Iseppi v Director General of Transport
[2001] WASCA 433
•29 JANUARY 2002
ISEPPI -v- DIRECTOR GENERAL OF TRANSPORT [2001] WASCA 433
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 433 | |
| 29/01/2002 | |||
| Case No: | SJA:1113/2001 | 20 SEPTEMBER 2001 | |
| Coram: | SCOTT J | 20/09/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JUSTIN KEITH ISEPPI DIRECTOR GENERAL OF TRANSPORT |
Catchwords: | Criminal law Appeal against refusal to grant extraordinary driver's licence Turns on own facts No appellable error |
Legislation: | Road Traffic Act 1974, s 76(3) |
Case References: | Lowndes v R (1999) 195 CLR 665 Boyd v Director General of Transport (2001) 32 MVR Damianopulos v Director General of Transport, unreported; SCt of WA; Library No 970513; 23 September 1997 Dangerfield v Commissioner of Police [2000] WASCA 375 Director General of Transport v Moody (2000) 31 MVR 289 Director General of Transport v Wyatt, unreported; SCt of WA; Library No 990050; 22 January 1999 Galati v Traffic Board, unreported; SCt of WA; Library No 980731; 16 December 1998 Hopkins v Traffic Board, unreported; SCt of WA; Library No 970590; 5 November 1997 House v The King (1936) 55 CLR 499 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DIRECTOR GENERAL OF TRANSPORT
Respondent
Catchwords:
Criminal law - Appeal against refusal to grant extraordinary driver's licence - Turns on own facts - No appellable error
Legislation:
Road Traffic Act 1974, s 76(3)
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L B Robbins
Solicitors:
Appellant : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Lowndes v R (1999) 195 CLR 665
Case(s) also cited:
Boyd v Director General of Transport (2001) 32 MVR
Damianopulos v Director General of Transport, unreported; SCt of WA; Library No 970513; 23 September 1997
Dangerfield v Commissioner of Police [2000] WASCA 375
Director General of Transport v Moody (2000) 31 MVR 289
Director General of Transport v Wyatt, unreported; SCt of WA; Library No 990050; 22 January 1999
Galati v Traffic Board, unreported; SCt of WA; Library No 980731; 16 December 1998
Hopkins v Traffic Board, unreported; SCt of WA; Library No 970590; 5 November 1997
House v The King (1936) 55 CLR 499
(Page 3)
1 SCOTT J: This is an appeal against a decision of a Magistrate in a Court of Petty Sessions in which he refused to grant to the applicant an extraordinary motor driver's licence. The grounds of appeal as set out in the appeal book are that the learned Magistrate erred in law in his assessment of the applicant's application in that he failed to consider adequately or at all any of the criteria mentioned at s 76(3) of the Road Traffic Act 1974, save for the applicant's driving record; (2) put exclusive or undue weight on the applicant's driving record; (3) assessed the applicant's record as overwhelming all other evidence in favour of the applicant; (4) put insufficient weight on the criteria of s 76(3) of the Road Traffic Act which favoured the granting of an extraordinary driver's licence to the applicant, namely, (a) the degree of hardship and inconvenience which would otherwise result to the applicant and his family if the Court refrains from making the order, (b) the circumstances of the case, (c) the character of the applicant and (d) the nature of the offence or offences giving rise to the disqualification, and (e) precedence indicates that the applicant's driving history does not fall outside of s 76(3)(d).
2 In considering an appeal it is important to bear in mind that this Court does not rehear the application as if it were sitting de novo. It is an appeal from a Magistrate and accordingly the onus is on the applicant to demonstrate that there is some appellable error which has resulted in a miscarriage of justice in the Court below. So much is apparent from the case of Lowndes v R (1999) 195 CLR 665, the report of which commences at page 665 but the relevant passage is at page 671 in the judgment of their Honours Gleeson, Gaudron, Gummow, Kirby, Hayne and Callinan JJ in the judgment of the Court. The passage reads:
"The principles according to which an appellate Court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] 2 VR 520 . Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic House v The King (1936) 55 CLR 499. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
(Page 4)
3 In considering the matter before the Magistrate, his Worship had occasion, in my view, to consider all of the aspects of s 76(3) of the Road Traffic Act 1974 and in particular the matters which by that subsection the Magistrate was required to look to. Indeed, in the transcript of the proceedings in the Court below, those specific aspects of the matter were brought to his Worship's attention by counsel for the respondent and his Worship, following that, asked the appellant certain questions to indicate that indeed his mind was focused upon the matters contained in s 76(3).
4 In particular he asked the applicant if he was single, if he had children, which is one of the matters that he is entitled to take into account and matters of that sort. Indeed, the applicant brought his attention to the financial hardship from which he says that he was then suffering.
5 The applicant, or appellant as he is now, says that his financial situation has deteriorated but, in my view, there is no evidence before me to show that there is any significant difference between the matter that was before the Magistrate and the matter that is before me, save and except for one matter, and that is that he now lives with his grandmother where he pays $65 per week. I accept, as the applicant has said, that the applicant does suffer from severe financial hardship by reason of the fact that he does not have a motor driver's licence.
6 That is a consequence of his driving conduct over a period of time which his Worship properly took into account. I am quite unable to see that his Worship has made any error in the way in which he dealt with the matter. In my view, his Worship took into account all the matters that were properly before him and having done so he came to the conclusion that the applicant in his Court had not demonstrated that an extraordinary driver's licence was warranted in all of the circumstances of the case and having taken into account the submissions that have been made here today I am quite unable to say that his Worship's discretion in that respect has miscarried or that any of the grounds of appeal to which I have earlier referred have been made out.
7 The applicant maintains that his Worship did not properly take into account what he calls the 18-month period of which he has been of good driving conduct but that was indeed before his Worship and part of the period that is referred to in that 18 months would include the period that the applicant was actually in custody.
(Page 5)
8 The applicant has been able to carry out some work with the use of his pushbike, although I accept his submission that he does suffer a great deal of inconvenience by reason of the fact that he does not have a driver's licence that will enable him to carry out as well as he would like the occupation which he now undertakes. He will, of course, be able to make a further application to the Court of Petty Sessions after a six-month period has elapsed.
9 In all the circumstances of this case, I am quite unable to conclude that the Magistrate has erred in any way in his consideration of the application in the Court of Petty Sessions and accordingly the application will be dismissed.
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