Pasic v The Police [2001] WASCA 127 (24 April 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PASIC -v- THE POLICE [2001] WASCA 127

MATTER : Justices Act 1902

Criminal law and procedure - Appeal against cancellation of extraordinary driver's licence - Whether special circumstances justified exercise of discretion not to cancel licence - Turns on own facts - Road Traffic Act 1974, s 77

Justices Act 1902, s 199(1)(b), s 199(1)(c)

Road Traffic Act 1974, s 76(1), s 76(3), s 76(6), s 77(2)

Fine of $1000 substituted with no cancellation of extraordinary driver's licence

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

Pennings v Maryan [2000] WASCA 172

Road Traffic Board v Hamilton, unreported; SCt of WA; Library No 950508; 21 September 1995

1 MILLER J: The appellant is a 35-year-old self-employed floor layer. He runs a business called Euro Carpentry and Floor Sanding which specialises in the installation of parquetry flooring. This business he began in approximately October 1999. He is a married man with four children aged between 5 months and 10 years.

2 The appellant has a very bad driving record. On 20 April 1985 he was convicted in the Court of Petty Sessions at Port Hedland of the offence of driving a motor vehicle whilst under the influence of liquor and his motor driver's licence was then disqualified for a period of six months. On 27 March 1990 he was convicted in the Court of Petty Sessions, Perth of a second offence of driving a motor vehicle whilst under the influence of liquor and on this occasion his motor driver's licence was disqualified for a period of two years. On 22 March 1996 he came before the Court of Petty Sessions at Joondalup on a third charge of driving under the influence of liquor and had his motor driver's licence disqualified for life. On each of the three occasions to which I have referred, fines were also imposed ranging between $400 and $1200.

3 On 1 June 2000 in the Court of Petty Sessions at Perth the applicant was granted an extraordinary motor driver's licence within the meaning of s 76 of the Road Traffic Act 1974. Such a licence may (s 76(1)) be issued to a person disqualified from holding or obtaining a driver's licence where the Court directs the Director General to do so. There are limitations upon the timeframe within which an application may be made for an extraordinary driver's licence, a person who has been convicted of an offence under s 63(2)(c) of the Act (a third driving under the influence of liquor offence) being precluded from making application for a period of at least four months after the disqualification imposed for the offence.

4 There are a number of criteria which the court is required to take into account in considering whether or not an extraordinary licence should properly be issued. Those criteria are set out in s 76(3) and are as follows:

"(a) the safety of the public generally;

(b) the character of the applicant;

(c) the circumstances of the case;

(d) the nature of the offence or offences giving rise to the disqualification;

(e) the conduct of the applicant subsequent to the disqualification; and

(f) the degree of hardship and inconvenience which would otherwise result to the applicant and his family, if it refrains from making the order, ... "

In the event that the court considers it proper that a person should have an extraordinary licence, it may make an order directing the Director General on payment of the prescribed fee to issue to the applicant an extraordinary licence for a period not exceeding 12 months. Pursuant to s 76(6) the Director General is required on payment of the prescribed fee to renew any extraordinary licence so granted by the court for any period not exceeding 12 months if during the currency of the licence the holder has not contravened any of the limitations and conditions which the court imposed when directing that the licence be issued.

5 The order of the Court of Petty Sessions made on 1 June 2000 directed the Director General upon payment of the prescribed fee to issue an extraordinary licence class A and B until 30 May 2001 to the appellant. That licence was subject to a number of conditions contained within the order of the court. They were:

"... to drive a motor vehicle to and from his home to his employment and in the course of his employment as a FLOOR SANDER/CARPENTER when trading as EURO CARPENTRY & FLOOR SANDING during the hours 6.00AM to 6.00PM Mondays to Fridays inclusive.

THE EXTRAORDINARY LICENCE IS SUBJECT TO THE FOLLOWING CONDITIONS:

Restricted to drive within a 50 kilometre radius of the Perth GPO.

Licence to be carried at all times whilst in control of a motor vehicle.

To comply with the Road Traffic Act and Regulations.

Not to consume alcohol at all during the duration of this licence.

To maintain and carry a log book showing times and place of departure, purpose of journey and proposed destination.

To affix an "E" plate of dimensions of "P" plate to front & rear of vehicle when driving.

The applicant is to comply with the requirements of S.42(2)(c) & (d) of the Road Traffic Act."

6 On 12 October 2000 the appellant breached one of the conditions of his extraordinary licence by exceeding the speed limit. He thus breached a provision of the Regulations. The offence was one of exceeding the speed limit by between 10 and 19 kmh and it was dealt with by way of infringement notice. It had the result that the applicant was brought before the Court of Petty Sessions, Perth on 10 January 2001 and charged pursuant to s 77 of the Road Traffic Act with the offence of driving otherwise than in compliance with the limitations and conditions specified in the licence. For this he was fined $1200 which was the maximum fine which could have been imposed.

7 The circumstances of the offence which had been committed on 12 October 2000 were that the appellant had driven at an excessive speed through a school zone where the speed limit was less than that which applied on ordinary suburban roads. Although there is no transcript of the proceedings before the Court of Petty Sessions on 10 January 2001, it appears clear that the court determined that a fine of $1200 was a sufficient penalty and that the extraordinary licence of the appellant should not be cancelled. Section 77(2) of the Road Traffic Act makes provision that the court may, in circumstances where the holder of an extraordinary licence has been convicted of a breach of the terms and conditions of that licence, cancel the extraordinary licence. It is in the following terms:

"In addition to the penalty which may be imposed under the provisions of subsection (1), the court before which the defendant is 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."

8 On 2 December 2000 the appellant again breached the terms and conditions of his extraordinary licence. In essence, he drove a motor vehicle on a day other than the days prescribed and he failed to affix to his vehicle the requisite "E" plates. He was charged in the Court of Petty Sessions at Perth that being the holder of extraordinary licence number 3200252 issued pursuant to the provisions of s 76 of the Road Traffic Act, such licence being issued subject to compliance with certain conditions, he drove a motor vehicle on Mint Street, Carlisle and failed to comply with the endorsed conditions of the licence. The matter came before the Court of Petty Sessions, Perth on 17 January 2001 when the appellant pleaded guilty. The prosecutor stated the facts in the following terms:

"At about 7.00am on the 2nd of December 2000, the defendant drove a Ford Fairlane in an easterly direction on Mint Street, Carlisle. The vehicle was stopped in relation to another matter. It was ascertained that the defendant was the holder of an extraordinary driver's licence and subject to conditions. There was a series of conditions, sir.

PROSECUTOR: At the time the defendant failed to comply with those conditions by: 1) driving on a Saturday; 2) failing to carry his licence whilst being in the control of a motor vehicle and; 3) failing to affix the "E" plates on either the front or the rear of the vehicle."

9 There was a dispute at the hearing as to whether the appellant had failed to carry his licence and in the absence of proof from the prosecution that he had committed this breach, the matter was dealt with on the basis of the first and third alleged breach. The appellant was represented by counsel who pointed out to the court that the appellant was a man with a dependant wife and children who had developed a thriving business since the issue to him of an extraordinary licence. The explanation given for the offence committed by the appellant was in the following terms:

"Now what occurred on the Saturday morning at 7.30am -- 7.00am, was that one of his employees was to perform a job of installation. And he didn't turn up, so Mr Pasic was called to the job and it was an emergency situation in a sense. He drove the car that he doesn't usually use for the jobs. And the car -- because of the fact that it was an emergency situation that car wasn't available to him.

That was the car which had the number plates. And also had his licence in it. So he went to the job - straight to the job and that was when he was -- he was picked up by the police. So the situation is that he had been complying by every condition of the extraordinary driver's licence. This was a situation where he was called out in an emergency situation.

And the reason why it was an emergency situation really, is because he was in danger of losing the contract if -- if he didn't go out to the place of work and perform the installation. As I said, your Worship he does support four children. His extraordinary licence is absolutely essential for the maintaining of his business. And he does employ a couple of other people to help him with the installations."

Counsel for the appellant submitted to the court that a fine would be the appropriate penalty and that it would be unjust to cancel the appellant's extraordinary licence.

10 The matter was heard before Justices, one of whom had dealt with the appellant the previous week when he had pleaded guilty to breaching his extraordinary licence by speeding. It was, however, pointed out to the court that the offence for which the appellant was before the court on 17 January 2001 had actually occurred prior to the disposition of the speeding contravention on 10 January 2001. This was clearly correct, and it appears to have been appreciated by the Justices that the penalty imposed on 10 January 2001 (which was the maximum) could not have been treated as a "warning" to the appellant as to what might occur to him if he came before the court again for breach of his extraordinary licence.

11 The Justices who heard the matter on 17 January 2001 were concerned that the appellant had breached the terms and conditions of his extraordinary licence and thus abused a privilege which had been given to him. The following extracts from the transcript indicate clearly their views:

"JP1: Well all I can say, an extraordinary licence is a privilege. It's a privilege. You come to court because of the circumstances which relate to your work. So the court doesn't give you an extraordinary licence based on the fact just to get your licence back.

JP1: Now I think I know the magistrate that would've done this because he's asked you to fix an 'E' plate on your car. And there's one particular magistrate that insists on this. And I know this magistrate - he explains things right down to the law about the extraordinary licence.

He tells you to keep a log book.

MR PASIC: Yes.

JP1: He tells you that you can't drive outside of your hours. You drove on a Saturday which you weren't supposed to. You failed to carry your licence and you failed to put your 'E' plates on your car. Now I mean you can say anything you like but --

MR PASIC: I carry my licence, your Honour.

JP1: --- you've breached three main conditions of the extraordinary licence. They give you an extraordinary licence because of hardship. You've breached that and it makes -- there's no excuse coming to court now and trying to build a case around the fact that you had to go and see a job. That's the hours that the court gave you. Between 6.00am and 6.00pm Monday to Friday. You knew you weren't to drive on a Saturday. There's no excuse.

...

He wasn't to drive on a Saturday, that's quite clear. You know - no good coming to court now and making an excuse, when somebody's given an extraordinary licence. And trying to say now --- justify --- it would be inept enough of us to -- to just give you a fine and walk out of the court. You've disobeyed the rule - the golden rule. You've driven outside your normal hours. And also, you failed to display your 'E' plate. You failed to carry the licence and you were driving on a Saturday, ...

...

JP1: But what a mockery we're making --- he comes to court to get a privilege and he's disobeyed that privilege. I mean ---

MR BELL: But your Worship --- yes; I understand --

JP1: I --- it wouldn't be right for us to even consider him in this particular case. He's not to drive. He didn't display his 'E' plate. He failed to carry his licence. I mean -- "

12 Counsel for the appellant submitted that the breach was a "one off situation" and an isolated incident and asked the court to take into account that whilst under life disqualification the appellant had a completely clean record. The Justices concluded by saying:

"JP1: I'm sorry, Mr Bell, my colleague and I have discussed this and we just can't --- can't agree with the submission that you've made. He's breached -- an extraordinary licence is a privilege. And he's --- that's what you've got to understand. It's a privilege and you can't -- if you're going to breach that, we give you another one. When you breach that --- the court gave you an extraordinary licence on conditions.

Now the magistrate would've clearly identified those conditions and he would've told you this is what you have to do. Now it's no good coming back into the court and saying, 'I made a mistake.' and the bring up the hardship. You've breached that and it's --- I'm sorry, it's --

MR BELL: Would you accept your Worship, there is some discretion though that you do have?

JP1: Well I can't accept anything. The fact is that he -- what I accept is the fact of what the evidence you've given us and the fact that he's disrespected the extraordinary licence. What he's done - he's gone and breached what the magistrate put down on the conditions. It's as simple as that.

MR BELL: But there is a penalty for that, the fine.

JP1: Charge 014942, the charge is proven. We are going to fine the defendant $200 and $57.70 and we're taking away -- he's not have his extraordinary licence. Cancellation of his extraordinary licence.

I mean if you think you've been hard done by well you can appeal."

13 On 16 February 2001 I granted the appellant leave to appeal the decision of the Justices whereby the extraordinary licence was cancelled. The grounds of appeal upon which leave was granted are:

"The Court in cancelling the Applicant's licence failed to take into account the following special circumstances of the case;

(a) the breach of condition was work related and a matter of urgency;

(b) the loss of the licence would cause extreme hardship on the Applicant; and

(c) the behaviour of the Applicant since his disqualification."

14 The current state of authority in this State establishes that "special circumstances" within the meaning of s 77(2) of the Road Traffic Act includes circumstances special to the offender. In Stride v Powell [1982] WAR 336 Wallace J (at 340) put it this way:

"... in my opinion the natural and ordinary meaning of the words entitles the sentencing authority to have regard to all circumstances relating to the commission of the offence and that is what is meant by the use of the word 'case' as opposed to the use of 'offence'. The legislature has seen fit to empower the exercise of a discretion involving consideration of all circumstances relating to the case for the purpose of determining whether or not the extraordinary licence shall be cancelled as opposed to the provision of a fine, the penalty for which is prescribed in sub-s (1). Even Lord Goddard concedes some consideration thereto. Granted the legislation has provided a limited discretion, nevertheless it seems to me that it has been at pains - having regard to the infinite variety and breadth of human endeavour - not to fetter the manner in which the discretion should be so exercised. In my opinion the appellant's successful rehabilitation over a period in excess of four years is a consideration to be borne in mind as well as all the other criteria to which the statute points."

15 In Hemphill v Ninyett, unreported; SCt of WA; Library No 920368; 17 July 1992 Commissioner Ng pointed out that there had been conflicting decisions in the court as to whether the discretion to cancel an extraordinary licence was restricted only to consideration of special circumstances of the offence as distinct from consideration of special circumstances of the offender. The learned Commissioner pointed out that in Stevens v Bowey, unreported; SCt of WA; Library No 3064; 31 October 1980, Brinsden J had held that "special circumstances of the case" referred to the circumstances which constituted the offence and not special circumstances which related to personal matters concerning the offender. In Stride v Powell (supra), however, Wallace J had adopted the broader interpretation of the section and this view had been followed in other jurisdictions. In Chadwick v R [1985] 1 QdR 320 the Court of Criminal Appeal of the Supreme Court of Queensland apparently approved the decision in Stride v Powell and it has been followed in Tasmania (Flanagan v Knowles [1957] Tas SR 301, McCoy and Johnson v Fenton & Smith [1960] Tas SR 149; Smith v Fletcher [1971] Tas SR 279) and in the Australian Capital Territory (Burke v Muir (1967) 15 FLR 30). Further, in , unreported; FCt SCt of WA; Library No 8547; 12 October 1990 Malcolm CJ held that in the context of of the , the circumstances of the case included circumstances relevant to the offender himself.

16 In my view the wider interpretation of s 77(2) of the Road Traffic Act adopted by Wallace J in Stride in Powell (supra) is clearly correct, and it follows that in the context of the present case it was necessary that the Justices in determining whether there were any special circumstances of the case which justified a fine as an adequate punishment rather than cancellation of the extraordinary licence, should have given consideration not only to the circumstances of the case itself, but the wider criteria set out in s 76(3) of the Act. In my view, the Justices failed to do that and the transcript of the proceedings reveals clearly that their view was that breach of the terms and conditions upon which the extraordinary licence was issued was breach of a privilege granted by the court and in respect of which cancellation of that extraordinary licence was inevitable. Indeed, when counsel for the appellant questioned one of the Justices whether he accepted that there was some discretion in the matter, the answer given was "Well I can't accept anything".

17 Everything points to the Justices taking 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. This approach was clearly wrong and would justify the matter being remitted to the Court of Petty Sessions for re-hearing according to law. However, at the hearing of this appeal I was urged to substitute a decision which it was contended ought to have been made by the Justices (Justices Act 1902, s 199(1)(c)). In this respect, the respondent submitted that if the Justices had fallen into error there had nevertheless been no substantial miscarriage of justice (Justices Act 1902, s 199(1)(b)). I was therefore urged to conclude that the ultimate disposition of the matter was correct in any event. Counsel for the respondent put in the alternative that if the appeal was to succeed and I was of the view that the extraordinary licence of the appellant should not be cancelled, then a fine closer to the maximum which could have been imposed would be appropriate, as the Justices had clearly taken into account cancellation of the extraordinary driver's licence in fixing the fine at only $200 in respect of the appellant's breach.

18 Counsel for the appellant contended that consideration of the appellant's personal circumstances, together with the circumstances in which the offence was committed, should have led to the exercise of a discretion not to cancel the extraordinary driver's licence. Reliance was placed upon the fact that the appellant had driven in breach of the terms and conditions of his licence in "non-aggravating circumstances" in the sense that he was attending to an urgent work requirement. In this respect the appellant said in his affidavit sworn in support of the proceedings:

"On the morning of Saturday 2 December 2000, I drove a vehicle which was other than my normal vehicle in response to a phone call from a client wherein one of my employees had failed to attend for work in installing parquetry floors at a job site. I did so, as it was a matter of some urgency that I attended and did the work myself otherwise I would lose the contract. I was apprehended shortly after I left my residence which at that time was 172 Raleigh Street, in Carlisle."

19 It was also submitted that cancellation of the extraordinary licence would lead to extreme hardship for the appellant and for his dependant wife and children. In this respect the appellant had sworn in his affidavit that when he obtained his extraordinary driver's licence he employed several workers on different jobs throughout the metropolitan area, adding:

"Whilst I could do the installation work myself, my main role in the business was going to the various jobs and supervising the workers which involved checking the work had been commenced in a proper fashion so that at its completion it would not need relaying ... my work involved constant travel across the Perth metropolitan area."

20 The appellant also swore by affidavit that since losing his extraordinary licence he had had to put off all but one part-time and one full-time employee. He was no longer able to supervise work because he could not travel to various job sites and the only work he was able to do was that of a parquetry installer himself. Although he was attempting to do this it was becoming difficult to get to job sites and he was forced to rely on being driven by an employee which was "unsatisfactory".

21 The essential submission made on behalf of the appellant was that the act of driving on the Saturday which was outside the terms and conditions of the extraordinary licence was foolish and entirely regrettable, but given the personal circumstances of the applicant did not necessitate that his extraordinary licence be cancelled. It was submitted that a substantial fine would serve as a sufficient deterrent to the appellant (and others) and would give him warning of the future consequences of breaching the terms and conditions of the licence. With this submission I agree. I am of the view that had the Justices exercised their discretion according to law, they would have appreciated that serious though the appellant's breach of the terms and conditions of his licence was, there were special circumstances which justified non-cancellation of his extraordinary licence.

22 Since the decision of the Justices on 17 January 2001 the appellant has been without his extraordinary licence. That is a period of some three months. The licence itself terminates on 30 May 2001. Whether the Director General will renew it remains to be seen. In these circumstances it seems to me that the appropriate disposition of the matter would have been a fine of $1000 which I would substitute for the penalty imposed by the Justices. I would therefore allow the appeal; set aside the decision of the Justices in relation to both the fine and disqualification of extraordinary licence and in lieu thereof substitute by way of penalty a fine of $1000 with no cancellation of the extraordinary driver's licence.