Road Traffic Act 1974 - Reckless driving - First offence - Whether period of disqualification excessive - Turns on its own facts

Road Traffic Act 1974 (WA), s 5(1a)(b), s 60(1), s 60(3) and s 76

Attree v Randell (1993) 19 MVR 95

Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Carter v Denham [1984] WAR 123

Damianopulos v Director General of Transport (1997) 26 MVR 182

Davis v Commissioner of Police (WA) (1990) 12 MVR 297

Farrington v Thomson & Bridgland [1959] VicRp 49; [1959] VR 286

Kearns v Lane, unreported; SCt of WA (Wallace J); Library No 5424; 27 June 1984

Reynolds v Wilkinson (1948) 51 WALR 17

Thompson v The Queen (1992) 8 WAR 387

Varnavides v Kilmurray, unreported; SCt of WA (Burt CJ); Library No 1843; 4 October 1976

Walker v Osborne (1995) 22 MVR 363

Woods v Webb, unreported; SCt of WA (Kennedy J); Library No 8147; 19 March 1996

1 On 23 November 2001, the appellant was convicted in the Perth Court of Petty Sessions of breaching s 60(1) of the Road Traffic Act 1974 (WA) ("the Act"), following his plea of guilty.

2 Section 60(1) of the Act provides:

"Every person who wilfully drives a motor vehicle in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence."

3 The penalties for a breach of s 60(1) are contained in s 60(3) of the Act which provides:

"(3) A person convicted of an offence against this section is liable -

(a) for a first offence, to a fine of 20 PU or to imprisonment for 6 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 6 months;

(b) for a second offence, to a fine of 24 PU or to imprisonment for 6 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining the driver's licence for a period of not less than 12 months; and

(c) for a third or subsequent offence, to a fine of 48 PU or to imprisonment for 12 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."

4 The maximum fine for a first offence is $1,000, a second offence $1,200 and a third or subsequent offence $2,400: s 5(1a)(b) of the Act.

5 The learned Magistrate imposed a fine of $400, costs of $38 and ordered that the appellant be disqualified from holding or obtaining a driver's licence for a period of 12 months.

6 The appellant appeals only against the disqualification period. In particular, the appellant says the disqualification order was excessive having regard to "the fact that it was the [appellant's] first offence, the age and good antecedents of the [appellant] and the fact that the disqualification was more appropriate to a second offence".

The Circumstances of the Offence and the Offender

7 The facts were admitted. At around 1.12 am on 9 October 2001 the appellant drove his car at 185 kilometres per hour along the Mitchell Freeway passing through a stationery police radar near the Karrinyup Road exit. The speed limit on the Mitchell Freeway is 100 kilometres per hour. At the relevant time there were no other vehicles in close proximity to the appellant's. The weather was overcast and the roads were wet. The appellant had not been drinking.

8 The appellant is a young man of 19. At the time of the offence he was a university student of limited means working part-time at the Hyde Park Hotel and earning around $150 per week. He had no prior criminal record. He lived at home in a close family environment and was accepted to be of good character.

9 The learned Magistrate described the appellant's conduct as very serious. He continued:

"I accept that it is out of character for you to behave in that manner but you must be punished for the act that you have committed. I accept that you will probably lose your employment. You will probably lose your vehicle as a result of this conviction and it is going to cause you severe inconvenience, but I must also balance that against the potential risk that you caused in relation to your manner of driving on this occasion.

Having regard for your limited means, I'll reduce the fine but you will be disqualified for an extended period. It will be for a period of 12 months because of the serious nature of the charge ..."

Principles Applicable to Discretionary Appeals

10 The principles on which an appellate court must act when considering an appeal against sentence are well known. If the sentencing Judge acts upon a wrong principle or takes into account extraneous or irrelevant matters or mistakes the facts or does not take into account relevant matters, then the decision of the sentencing Judge should be reviewed and the appellate court may exercise its own discretion in substitution for that of the sentencing Judge if it has the materials to do so. Further, if the result is unreasonable or unjust, error may be inferred: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

11 What is meant by "unreasonable or unjust", is described in the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 in the following terms (at 325):

"A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short."

12 Further, to determine whether a sentence is excessive, it is necessary to view it in the perspective of the sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of the seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

13 Finally, an appellate court is not entitled to intervene merely because it would have exercised the discretion in a manner different from the sentencing Judge. There must be a material error of fact or law discerned in the reasoning or the circumstances of the case require a different decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672.

14 In this case the appellant does not identify specific error in the reasoning of the sentencing Magistrate. He says the disqualification is excessive.

15 The scheme of s 60(3) of the Act is to provide a system of graduated penalties based upon sequential convictions. In relation to periods of disqualification, that is achieved by increasing minimum periods of disqualification, not by way of graduated maximum periods of disqualification.

16 The fixing of a statutory minimum penalty removes the Court's discretion to impose a lower penalty. However, it would be wrong to construe the minimum period of disqualification for a second offence as the statutory maximum for a first offence. That was conceded by counsel for the appellant.

17 In my view the statutory scheme is intended to accommodate the wide variety of conduct involving varying degrees of culpability that can constitute the offence of reckless driving. For example, the circumstances of a first offence may be of a higher scale of seriousness warranting a longer period of disqualification than the circumstances of a second offence. It is the mere fact of repetition for second and subsequent offences which attracts the increased minimum penalty.

18 Further, it is self evidently the case that the fixing of a statutory minimum does not give rise to a presumption that the minimum penalty is to be imposed: Piggott v Chitty, unreported; SCt of WA; Library No 920116; 9 March 1992 per White J.

19 It was submitted that the circumstances of the offence together with the circumstances of the offender were such that the appropriate disposition was the minimum period of disqualification of 6 months.

20 In support of the submission that the particular circumstances of this case were at the low end of the range of seriousness for the offence of reckless driving, the appellant referred to the fact that the only traffic infringement related to speed, that no alcohol was involved and the appellant was driving alone with no other vehicles in close proximity. The appellant relied on a number of authorities, in particular Forbes v Durant [1999] WASCA 85. In that case an 18 year old man drove his car with two other occupants at 175 kilometres per hour in a light industrial area. There was a group of people on the footpath of the street where the speeding occurred. The Magistrate imposed a fine of $500 and disqualified the driver for 2 years. On appeal, McKechnie J reduced the period of disqualification to 12 months. McKechnie J also referred to the small number of cases dealt with in this Court and concluded that it was difficult to discern a tariff or range of sentences or disqualifications most commonly imposed because of the relatively few appeals. I agree. He continued (at par 15):

"This is an area very much within the discretion of Magistrates, who regularly deal with a wide variety of motoring offences and circumstances and are in a good position to judge the relative culpability of different offenders."

21 I am of course assisted by the authorities to which I have been referred. However, each of them turns on their own particular facts. Further, in my view, they do not provide support for the proposition that the circumstances of this case fall at the low end of the range of seriousness of the offence of reckless driving.

22 The appellant's conduct was of itself inherently dangerous regardless of the surrounding circumstances. That it is not the most serious conduct of its type that can be postulated is not determinative. It would or may be so if (which is not the case) the minimum period of disqualification for a second offence was the statutory maximum for a first offence.

23 The personal circumstances of the appellant are clearly relevant and were taken into account by the learned Magistrate. The appellant is a young man of good character who is clearly remorseful for his conduct and pleaded guilty at the earliest opportunity. However, the offence of reckless driving attracts a heavy penalty which reflects the need for general and specific deterrence. Young people of good character can and do act dangerously and irresponsibly when behind the wheel of a car with the potential for tragic consequences to themselves and others.

24 The appellant also raised in his written submissions the fact that he would not qualify for an extraordinary licence. This ground was not pressed at the hearing of the appeal. In my preliminary view, that matter is irrelevant. It involves speculation as to how a court would exercise its discretion under s 76 of the Act at some future time on facts as they exist at that time. However, even if it is a relevant factor it should, for essentially the same reason, carry little weight.

25 I accept that a period of 12 months disqualification from holding or obtaining a driver's licence is a significant penalty for the appellant. However, I am satisfied that it is within the permissible discretionary range and thus is not excessive. I propose to dismiss the appeal.