Johnson v Williams - [2022] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JOHNSON -v- WILLIAMS [2022] WASC 78
CORAM:   SOLOMON J
HEARD:   4 FEBRUARY 2022
DELIVERED          :   14 MARCH 2022
PUBLISHED           :   15 MARCH 2022
FILE NO/S:   SJA 1054 of 2021
BETWEEN:   ANTHONY DESMOND JOHNSON
Appellant
AND
SHANE JOHN WILLIAMS
Respondent

ON APPEAL FROM:
For File No:   SJA 1054 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   JUSTICES OF THE PEACE
File Number            :   HC 570 of 2008

Catchwords:

Appeal from the Magistrates Court at Halls Creek - Original decision made by Justices of the Peace in Halls Creek permanently disqualifying the appellant from driving - Manifestly excessive 'life' disqualification - 13 year delay in bringing appeal - Appeal against sentence - Leave to grant appeal - Exceptional circumstances - Miscarriage of justice

Legislation:

Criminal Procedure Act 2004 (WA), Sch 1
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 24, s 24(10)
Road Traffic Act 1974 (WA) (as at 15 March 2008), s 67(2), s 67(2)(a), s 67(3), s 78, s 105
Road Traffic Act 1974 (WA) (as at 20 March 2009), s 49(1)(a), s 49(3)(c), s 49
Road Traffic Act 1974 (WA) (as at 23 April 2012), s 49
Sentencing Act 1995 (WA), s 37

Result:

Application for extension of time to appeal granted
Appeal allowed
Substituted decision ordered

Category: B

Representation:

Counsel:

Appellant	:	S H King
Respondent	:	S Olynyk

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor's Office

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

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
BPR v The State of Western Australia [2007] WASCA 41
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120
Edwards v Simpson [2018] WASCA 177; (2018) 86 MVR 141
EXF v Western Australia [2015] WASCA 118
Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132
Petrusic v State of Western Australia [2020] WASCA 62
Tubbs v Pomykaj [2009] WASC 379
Wimbridge v Western Australia [2009] WASCA 196

SOLOMON J:

Overview

This matter has all the hallmarks of the unremarkable. Even its title, Johnson v Williams, is suggestive of a conventional dispute, uncomplicated by the potential diversity of human experiences. It is an appeal arising from a conviction under the Road Traffic Act 1974 (WA) (RTA); one of many appeals arising from the multitude of offences under that legislation that come before the Magistrates Court.[1]
[1] For instance, in 2021, 94 appeals from the Magistrates Court were heard by this court. Of those, 20, or 21%, related to matters where at least one charge arose pursuant to the RTA.
The apparent banality of that context belies its significance and the gulf in power and fortune that lies between 'Mr Johnson' and 'Mr Williams'.
Mr Johnson is an Indigenous Australian born in 1964 in the remote town of Halls Creek in the East Kimberly region at the northern end of the Canning Stock route which runs 1,850 kilometres through the Great Sandy Desert; and the only real town for 600 kilometres along that section of the Great Northern Highway.
Almost 14 years ago, on Saturday night 15 March 2008, Mr Johnson was driving along Welman Road on the outskirts of Halls Creek. He was stopped by a police officer. Mr Johnson refused a breath test. He was charged with the offence of failing to comply with a requirement to provide a sample of his breath for analysis under s 67(2)(a) of the RTA.
The Prosecution Notice issued under sch 1 of the Criminal Procedure Act 2004 (WA) identifies the 'Prosecutor' as the 'Western Australia Police Force'. According to the brief 'Statement of Material Facts', Mr Williams appears to have been the 'Investigating Officer'. Mr Williams thereby became the respondent to this appeal. Mr Williams is thus merely the vehicle by which, under the statutory scheme, Mr Johnson was prosecuted for the offence he committed. In reality, 'Mr Williams' is the Western Australia Police Force. In these reasons, I use the term 'State' to refer to the respondent and more generally to the State of Western Australia in its various manifestations.
On Monday 17 March 2008, Mr Johnson pleaded guilty to the charge before two Justices of the Peace in the Magistrates Court at Halls Creek. They fined Mr Johnson $2,000 and ordered that Mr Johnson be permanently disqualified from holding a driver's licence. In other words, as the Prosecution Notice itself records, Mr Johnson's disqualification was for 'life'.
Mr Johnson lives some five kilometres from the remote township of Halls Creek. Since his disqualification, he has had to walk each day into the town.
Mr Johnson lodged this appeal under the Criminal Appeals Act2004 (WA) on 19 August 2021. Mr Johnson appeals against his 'disqualification for life' on the basis that it was manifestly excessive.
It is clear beyond argument that the penalty was excessive and manifestly unjust. Should authority be required for that conclusion, I note the discussion and observations of Barker J in Jackamarra v Orr, which I respectfully adopt without repeating.[2]
[2] Jackamarra v Orr [2003] WASCA 278; (2003) 40 MVR 132.
In light of that background, it is important to articulate what this case is about. At one level, of course, it is just a case about one person's loss of a driver's licence. But in truth, it is about the unjustifiable and excessive use of executive power by the State against an Indigenous man living in one of the most remote regions in Australia, for whom the inability to drive a car, for the rest of his life, is a source of real hardship.
The State to its credit, concedes that Mr Johnson suffered an injustice by the imposition of a permanent disqualification. The legislation required Mr Johnson to appeal within 28 days of 17 March 2008. Mr Johnson took over 13 years to appeal the unjust penalty imposed on him. The dispute before the court relates to whether Mr Johnson should be permitted an extension of time to complain about the injustice. In that regard, the State is surprisingly indifferent to the gulf between life on St Georges Terrace and the Canning Stock Route.

Relevant history of driving offences

Mr Johnson's driving history at the time of his conviction is of some importance.
On 21 July 1984, Mr Johnson was convicted of driving under the influence. He was fined $400 and disqualified from holding a driver's licence for six months. On 26 September 1987, Mr Johnson again offended by driving under the influence, and also on that occasion, for driving without a driver's licence. On 29 September 1987, in the Court of Petty Sessions in Kununurra, he was fined $800 and disqualified from holding a driver's licence for two years.
Mr Johnson committed no further motor‑vehicle related offences for over 20 years until 27 March 2005, when he offended by driving with a blood alcohol content in excess of 0.08% but less than 0.10% in breach of s 64(1) of the RTA. On 30 March 2005, the appellant was convicted, fined $800, and disqualified from holding or obtaining a driver's licence for six months.
Mr Johnson committed no further motor vehicle offences until three years later when, as explained above, on Saturday night 15 March 2008 he was stopped for a breath test, which he refused. Other than that refusal, there is no evidence of anything untoward about the manner of his driving.
Mr Johnson's motor vehicle offences did not end there. On 20 March 2009, he offended by driving without authority in breach of s 49(1)(a) and s (3)(c) of the RTA. The appellant was convicted on 27 March 2009, fined $1,000 and disqualified from holding or obtaining a driver's licence for twelve months.
On 23 April 2012, the appellant again offended by driving without authority. He was convicted on 7 May 2012, fined $1,000 and disqualified from holding or obtaining a driver's licence for nine months.
The aggregate period of disqualification arising from the additional offences of 2009 and 2012 is thus 21 months. It was common cause between the parties that under s 49 of the RTA, those periods must be served cumulatively. That is, the 21 months' disqualification will only begin to run upon the termination of Mr Johnson's present 'permanent' disqualification arising from the offence of March 2008.
Mr Johnson has no record of any offence since he was convicted of driving without authority in April 2012. That is a period of almost 10 years.

The offence of March 2008

The circumstances of the offence have already been set out above.
As already noted, the matter came before two Justices of the Peace in the Magistrates Court at Halls Creek on 17 March 2008. It appears that Mr Johnson was represented on the day by a lawyer from the Aboriginal Legal Service. At the time of the relevant offence, the available sentences for the relevant charge pursuant to s 67(3) of the RTA were as follows:
A person convicted of an offence against this section is liable -
(a)for a first offence, to a fine of not less than 16 PU or more than 50 PU; and the court convicting that person must, in any event, order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 3 months;
(b)for a second offence, to a fine of not less than 30 PU or more than 70 PU; 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 2 years;
(c)for any subsequent offence, to a fine of not less than 40 PU or more than 100 PU or to imprisonment for 18 months; and, in any event, and the court convicting that the person shall order that he be permanently disqualified from holding or obtaining a driver's licence.
In short, a permanent disqualification was only prescribed for a third offence. For first and second offences the RTA prescribed a minimum period of disqualification of three months and two years respectively.
In 2008, s 105 of the RTA provided, in effect, that when assessing the number of previous offences for the purposes of s 67(3), regard could not be had to offences that were committed more than 20 years prior to the relevant offence.
It follows that Mr Johnson's drink‑driving offence of 29 September 1987 could not be regarded as a previous offence for the purposes of assessing the relevant penalty under s 67(2) of the RTA in March 2008. By reference to his relevant history, it appears that Mr Johnson ought to have been sentenced on the basis of a second offence by reason of his drink‑driving conviction of March 2005. It follows that the relevant penalty for the offence committed on 15 March 2008 was a fine of not less than 30 PU or more than 70 PU (i.e. $1,500 - $3,500); and, in any event, a disqualification from holding or obtaining a driver's licence for a period of not less than two years.
As will be explained below, no transcript is now available (if it ever was) of the hearing before the two Justices of the Peace in Halls Creek on 17 March 2008. In addition, the Aboriginal Legal Service has not been able to identify any records that might shed further light on what occurred. It is therefore unclear whether the Justices of the Peace imposed a permanent disqualification on Mr Johnson by mistakenly believing it was his third relevant offence or because they believed it was an appropriate penalty for a second offence.
Mr Johnson swore two affidavits in support of his appeal; one on 18 August 2021 and a further affidavit on 2 February 2022. An affidavit was also sworn by his lawyer, Ms Sarah King on 18 January 2022. The evidence in those affidavits was unchallenged and provides the following background.
Mr Johnson recalls going to court on 17 March 2008. He recalls being represented by someone from the Aboriginal Legal Service at the hearing.[3] Mr Johnson says he was advised that a third offence would attract a 'life disqualification' and that was the penalty he expected to receive that day.[4] It appears that on the basis of advice he received, he thought that 'life disqualification meant 10 years'.[5]
[3] Affidavit of Anthony Desmond Johnson (18 August 2021) [1].
[4] Affidavit of Anthony Desmond Johnson (18 August 2021) [2].
[5] Affidavit of Anthony Desmond Johnson (18 August 2021) [2].
It is not difficult to understand how advice given to Mr Johnson would have created that impression. Under s 78 of the RTA as it then was, an application could be made for removal of the disqualification after 10 years. The equivalent provision now appears in s 24 of the Road Traffic (Authorisation to Drive) Act 2008 (WA). Mr Johnson's understanding that his disqualification was for 10 years, was reasonable in the circumstances.

Events following Mr Johnson's permanent disqualification

However that impression arose, the unchallenged evidence is that Mr Johnson believed his disqualification would last for 10 years from 17 March 2008. The evidence discloses that on 19 March 2018, that is within three days of the expiration of the 10 year period, Mr Johnson sought advice from Legal Aid in Kununurra to have his disqualification removed. He had further appointments with Legal Aid for that purpose on 26 March, 3 April, 20 November and 5 December 2018 and then again on 8 November 2019, 24 June, 20 August and 15 October 2020, and 19 April and 14 May 2021. Mr Johnson does not appear to recall precisely when during that period, but at some point, he says he felt frustrated with the slow pace of his efforts through Legal Aid, so he went himself to the Court House in Halls Creek.[6] The staff there promptly sent him back to Legal Aid.[7] He asked the court in Halls Creek for documents relating to his 2008 conviction and was told the court did not have any.[8]
[6] Affidavit of Anthony Desmond Johnson (2 February 2022) [6].
[7] Affidavit of Anthony Desmond Johnson (2 February 2022) [6].
[8] Affidavit of Anthony Desmond Johnson (2 February 2022) [6].
There is scant evidence as to what occurred between the appointments with Legal Aid. In circumstances where an Indigenous man who cannot drive is living five kilometres from Halls Creek and seeking advice and representation from Legal Aid in Kununurra more than 350 kilometres away, it is not difficult to appreciate that there may be long gaps, particularly when a person is confronted with the frustrations I have referred to above.
Eventually, after a number of appointments with Legal Aid it appears that a view was taken on Mr Johnson's behalf that an error had been made in the imposition of the permanent disqualification on 17 March 2008, because it appeared that he had been sentenced on the basis that he was a third time offender when, in truth, he was not. On that basis, in early June 2021, an application was made to the Magistrates Court under s 37 of the Sentencing Act 1995 (WA), seeking to have the order imposing the sentence of permanent disqualification recalled. That application came before her Honour Magistrate Ridley in the Magistrates Court at Halls Creek on 4 August 2021.
The legislation prescribed only a minimum period of disqualification, not a maximum. Therefore, the learned magistrate considered that the sentence of permanent disqualification was available under the RTA. On that basis the learned magistrate concluded that she could not be satisfied the error had been made, observing:
It's just as likely, in my view and my experience with Justices of the Peace, that the matter was argued and they determined to go their own way and impose those sentences which are available to them in any event; one of the problems with the system as it existed for a very long time in my view.
Put bluntly, the learned magistrate's view based on her experience was that it was likely the Justices of the Peace in Halls Creek were aware that it was not Mr Johnson's third offence, but nevertheless thought a permanent disqualification was appropriate.
The learned magistrate expressly observed that if the permanent disqualification was 'available' but 'imposed incorrectly', then it was a 'matter for appeal'.[9]
[9] Transcript, Western Australia Police v Johnson, Magistrates Court of Western Australia at Halls Creek, 4 August 2021, 9.
Mr Johnson filed his appeal with this court just 15 days later, on 19 August 2021.
Notwithstanding some lack of precision about the events that transpired since 17 March 2008, what emerges clearly is the following:
(a)when Mr Johnson went to the Magistrates Court to plead guilty on 17 March 2008, on the basis of advice, he expected to receive a 'life' disqualification, which is what indeed happened;
(b)Mr Johnson quite reasonably believed on the basis of the advice he had received that the period of 'life' was 10 years;
(c)within three days of the expiration of 10 years, he had an appointment with the Legal Aid office in Kununurra;
(d)notwithstanding some frustrations and the obvious difficulties of his circumstances, Mr Johnson persisted with some consistency in his attempt to obtain legal assistance to have his disqualifications removed;
(e)eventually, in early June 2021, Mr Johnson with representation by Legal Aid brought an application to have the sentence recalled under s 37 of the Sentencing Act which came before the Magistrate at Halls Creek on 4 August 2021;
(f)the application was unsuccessful because the learned magistrate considered that the permanent disqualification was available under the RTA, but that if it had been imposed incorrectly, then that was a matter for appeal; and
(g)Mr Johnson lodged his appeal two weeks later.

Extension of time

The State opposed the application to extend time in which to bring the appeal. By reference to decisions of the Court of Appeal the State set out the principles governing an extension of time in its submissions as follows:[10]
[10] Petrusic v State of Western Australia [2020] WASCA 62 [31] (Mazza, Beech & Vaughan JJA); Wimbridge v Western Australia [2009] WASCA 196 [19] ‑ [26] (Wheeler JA), [42] ‑ [49] (Buss JA); EXF v Western Australia [2015] WASCA 118 [5] ‑ [8] (Hall J, Martin CJ & Buss JA agreeing); City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [16] ‑ [17] (Wheeler JA; Martin CJ & Buss JA agreeing).
There are four principal factors in determining whether an extension of time ought to be granted. Those factors are:
a)the length of the delay,
b)the reason for the delay,
c)the prospects of the applicant succeeding in the appeal; and
d)the extent of any prejudice to the respondent.
With respect to the length and reason for the delay, these must be addressed by the appellant and the requisite cogency of the explanation increases as the period of the extension sought increases.
Where there has been a lengthy delay, an appellant must show exceptional circumstances unless it is demonstrated that there will be a miscarriage of justice if the extension is not granted. However, the fact that an appeal has some prospect of success is not determinative, but rather is a factor which is to be taken into account, together with all other relevant factors.
With respect to prejudice, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted.[11]
[11] Respondent's Outline of Submissions (29 December 2021) [16] ‑ [19].
The State submitted that there was insufficient material to explain the delay and that in any event, Mr Johnson had failed to provide 'highly cogent and substantial reasons' for the grant of an extension of time.[12] In those circumstances, the State insisted that no extension of time should be granted and the appeal ought to be dismissed.
[12] Respondent's Outline of Submissions (29 December 2021) [27].
It is appropriate to make a number of observations regarding the State's opposition to the extension of time.

The principles set out by the State by reference to decisions of the Court of Appeal may of course be accepted as correct. Those principles are an important, but non-exhaustive list of factors in the service of the broader objective of the interests of justice. The broad question in each case must be whether it is in the interests of justice to grant the extension and there is no rigid formula that necessarily constrains the manner in which that task is approached.[13]
[13] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108].
That said, it is well settled (as the State correctly submitted) that where there has been lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: BPR v The State of Western Australia.[14]
[14] BPR v The State of Western Australia [2007] WASCA 41.
In its written submissions, the State directed attention to various cases in which differing periods of delay - all less than 13 months - resulted in the refusal of an extension of time. The State concluded on that basis:
In each of these cases, the delays in issue were substantially less than the 13 year delay in the present appeal. If a delay of five months can be described as 'lengthy', then a delay of 13 years is extraordinary.[15]
[15] Respondent's Outline of Submissions (29 December 2021) [26].
As has already been noted, the broad question is whether the extension of time serves the interests of justice. Justice is not achieved through the application of comparative data produced by electronic search engines. Rather, justice is achieved through the application of legal principle through the lens of the human mind, attentive to an individual's particular circumstances.
In that regard I return to the principle that where there has been lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
In my view, the circumstances I have outlined above in relation to Mr Johnson constitute exceptional circumstances. The disadvantages that confront him are plain. Given those circumstances, his reason for waiting 10 years is quite understandable. His efforts thereafter in persevering with the matter reflect an unrelenting commitment to do what was possible to address an unjust predicament as best he could.
But even if the circumstances are not exceptional, it is difficult to characterise the manifestly unjust penalty imposed by the State as anything less than a miscarriage of justice. The vast distances of the East Kimberly and the paucity of public transport services renders transport by private vehicle the only viable option for travel. This is all the more so for someone who lives five kilometres from the only town along the 600 kilometre stretch of the only highway in the region. The impact on Indigenous Australians of reliance on private motor vehicle transportation is well known, if inadequately addressed.[16]
[16] See, for example F McGaughey, T Pasca and S Millman, 'The Road Ahead: Driver's licensing and the over-incarceration of Aboriginal people in Western Australia' (2018) 43(3) Alternative Law Journal 184, 184 ‑ 191.
The State contends that no miscarriage of justice will occur. The State submitted that a miscarriage of justice will only occur if something grave such as a wrongful prison sentence is involved. Here, the State insisted that there was no miscarriage of justice because Mr Johnson has the ability to apply to the District Court to have his licence disqualification removed pursuant to s 24 of the Road Traffic (Authorisation to Drive) Act as more than 10 years has elapsed since the permanent disqualification was imposed.
In response, it was pointed out on behalf of Mr Johnson that such an entitlement fails to cure the injustice. This is because the removal of the disqualification will trigger the further 21 months of disqualification imposed on Mr Johnson by his subsequent convictions for driving without authority. Had a just sentence been imposed on Mr Johnson in 2008, those periods of disqualification would have been served long ago. The injustice can only adequately be cured by granting the appeal and resentencing Mr Johnson with a just penalty that operates retrospectively so that the further 21 months of disqualification will have expired.
The State contended in reply that Mr Johnson's difficulty of the further 21 months of disqualification can be addressed by Mr Johnson making an application in the Magistrates Court for an extraordinary licence. The State presumably contends that such an application enjoys reasonable prospects of success if Mr Johnson can demonstrate the necessity to drive and meets any other requirements of such an application.
In addition, the State contended that it will suffer prejudice if the court adopts the course urged by Mr Johnson, that is, to grant the appeal and impose a new penalty retrospectively so that the further period of disqualification will have expired. The prejudice is said to arise because of potential litigation against the State by reason of Mr Johnson's convictions for driving without authority. The State complains that such a consequence may arise if the effect of the successful appeal is that Mr Johnson would indeed not have been disqualified from holding a driver's licence at the time that he received those convictions. Counsel for the State referred to the decision in Tubbs v Pomykaj.[17]Counsel for Mr Johnson submitted that on the authorities as she understood them, particularly, Edwards v Simpson,[18] no such claim would be available to Mr Johnson.
[17] Tubbs v Pomykaj [2009] WASC 379.
[18] Edwards v Simpson [2018] WASCA 177; (2018) 86 MVR 141.
That issue of prejudice raised an interesting point of law. Whatever the correct position as a matter of law, I am entirely certain that it is of no interest whatsoever to Mr Johnson. Mr Johnson just wants a driver's licence.
It is appropriate that I summarise in plain terms the position adopted by the State:
(a)the State quite properly accepts that the penalty imposed on Mr Johnson was excessive and manifestly unjust;
(b)notwithstanding the State's acceptance that Mr Johnson has been the subject of an excessive and unjust exercise of state power, the court should reject his appeal because of the length of time he has taken to bring the application;
(c)the court should refuse Mr Johnson's application to extend time, because he does not meet the requirements of 'extraordinary circumstances';
(d)the State accepts that even in the absence of extraordinary circumstances, an extension of time ought to be granted if there has been a miscarriage of justice;
(e)however, the State contends that there has been no miscarriage of justice, because Mr Johnson can now apply to the District Court to have his disqualification removed under s 24 of the Road Traffic (Authorisation to Drive) Act;
(f)the State accepts that even if Mr Johnson is successful in an application to the District Court, it will trigger a further 21 months of disqualification. However, the State contends that problem can be cured by Mr Johnson also making an application to the Magistrates Court for an extraordinary licence;
(g)the State contends that the availability of the applications to the District Court and the Magistrates Court means there is no miscarriage of justice to Mr Johnson arising from the excessive and unjust exercise of state power to his detriment; and
(h)an extension of time should also not be granted because the State will suffer prejudice by the prospect of proceedings against it if the court adopts the remedy urged on behalf of Mr Johnson.
In short, the State opposes the extension of time to allow Mr Johnson to appeal against the exercise of excessive and unjust state power because:
(a)there is no miscarriage of justice as Mr Johnson, living five kilometres from Halls Creek and without the lawful ability to drive a motor vehicle, can bring simultaneous applications before the District Court and the Magistrates Court which may be successful; and
(b)the State may suffer prejudice as a consequence of its own exercise of excessive power due to the possibility of speculative litigation which Mr Johnson has never threatened and which his own counsel has disavowed.
With considerable judicial restraint, I would characterise the State's position as surprising and unfortunate.
I observe also that s 24(10) of the Road Traffic (Authorisation to Drive) Act provides:
Nothing in this section is to be construed as limiting or otherwise affecting any right that a person may have to appeal against an order or judgment of a court disqualifying the person from holding or obtaining a driver's licence.
The State contended that the provision was not applicable. I do not accept that is correct. But ultimately, I do not need to decide the point because in my view the interests of justice plainly require time to be extended to permit Mr Johnson to bring his appeal independently of the application enabled by s 24 of the Road Traffic (Authorisation to Drive) Act.
I should observe also that there is something rather incongruous about the exercise of a discretion to extend time in the context of the timeless vastness of the Kimberley region. Notwithstanding its aspirations for a sense of the eternal, the Judeo‑Christian conception of time in the governance of human affairs is decidedly linear: '[t]o every thing there is a season and a time to every purpose'.[19] A growing body of literature has enabled an appreciation of a different conception of time and time 'limits' that has evolved in the ageless expanses of Aboriginal civilisation. Happily, there is no necessity to grapple with those cultural differences. The law in Western Australia is sufficiently flexible and sensitive to personal circumstance and cultural context to accommodate Mr Johnson's predicament in the pursuit of the ultimate objective of the law: the achievement of justice.
[19] Ecclesiastes 3:1.
For the reasons I have given, the interests of justice require that Mr Johnson be permitted to commence his appeal on 19 August 2021, leave to appeal be granted pursuant to s 9(1) of the Criminal Appeals Act, and that the order of the Magistrates Court at Halls Creek of 17 March 2008 imposing a permanent disqualification on Mr Johnson from holding a driver's licence, be set aside.
Section 14 of the Criminal Appeals Act stipulates that in deciding an appeal the Supreme Court may do a number of things, including 'substitute a decision that should have been made by the court of summary jurisdiction'. In my view, the decision in respect of Mr Johnson's disqualification that should have been made is a disqualification for a period of 30 months (that is two and a half years). Consistently with the approach taken by Barker J in Jackamarra v Orr, that period is to take effect from 17 March 2008.[20]
[20] Jackamarra v Orr [47].

Orders

(a)Leave is granted to the appellant to commence this appeal on 19 August 2021.
(b)Leave is granted to the appellant to appeal on the ground set out in the appellant's appeal notice dated 19 August 2021.
(c)The order of the Magistrates Court at Halls Creek dated 17 March 2008 that the appellant be permanently disqualified from holding or obtaining a driver's licence, be set aside.
(d)In lieu thereof, the appellant be disqualified from holding or obtaining a driver's licence for 30 months from 17 March 2008.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
15 MARCH 2022