magistrate with the word "permanently", not "life". Whether this is significant is discussed later in these reasons.

9 It may be relevant to note that the record of court appearances also includes a record of convictions for other offences to do with the driving of a motor vehicle and penalties involving the disqualification of Mr Jackamarra's driver's licence. For example, on 10 October 1975, he was convicted of a first offence of driving "excess 0.08%". For this offence, he was disqualified from holding or obtaining a driver's licence for three months.

10 Apart from this formal record of court appearances concerning Mr Jackamarra, the respondent is now unable to produce anything that shows what material facts were put before the learned Magistrate by reference to which he considered it appropriate to order on 20 November 1978 that Mr Jackamarra be permanently disqualified from holding or obtaining a driver's licence.

11 While the respondent is unable to produce any such information, Mr Jackamarra has put on affidavit evidence, which is not challenged, as to his recollection of the circumstances. Mr Jackamarra states that, to the best of his recollection and belief, the circumstances were that:

(1) He was giving someone a lift home when he missed the corner due to the amount that he had had to drink and hit a parked car on someone's front lawn. There were two passengers in the car he was driving who ran away;

(2) the radiator on the car he was driving was "busted";

(3) he waited for the police for between 20 and 30 minutes and during that time spoke to the owner of the parked car as to how he would pay for the damage to the car;

(4) the police arrived and he was arrested. He co-operated fully with the police and, apart from the damage to the cars, no-one was injured;

(5) he saw a duty lawyer on 20 November 1978 and pleaded guilty on the first appearance to driving under the influence. He was not charged with any other offence;

(6) after receiving the sentence, including 3 months' imprisonment, he did not see the duty lawyer again and assumed the penalty was correct.

Whether disqualification ordered on basis of conviction for a third offence

12 The applicant submits that, having regard to the history set out in the record of court appearances of Mr Jackamarra, on 20 November 1978 the learned Magistrate must have sentenced Mr Jackamarra on the basis that he had been convicted for a third offence, rather than a second offence, of driving under the influence.

13 There is no direct evidence to support this submission. Rather, the submission is made on the basis that, having regard to Mr Jackamarra's uncontradicted recollection of the circumstances of the offence, and because at the material time s 63(2) prescribed different penalties for a first offence, a second offence, a third offence and a fourth or subsequent offence of driving under the influence, the inference should be drawn that the Magistrate imposed penalty on the basis that the offence was a third offence.

14 In the case of a third offence, s 63(2)(c) at material times required the Court to order that the person be "permanently disqualified" from holding or obtaining a driver's licence. However, in the case of a second offence, such an order is not mandatory, although the Court must order that the person "be disqualified from holding a driver's licence for a period not less than 2 years".

15 The applicant submits that, in the circumstances, if the learned Magistrate had been aware, when he imposed the sentence on 20 November 1978, that Mr Jackamarra was then only convicted of his second offence of driving under the influence, he would never have made an order for permanent disqualification of the driver's licence and would instead have disqualified his licence for a period of time in excess of two years and less than "life".

16 The respondent does not concede that the learned Magistrate incorrectly assumed that the conviction he recorded was for a third offence of driving under the influence.

17 While I consider there is some merit in the applicant's submission, the absence of a more complete record than that which is currently before the Court, make it difficult to infer that the learned Magistrate erred in the manner suggested. Thus, the first ground of appeal must fail.

Whether s 63(2)(b) permits permanent disqualification

18 A question arises whether the power of the Court under s 63(2)(b) to order that a person be disqualified from holding or obtaining a driver's licence "for a period of not less than 2 years" for a second offence of driving under the influence comprehends an order that the person be "permanently disqualified".

19 This question, in turn, raises some more particular questions. Is a "permanent" disqualification one capable of being characterised as a disqualification "for a period of not less than 2 years"? Even if it is, because, at the material time, s 63(2)(c) provided that a person should be "permanently disqualified" from holding a driver's licence for a third offence and s 63(2)(d) provided a separate penalty for a fourth and subsequent offence, should the expression "for a period of not less than 2 years" be interpreted to mean some period less than "permanently"?

20 The word "permanent" has been interpreted in other statutory contexts. However, its proper interpretation in the context of one statute may not dictate its proper interpretation in another statutory context, although it may be persuasive.

21 In R v Tunde-Olarinde (1967) 51 Cr App Rep 249, the English Court of Appeal (Criminal Division) upheld an order of disqualification "for life" from holding or obtaining a driver's licence. Under the Road Traffic Act 1962 (Eng), the Court was obliged to disqualify for a period. Parker LCJ accepted that the disqualification must be a "period certain", but considered a "disqualification for life" to be for a period certain.

22 In Horton v Burton (1999) 28 MVR 415, McKechnie J had occasion to consider the definition of the word "permanent" as used in s 63(2)(c) of the Road Traffic Act 1974 as it applied at that time. Section 63(2) was then in similar terms to that set out above, save that s 63(2)(d) had been repealed. However, the particular circumstances in which the question arose for his Honour's consideration were different from those that arise in the present application.

23 In Horton v Burton, the appellant has been convicted of the offence of driving under the influence for a third time in June 1988 and was permanently disqualified from obtaining or holding a driver's licence under s 63(2)(c). Then, in December 1993, the appellant was convicted of the offence of driving without a motor driver's licence contrary to s 49 of the Road Traffic Act. Section 49(3) provided that the Court convicting the person of this offence should disqualify him for a period between nine months and three years, and that:

" ... the period of disqualification so imposed shall be cumulative upon any other period of disqualification to which the person may then be subject or upon any period for which the operation of his driver's licence may currently be suspended."

In light of this provision, a Court of Petty Sessions imposed a term of disqualification cumulative on the permanent disqualification previously imposed in June 1988. McKechnie J upheld the validity of this disqualification.

24 In so doing, McKechnie J held that an order permanently disqualifying a person from holding or obtaining a driver's licence under s 63(2)(c), as it then applied, was for a "period" and did not constitute a disqualification "forever". Having regard to authority which confirmed the need to consider the meaning of a word such as "permanent" in its particular statutory context, McKechnie J stated at 417:

"In my opinion, when used as an adjective to describe a period of time 'permanent' means a substantial interval between two points. The length of the interval is indefinite but not infinite. It is capable of crystallisation at some time in the future. It is not a period which is everlasting."

25 McKechnie J found support for this interpretation of "permanent" in relation to s 63(2)(c) in s 78 of the Road Traffic Act which enables a person, in certain circumstances, to apply to a Court for an order removing a disqualification, including a permanent disqualification. McKechnie J, at 417, thus took the view that: "When the Court orders the removal of the disqualification its period has crystallised."

26 In the event, Horton v Burton does not govern the question of statutory interpretation that arises on this application. However, I must say, with respect, that I do not share his Honour's reasoning. It seems to approach the interpretation of the word "permanently" in the context of s 63(2)(c) on the basis that the period of permanent disqualification will always, by effluxion of time, come to an end. However, a Court is not bound to make an order under s 78 at some point in time following permanent disqualification of a person's driver's licence under s 63(2)(c), and a person is not bound to apply under s 78. If and when an order is made under s 78, in respect of a permanent disqualification, the permanent disqualification will cease to exist. Until that event occurs, the permanent disqualification is good. It is a disqualification for life. The disqualification for life is for a period certain.

27 In short, in my view, the effect of an order that a person be "permanently disqualified" from holding or obtaining a driver's licence under s 63(2)(c), as it stood at all material times on this application, was just that: the person is permanently disqualified by reason of that order. However, that permanent disqualification might be relaxed if, by the law of Western Australia, an appropriate order is made removing that permanent disqualification. Unless and until such an order is made, the disqualification endures for life. It is not a form of disqualification that comes to an end by the effluxion of time. It is a disqualification for life - a period certain.

28 However, this does not mean that I consider the decision of Horton v Burton necessarily to be incorrect, only that it is of limited assistance in determining the application before me. It seems to me, with respect, that McKechnie J was right to observe that, because a permanent disqualification of a driver's licence may be removed at some later time by an order of a Court, a disqualification under s 49(3) can be made cumulative on the period of permanent disqualification in the event that the permanent disqualification should later be removed by order of the Court.

29 In other words, I fully accept the ruling made by McKechnie J in Horton v Burton, though I do not consider the decision to be a binding authority in respect of the proper interpretation of the expression "permanently disqualified", as it appeared in s 63(2)(c) at material times, for the purposes of the application now before me.

30 In Binns v Gardiner [2002] WASCA 337, Hasluck J had to deal with an appeal against a decision of the Court of Petty Sessions "permanently" disqualifying the appellant from holding or obtaining a firearm licence. Section 27 of the Firearms Act 1973 (WA), at the time, relevantly provided for an order for disqualification to be made "for such period as the court determines". The question was whether the Court erred in determining that a permanent disqualification was for "a period".

31 Unlike the Road Traffic Act provision considered in Horton v Burton, the Firearms Act did not make any provision for a person to apply to remove a disqualification. Hasluck J, at [40], considered that the term of the disqualification order imposed by the lower court was "essentially for the life of the offender" and for that reason was for "a period". The approach and reasoning of Hasluck J in Binns v Gardiner in that regard is similar to that of the Lord Chief Justice in Tunde-Olarinde (supra).

32 If the power to order disqualification under the Road Traffic Act 1974 in question in this application were in similar terms to that in s 27 (before it was repealed) of the Firearms Act 1973, there would be every reason to adopt the same approach, reasoning and result as were adopted in Tunde-Olarinde and Binns v Gardiner. If that were the case, it would be open to the Court, in the case of a second offence of driving under the influence, to permanently disqualify a person from holding or obtaining a driver's licence on the basis that it constituted disqualification for "a period".

33 However, the disqualification power here in question is not as generally expressed as it was in those cases. In this case, the power to disqualify a person's driver's licence for driving under the influence is carefully structured by s 63(2). At the material time, for a first offence, the Court was required to order that the person be disqualified from holding a driver's licence "for a period of not less than 6 months". For a second offence, disqualification was required "for a period of not less than 2 years". For a third offence, the required disqualification was "permanently"; and for a fourth, or subsequent, offence, there was no provision for disqualification, but a requirement that the penalty be "a fine of not less than $1000 or more than $2000 or to imprisonment for 18 months".

34 The structuring of the disqualification power in this way, on the face of it, means that, for a first offence, the Court must disqualify a person's driver's licence and provides the Court with a degree of discretion in that the period cannot be less than six months. For a second offence, the position is the same, only that the period of disqualification cannot be less than two years. For a third offence, the disqualification is mandatory and the order must be that the person "be permanently disqualified". There is no discretion in the matter. Once the penalty of permanent disqualification has been imposed, no further disqualification was seen as possible and, thus, a fine or imprisonment was, at material times, the required penalty for a fourth or subsequent offence.

35 While there is a degree of discretion in respect of the period of the disqualification of a person's driver's licence for the first and second offence of driving under the influence, the factors relevant to the exercise of that discretion would appear to be limited to the extent to which a person is under the influence of alcohol, drugs or alcohol and drugs at the relevant time. The penalties provided for in the section plainly are not intended to be imposed to punish behaviour that contravenes other provisions of the Road Traffic Act or the law of Western Australia. For example, for a second offence of driving under the influence, it would not be open to the Court to impose a very long period of disqualification simply because the driver was also guilty of dangerous driving causing death or injury. The latter conduct is governed by s 59 of the Road Traffic Act and the relevant penalty includes disqualification from holding or obtaining a driver's licence for a period of not less than two years: see s 59(3). Similarly, dangerous driving causing bodily harm is governed by s 59A, reckless driving by s 60, dangerous driving by s 61 and careless driving by s 62 of the Road Traffic Act and each separately deals with the question of disqualification of licence. Accordingly, the penalties provided for driving under the influence of alcohol, etcetera, set out in s 63 of the Act, seem to me to be referable to that conduct alone.

36 In this context, s 63 governs driving under the influence. The conviction of a person for that offence attracts the penalty, regardless of how well, or how badly, the person is actually driving the vehicle at the time. The concern of Parliament obviously is to prevent persons from drinking and driving. This intention no doubt is based on the view that a driver under the influence of alcohol or drugs is likely to be a menace on the roads. Thus, s 63 is designed to upgrade the penalty for each subsequent conviction of the offence.

37 Permanent disqualification only becomes a relevant disqualification for a third offence in this graduated approach to penalty. In my view, it follows from the structure of s 63 of the Act that a person's conduct in driving under the influence of alcohol or drugs may only result in a permanent disqualification of his or her driving licence - that is, for life - in the event of a third conviction for the offence. Put another way, in the context of s 63(2), the power under s 63(2)(b) to disqualify for "a period of not less than 2 years" does not permit disqualification for life.

38 In the event, I am not satisfied that the requirement to disqualify a person's driver's licence contained in s 63(2)(b) at material times authorised the permanent disqualification of a person's driver's licence.

Whether the permanent disqualification was "excessive"

39 Should I be wrong in this construction of s 63(2)(b), the question arises whether the "life" disqualification was in any event "excessive".

40 If permanent disqualification for a second offence of driving under the influence may be ordered under s 63(2)(b), such a disqualification is at the absolute limit of the period for which disqualification can be ordered. The material facts concerning the use of alcohol and/or drugs upon which permanent disqualification is ordered would need to disclose an extreme case of driving under the influence.

41 There is nothing in the particular set of facts pertaining to this case to suggest that a disqualification for life of Mr Jackamarra's licence was called for. There is little to explain why the very longest period of disqualification was imposed. On Mr Jackamarra's account of events, which is not challenged, there is nothing remarkable suggested to justify a disqualification of his driver's licence for life for his second conviction under s 63.

42 In those circumstances, even if I be wrong concerning the construction I have given s 63(2) and, in particular, the meaning of the expression "for a period of not less than 2 years" that appears in s 63(2)(b), I consider that permanent disqualification of Mr Jackamarra's driver's licence was excessive. No matter how one looks at it, permanent disqualification is at the absolute outer limit of the discretion to disqualify a driver's licence for a second offence of driving under the influence. Such a disqualification, on the facts before me, was plainly unjust and, for that reason, excessive.

43 For the reasons set out above, I am satisfied that leave to appeal should be granted in a case such as this. Notwithstanding that a considerable period of time has passed since the permanent disqualification of the driver's licence, the questions raised in this appeal are primarily ones of law. The proper determination of these questions does not cause any prejudice to the respondent.

44 I therefore grant leave to appeal on the grounds specified.

45 I further uphold the appeal on the ground that, on 20 November 1978, the learned Magistrate did not have the power under s 63(2)(b) to permanently disqualify Mr Jackamarra from holding or obtaining a driver's licence.

46 In the event I am wrong in my decision in that regard, I consider in any event, on the material before me, that the order by which Mr Jackamarra was permanently disqualified from holding or obtaining a driver's licence was excessive and should succeed on that ground.

47 In the circumstances, given that nearly 25 years have passed since the permanent disqualification order was made, I am satisfied that it is sufficient to discharge the order made by the learned Magistrate on 20 November 1978 that Mr Jackamarra be permanently disqualified from holding or obtaining a driver's licence and that, in its place, there should be an order that Mr Jackamarra be disqualified for a substantial period, say, for 10 years, from 20 November 1978. I recognise that the setting of a 10-year period is somewhat arbitrary. However, in the light of my decision concerning the lack of power of the learned Magistrate to impose a permanent disqualification and the inability of the respondent to produce any relevant materials bearing upon the material facts of the case, the Court must do the best it can. It is not appropriate simply to order that there be no disqualification. In those circumstances, a period of 10 years seems reasonable. It also happens to coincide with the period after which a person whose licence has been permanently disqualified, or disqualified for 20 years, may apply under s 78 of the Road Traffic Act for removal of the disqualification.

3. The order of the Court of Petty Sessions at East Perth on 20 November 1978 permanently disqualifying the applicant from holding or obtaining a driver's licence be set aside and in lieu of that order there be an order that as and from 20 November 1978 the applicant be disqualified for a period of 10 years from holding or obtaining a driver's licence.