| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TAYLOR -v- DIRECTOR GENERAL OF TRANSPORT [2010] WADC 145 CORAM : KEEN DCJ HEARD : 23 AUGUST 2010 DELIVERED : 1 OCTOBER 2010 FILE NO/S : MCD 4 of 2010 MATTER : Section 76 of the Road Traffic Act 1974 BETWEEN : DEREK JUTE TAYLOR Applicant
AND
DIRECTOR GENERAL OF TRANSPORT
Respondent
Catchwords: Criminal law - Driving offences - Application for extraordinary licence - Exercise of discretion Legislation: Road Traffic Act 1974 Result: Application dismissed
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Representation: Counsel:
Applicant : Ms C A McKenzie
Respondent : Mr N T L John
Solicitors:
Applicant : McKenzie and McKenzie
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Damianopulos v Director General of Transport, unreported; SCt of WA; Library No 970513; 7 October 1997
Italiano v Director General of Transport [1999] WASCA 40
R v McGee (2008) 190 A Crim R 521
Stonehouse v Commissioner of Police, unreported; SCt of WA; Library No 5669; 5 October 1984
Taylor v State of Western Australia [2009] WASCA 226
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In the matter of s 76 of the Road Traffic Act 1974 and in the matter of an application by Derek Jute Taylor for an order to issue an extraordinary motor driver's licence 1 The applicant has applied pursuant to s 76 Road Traffic Act 1974 (the Act) for an order directing the Director General to issue an extraordinary driver's licence to the applicant
The prior conviction 2 On 18 February 2009 the applicant was convicted after trial before a jury of one count of dangerous driving causing grievous bodily harm (count 1) and one count of dangerous driving causing death (count 2). 3 On 8 April 2009 the applicant was sentenced to a term of immediate imprisonment in respect of count 1 for 14 months and in respect of count 2, 26 months to be served concurrently. In addition, he was disqualified from holding or obtaining a motor vehicle driver's licence for two years on each count. Such disqualifications run concurrently. 4 On 17 December 2009 the Court of Appeal (Taylor v State of Western Australia [2009] WASCA 226) reduced the sentence of imprisonment in respect of count 2 to 1 year 8 months, but otherwise did not disturb the other penalties imposed.
Background to the conviction 5 The relevant offending occurred on 23 July 2007. 6 In the Court of Appeal the facts were set out by her Honour Wheeler JA as follows: "4. On Monday, 23 July 2007, the appellant drove to Perth from Kalgoorlie with friends, to spend a week in Perth and celebrate a friend's birthday. On 28 July, they went to Chloe Schoppe's house in Rockingham. The appellant was at that time approximately 18½ years old. He was the designated driver and so he did not drink any alcohol that evening. A little after midnight, the appellant was driving a car with some of his friends as passengers, including the deceased girl. The vehicle he was driving was not his own vehicle, and had, apparently unknown to the appellant, four bald tyres. At or near a set of traffic (Page 4)
lights on Mandurah Road, a Holden Commodore driven by Mark Archer pulled up to the left of the vehicle driven by the appellant. Mr Archer revved his engine in what the learned sentencing judge accepted was an invitation to a drag race. 5. The appellant accepted the invitation to race. The area was dark, it had been raining lightly and the road was wet. During the drag race, the appellant reached a speed of about 120 km per hour, but then slowed to about 90 km per hour. The speed limit in the area was 80 km per hour. 6. The race lasted a very brief period of time. The whole event lasted no more than about 90 seconds. 7. It appears that the two vehicles may have touched briefly, probably as a result of Mr Archer moving around a vehicle pulled up on the roadside. Both drivers lost control of their vehicles and left the road. They were slowed by vegetation before coming to a stop. When the appellant's vehicle came to a stop, it was immediately apparent that Chloe Schoppe was not in the vehicle. She had not been wearing a seat belt and was thrown from the vehicle. She died at the scene of the accident as a result of head injuries. She was 16 years of age. It is clear from the victim impact statement of her father that, as one would expect, the effect of her death has been devastating." 7 The court also noted the learned sentencing Judge's remarks in relation to the case as follows: "14. There were, as the learned sentencing judge noted, a number of serious aspects of the case. They included the accepting of Mr Archer's invitation to race, coupled with the fact that the appellant knew, or should have known, that he was a relatively inexperienced driver, the fact that the road was wet, and the fact that he had accepted responsibility for the passengers in his vehicle. However, there were a number of features of the appellant's conduct which suggested that his behaviour was not at the higher end of culpability. He was sober, and there was no (Page 5)
suggestion that, prior to the decision to race, his driving had been other than appropriate. Although he was speeding at the time of the accident, he was in excess of the speed limit by something of the order of 10 km per hour; this is not, compared to the many very serious speeding cases which result in death, an example of extreme speed. The period of bad driving, although deliberate, was extremely brief. Other than his speed, there was apparently no other feature of the appellant's driving which was dangerous." 8 The learned sentencing Judge had noted that the applicant was deeply ashamed of his behaviour and was remorseful. That and his youth, he was only 18 at the time of the offending, were taken into account in sentencing. The Court of Appeal noted that the conduct was not the most serious of its kind or even towards the upper end of the range of possible dangerous driving. 9 The learned sentencing Judge referred to the accident having occurred while "drag racing". The facts as noted by the Court of Appeal seem to suggest that on the appeal no issue was taken with that description. 10 The applicant's disqualification from holding a motor vehicle driver's licence did not commence to run until he was released from prison, that is on 25 February 2010 and so he would not, but for other matters to which I will come, have been eligible to apply for a licence until 25 February 2012.
The evidence on the present application 11 The applicant was born on 11 November 1988. He is 21 years old. 12 The applicant supported his application with an affidavit sworn by him on 23 June 2010 and also by oral evidence on the hearing of the application. 13 Relevantly, in his affidavit the applicant deposed to being employed as a heavy-duty diesel mechanic by DG Boyes Mechanical in West Kalgoorlie. He is limited to work in the workshop and not on site doing field service. 14 In cross-examination the applicant said he worked seven days a week on 12-hour shifts and was paid $40 per hour which on those hours would (Page 6)
equate to $3,360 per week before tax. He said that sometimes he earned more. 15 The applicant deposed to owing $54,500 to his mother who had taken out a loan to pay out his car and motorcycle loans and to pay his legal fees. He repays her at the rate of $500 per fortnight and said that he would like to increase this to $1,000 per fortnight. Nevertheless, in cross-examination he said that they were both managing at the existing level. 16 In evidence he said that he had now purchased a home with the aid of a mortgage of $395,000 which involved repayments of $2,500 per month due to start immediately. He said in evidence that as a consequence his financial position was that he needed more money "I suppose". 17 In evidence he said that if granted an extraordinary driver's licence he could work as a field mechanic with his employer and earn more money and learn more. In cross-examination he said that he could have more responsibility and would earn between $42 and $46 per hour. 18 Evidence was led from Mr David Boyes, the manager of DG Boyes Mechanical, by affidavit sworn on 6 July 2010 and orally at the hearing. 19 In his affidavit Mr Boyes confirmed that the applicant was employed in the workshop on 21 April 2010 "with the intention of having him continue his employment in his usual role as a field service mechanic upon obtaining an extraordinary driver's licence". Mr Boyes went on to describe what that work would involve. 20 Mr Boyes deposed to the applicant being a valued employee who conducted himself in a reliable and trustworthy manner. 21 In evidence Mr Boyes confirmed the financial benefits of being a field service mechanic. He said it was very important for the applicant who had shown a maturity beyond his years and whose work ethic was "above and beyond". 22 Mr Boyes said the applicant would continue to be employed if he did not obtain an extraordinary driver's licence but if work tailed off he, being the last to be employed, would be the first to be laid off. 23 In his evidence the applicant dealt with the circumstances of the accident. He denied that he was drag racing and said that his vehicle was clipped from behind by a drunk driver and he slid off the road into the (Page 7)
bush. He said that his passenger was not wearing a seat belt and was thrown from the car and died. He disagreed with the remarks of the learned sentencing Judge that he was drag racing. 24 In cross-examination the applicant did not accept that his passenger died as a result of the speed at which he was travelling and, despite being asked a number of times, would not accept that it was his driving that had caused her death. 25 In his evidence the applicant dealt with other offences of exceeding the speed limit that he had committed both before and since 23 July 2007, being the date of the incident which led to his disqualification and imprisonment. 26 There were two offences prior to this incident and four thereafter. In respect of each he said that he was on the open highway or on a flat road overtaking other vehicles. 27 The penultimate of these offences was committed on 21 March 2008. He agreed that that took him to 12 demerit points leading to an automatic disqualification of his licence for three months. He avoided that disqualification by making the election under s 104J of the Act not to commit, during the year following, an offence as described in the section. Section 104K provides that if such a conviction is recorded, the period of disqualification is then doubled. 28 During this election period, on 4 January 2009, the applicant committed a further offence of exceeding the speed limit and so was disqualified for a period of six months. 29 There was no dispute that that period of disqualification will not commence to run until after the two-year period of disqualification imposed by this Court has expired, that is to say on 25 February 2012.
The legal framework 30 Section 76 of the Act provides that a person who is disqualified from holding or obtaining a motor vehicle driver's licence may apply for an order directing the Director General to grant an extraordinary licence. 31 The Court may, if it thinks proper, make or refuse such application. Section 76(3) prescribes that the Court may have regard to the following matters: "(a) The safety of the public generally; (Page 8)
(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 [the Court] refrains from making the order." 32 To the extent that the applicant relies on s 76(3)(f) the onus of proving hardship is on the applicant; Damianopulos v Director General of Transport, unreported; SCt of WA (Templeman J); Library No 970513; 7 October 1997. 33 In Stonehouse v Commissioner of Police, unreported; SCt of WA; Library No 5669; 5 October 1984 Pidgeon J noted in relation to the question of hardship and inconvenience that: "The nature of the offence, of course, does come into that area because the suspension is partly to protect the public and partly as punishment for the offence. The learned Magistrate must be very careful not to make orders that lessen the effect of the punishment. As I interpret the policy of the Act and the policy of the section licences of this nature ought to be hard to get and, if given, ought to be on a very limited basis. The Act is there to provide some alleviation in the area of employment if that becomes apparent to the Court." 34 In Italiano v Director General of Transport [1999] WASCA 40, McKechnie J at 16 said: "Section 76(3) sets out a number of factors to be considered. In my view the section gives rise to a mix of factors any one of which may, in a particular case, be decisive. In some cases the safety of the public may overwhelm all other factors. In another case the degree of hardship and inconvenience to the applicant and his family may be the dominant feature." (Page 9)
Findings 35 This case has some disturbing elements. The applicant in his evidence denied that the circumstance giving rise to the offence included "drag racing" the other motor vehicle. The applicant said that he was clipped in the rear by the other driver. 36 That denial is made in the face of the sentencing remarks made by the learned sentencing Judge. In those remarks (T21) his Honour referred to a Holden Commodore being next to the applicant's vehicle at or near traffic lights. In cross-examination the applicant's response to that remark was that there was no "black car" or Commodore. The colour of this other car had not been referred to when this passage of the sentencing remarks was put to the applicant. He said that the other vehicle clipped him from behind. 37 His Honour also made reference to the applicant accepting the invitation (to race) and engaging in "drag racing" (T21 – 22). 38 Those facts were echoed in the remarks of Wheeler JA on the appeal. The judgment of the Court of Appeal does not suggest that for the purposes of the appeal the facts relied upon by the learned sentencing Judge were wrong. The appeal appears to have been run on the basis that the sentence of imprisonment was manifestly excessive on other grounds (at 14 and 15). Further, in evidence the applicant said that he appealed because of error in sentencing in that someone else involved had received a lesser sentence. 39 The verdict of the jury that the applicant was guilty of these two offences is incontrovertible as to the elements of the offence, that is to say, put simply, that it was satisfied beyond reasonable doubt that the applicant had driven in a manner, and in this case at a speed, that was dangerous to the public or to any person and that the driving occasioned the grievous bodily harm to the other driver (count 1) and the death of the passenger (count 2). 40 It is not possible to know the route by which the jury came to those decisions or the facts that it found proved. 41 Accordingly, for the purposes of the present application it is arguable that it was open to the applicant to put forward for consideration of the Court a version of the facts which is inconsistent with the remarks of the learned sentencing Judge; see e.g. R v McGee (2008) 190 A Crim R 521 (Page 10)
and cases there referred to. I will come to that when having regard to the various factors set out in s 76(3) of the Act. 42 In a case such as this it is appropriate that I have regard to the safety of the public generally. 43 I have not been satisfied that the public safety would not be affected by the granting of an extraordinary driver's licence. These offences were of a kind that are the most, or some of the most, serious motoring offences that can be committed. They resulted in death and grievous bodily harm. I have noted where the Court of Appeal placed these particular offences in the range of possible dangerous driving. 44 The offences involved speed and came after two previous speeding offences. The inference that I draw from that is that at that time the applicant was attracted to speed or prepared to disregard it. 45 Even after this horrific event the applicant went on to commit three more speeding offences resulting in an immediate disqualification and having elected to take a final chance, within the next 12 months, committed a further offence. 46 All of this demonstrates to me that to this point in time the applicant had turned a blind eye to his responsibilities as a motorist. 47 It is well known and accepted that speeding is usually a factor in most traffic accidents and which cause untold injury and misery. Those who habitually speed are a danger to the public and a menace on the roads. 48 Those comments which I have made concerning the applicant's attitude were directed to that time. The applicant has since spent time in prison for his offending and the question is whether he has truly changed and matured so that he is no longer a risk to the community on the roads. 49 In evidence the applicant said that he would now be a lot more cautious on the road if granted an extraordinary driver's licence. The question is am I expected to take that statement at face value? The answer to that is no and I do not do so. 50 In evidence the applicant attempted to minimise all of this other offending by saying it occurred on country roads or flat roads when overtaking as if that was not serious. However, more importantly, despite the verdict of the jury the applicant still did not accept responsibility for (Page 11)
this girl's death when it was put to him in cross-examination. He either had no understanding of or insight into how such conduct, i.e. driving dangerously, can impact upon people or he deliberately denied responsibility in the mistaken belief that it would assist him in his application for an extraordinary driver's licence. 51 Further, that stance does not sit comfortably with the comment of the learned sentencing Judge that he was ashamed of his behaviour and remorseful. 52 In all the circumstances the applicant has not satisfied me that he would not be a risk to the safety of the public. Indeed, I am satisfied from his evidence that he lacks insight into the nature of his offending and as such he may pose a very real risk to the public. 53 There is no doubt that since coming out of prison the applicant has taken steps to settle into an industrious and more settled way of life. He has a good and responsible job and is obviously well thought of by his employer. He has purchased a home. He is described as having a maturity beyond his years. 54 Accordingly, there is nothing in his character, other than that to which I have referred about his insight into his offending, or in his conduct subsequent to his disqualification to prevent an extraordinary driver's licence being granted. Nevertheless as noted in Italiano (supra) these are but factors in the mix, any one of which may be decisive. It is a question of weighing one against the other. 55 I move on to the circumstances of the case. I have noted the applicant's denial that he was racing. Whilst there was no other evidence before me as to the circumstances of the offending, it is still necessary for the applicant, where he relies on the circumstances, to satisfy me on the balance of probabilities as to those circumstances that he advances. 56 The facts relied upon by the learned sentencing Judge did not appear to be challenged on the appeal and the applicant in evidence said that he appealed because the other driver received a lesser penalty. He had made no reference to the facts relied on by the learned sentencing Judge as being wrong. 57 I am not persuaded that those facts are wrong. I do not accept the applicant's evidence to this effect. It is another example of the applicant seeking to distance himself from responsibility for this accident to advance his own case for the grant of an extraordinary driver's licence. (Page 12)
58 In any event I am bound to accept the verdict of the jury that the applicant was driving in a manner (including speed) that was dangerous to the public and thereby occasioned the grievous bodily harm and death of these two people. 59 Finally, I turn to the degree of hardship and inconvenience that may result to the applicant or his family if the order is refused. 60 I cannot find any hardship or inconvenience to the family of the applicant. The only person who has been addressed is his mother. It is said that she is managing on the repayments that the applicant is making to her. 61 As to the applicant himself I am not satisfied that he would suffer any hardship or inconvenience beyond that which a disqualification will ordinarily involve. 62 The applicant is working and earning a good income, albeit from long hours. There is no suggestion that he cannot manage on that income or that he is falling into debt. Indeed he has taken on the responsibility of a mortgage presumably on the basis of his current income. 63 There is no evidence that the applicant will lose his job if not granted an extraordinary driver's licence. The evidence from the employer was that when he employed the applicant in April 2010 he knew that he did not have a motor vehicle driver's licence. There is a risk to that employment if there is a downturn in his area of employment, but that is not the present position. 64 What this application is designed to achieve is to enable the applicant to earn more money and maybe acquire more experience. That is not a hardship or inconvenience. 65 I do not accept the argument put forward on the applicant's behalf that not to grant the extraordinary driver's licence will hamper his prospects. His prospects were already limited by not having a motor vehicle driver's licence when he took on the job. That is not to say that he will lose the prospect of becoming a field mechanic at some time in the future. 66 Further, I do not accept the argument that the grant of an extraordinary driver's licence with stringent conditions attached would alleviate concern for the safety of the public. In a case such as this I have to be satisfied that there will not be a risk to the public safety before I (Page 13)
grant an order for the issue of an extraordinary driver's licence. All that conditions will do would be to restrict the time, area, circumstances and recording of the applicant's driving. It is how the applicant will drive that is the matter of concern in relation to the safety of the public. 67 In my view the character of the applicant insofar as it is favourable and his conduct since the disqualification are outweighed by the other factors to which I have referred. 68 As was noted in Italiano (supra) at 19, "a motor vehicle driver's licence is not a right, it is a privilege, the continued maintenance of which depends on avoidance of traffic offences". The applicant forfeited that privilege and I am not satisfied he should be allowed an extraordinary driver's licence which would minimise the punitive aspects of the disqualification which has only been in effect for six of the 24 months that were imposed.
Conclusion 69 The application is dismissed. 70 The applicant is to pay the Director General's costs of the application fixed at $800.
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