Henderson v Chief Executive Officer of the Department of Transport - [2020] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HENDERSON -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT [2020] WADC 59
CORAM:   PRIOR DCJ
HEARD:   30 APRIL 2020
DELIVERED          :   14 MAY 2020
FILE NO/S:   CIVO 327 of 2019
BETWEEN:   TERRY LEE HENDERSON
Applicant

AND

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Motor vehicles - Life disqualification - Application for removal of disqualification - Road Traffic Act 1974 (WA) s 49(8) - Road Traffic (Authorisation to Drive) Act 2008 (WA) s 24, s 30 and s 32 - Application granted - Turns on its own facts

Legislation:

Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic Act 1974 (WA)

Result:

Application granted

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Mr K L Sardinha

Solicitors:

Applicant	:	Not applicable
Respondent	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Nil

PRIOR DCJ:

The applicant Terry Lee Henderson (the Applicant) has made an application dated 2 September 2019 for removal of his permanent life disqualifications for holding or obtaining a driver's licence pursuant to s 24(1) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (the Act).

In support of the application the Applicant has sworn affidavits dated 10 October 2019 and 28 April 2020. Annexed to these affidavits are:
1.The Applicant's Western Australian court history dated 21 August 2017.
2.A letter from the Applicant dated 20 April 2020.
3.Materials the Applicant has obtained for the Prisoners Review Board including his parole plan dated 9 March 2020.
4.Certificates of courses the Applicant has completed whilst in custody recently.
5.A letter from the Applicant's partner, Ms Tanya Darnell.
6.A letter from Mr Kevin Chattele, a case manager/counsellor at Relationships Australia dated 21 February 2018.
I have read both the affidavits and the material annexed to the affidavits.
The respondent, the chief executive officer of the Department of Transport (the Respondent) has been served with all the material filed in support of the application by the Applicant and opposes the application.
The Respondent has provided a copy of the Applicant's Western Australian criminal and traffic record dated 19 March 2020, the Applicant's Queensland driver's licence history dated 23 March 2020 and the police statement of material facts relating to criminal and road traffic offences the Applicant committed in Western Australia on 21 December 2017, 20 December 2017, 19 November 2017, 8 February 2003 and 9 June 2002.
I note that two of the offences referred to in the police statement of material facts provided by the Respondent, being the offences of assault public officer on 21 December 2017 and steal motor vehicle and drive recklessly on 8 February 2003 do not appear on the Applicant's Western Australia criminal and traffic record.
The Applicant and counsel for the Respondent made submissions at the hearing of the application before me on 30 April 2020.
The Applicant was disqualified for life for holding or obtaining a driver's licence on17 December 1997 and 17 July 2002 at Perth Court of Petty Sessions for offences of reckless driving and 28 November 1997 in the District Court for driving under suspension.
The Applicant has made a previous application under s 24(1) of the Act in December 2017 but he withdrew his application.
Pursuant to s 24(3)(c) and s 24(4) of the Act the Applicant could have made this application after July 2002. He waited in excess of seven years before making an application.
The Respondent opposes the application on the grounds of the safety of the public generally and the character of the Applicant.
The Respondent refers to the evidence of the Applicant's extensive criminal and traffic record, his history of prohibited drug use, in particular, methylamphetamine and lack of personal references to support the application.
In exercising my discretion under s 24(5) of the Act I am obliged to consider the following:
(a)the safety of the public generally; and
(b)the character of the Applicant; and
(c)the circumstances of the case; and
(d)the nature of the offence or offences giving rise to the disqualification; and
(e)the conduct of the Applicant subsequent to the disqualification.
The Applicant is aged 48 years old. The Applicant's Western Australian criminal and road traffic record is extensive. A significant part of it is a Children's Court record. His Queensland road traffic record only relates to offences he committed in the early 1990s. The Applicant's adult record of offending indicates he engaged in continual offending from 1990 to mid 2002.
The Applicant has outstanding cumulative disqualifications of four years to serve if his permanent disqualifications are removed due to cumulative disqualifications imposed on 9 August 2000 and 17 July 2002 in the Perth Court of Petty Sessions for four driving under suspension offences. This is due to the provisions of s 49(8) of the Road Traffic Act 1974 (WA).
The Respondent submits that the order removing the Applicant's permanent disqualification should not be made until the Applicant has obtained and complied with an extraordinary driver's licence for one to two years.
The Applicant intends to apply for an extraordinary driver's licence in order to carry out his duties once he obtains employment. The Applicant is a qualified welder. The Applicant indicates in his affidavits he has employment available to him.
If the Applicant was to apply for an extraordinary driver's licence he will be required to satisfy a Magistrates Court that he has met the criteria pursuant to s 30 of the Act. The licence would be issued for the purpose it is sought and conditions may be placed on the licence pursuant to s 32 of the Act. In this respect it will be a restricted driver's licence.
If I make the order sought by the Applicant he will not be able to drive a motor vehicle on a public roadway for another four years unless he obtains an extraordinary driver's licence. The Respondent accepts this is a relevant consideration for me to take into account in exercising my discretion.
The Applicant is presently a sentenced prisoner.
He is presently serving his sentence of imprisonment at Karnet Prison Farm. He has been in custody at that prison for nine months.
The Applicant was sentenced to 2 years and 6 months imprisonment in this court on 29 June 2018 for an offence of stealing from place of deposit used for custody of goods in transit, an offence pursuant to s 378(5)(c) of the Criminal Code. The offence was committed on 20 December 2017. He was also sentenced to 3 months imprisonment for an offence of making a threat to destroy, damage, endanger or harm property and 1 month imprisonment for an offence of trespass. These two sentences of imprisonment were ordered by the Midland Magistrates Court to be served concurrently with the District Court sentence of imprisonment of 2 years and 6 months.
The three offences the Applicant was convicted of are serious offences and are relevant to my assessment of his character. The police statement of material facts do not indicate he drove a motor vehicle when committing these three offences.
The Applicant will complete his full sentence of imprisonment on 22 June 2020. He is eligible for release on parole on 15 May 2020 if the Prisoners Review Board grant him parole. If the Applicant is released on parole, his behaviour will be supervised in the community. This will ensure some public safety.
Whilst he has been a prisoner at Karnet Prison Farm the Applicant has been authorised to drive vehicles on the prison farm property.
Whilst the Applicant has been serving his term of imprisonment he has not used prohibited drugs. He has been regularly drug tested. He has also completed a number of drug abuse programmes and life skills courses.
The Applicant has not committed a road traffic offence since June 2002 in Western Australia. His last offence in Queensland was in 1993. All the Applicant's subsequent convictions since June 2002 are criminal offences.
The Applicant has no record of driving a motor vehicle while being impaired by drugs or driving with a prescribed illicit drug in his oral fluid or blood.
The Applicant's last offence involving consumption of alcohol and driving was in 1996. The Applicant confirms in his affidavit that he no longer drinks alcohol.
If the Applicant was to drive a motor vehicle whilst under the influence of alcohol or illicit drugs, the public safety would be put at risk. There is no evidence to suggest he has behaved in this way in over 15 years.
The Applicant's criminal record indicates an excess of a 15 year gap in offending behaviour between June 2002 to November 2017. This indicates to me the Applicant is capable of being a law abiding citizen and rehabilitating himself. What the Applicant has done whilst in custody indicates his bona fide intentions to rehabilitate himself.
In my view the rehabilitation of offenders is a matter for consideration when considering the criteria under s 24(5) in particular in the circumstances of the Applicant's case. It is also a matter generally in the public interest.
Although the Applicant's record generally indicates he is not a person of good character, what I have described about his background indicates he has taken positive steps to reform his character. The criminal offences he committed in November and December 2017 are inconsistent with his behaviour from 2003 ‑ October 2017 and his subsequent behaviour whilst incarcerated.
Any order I could make removing the Applicant's permanent disqualifications will have no practical impact for another four years after the order. The Applicant is not obliged to apply for an extraordinary driver's licence over those four years but he has expressed an intention to do so.
I do not consider the Applicant's application is premature. He has served approximately 18 years of his life disqualification. Except for the offences for which he is presently serving a term of imprisonment the Applicant has avoided offending from June 2002 to November 2017.
Upon considering the criteria to exercise my discretion under s 24(5) of the Act, I am satisfied on the Applicant's material to make an order to remove the Applicant's permanent driver's licence disqualifications imposed on28 November 1997, 17 December 1997 and 17 July 2002 from today's date, 14 May 2020.
I make an order removing three disqualifications for life and that will be effective from today.
Pursuant to s 24(9) of the Act I order that the Applicant pay the Respondent's costs fixed in the sum of $275.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
12 MAY 2020