Abraham v Commissioner of Police

[2015] QDC 170

[2015] QDC 170

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE REID

No 4858 of 2014

AL ABRAHAM  Applicant

and

COMMISSIONER OF POLICE  Respondent

BRISBANE

12.47 PM, TUESDAY, 2 JUNE 2015

JUDGMENT

.

HIS HONOUR:   The applicant applies for an order that the disqualification of his driver’s licence be revoked.  The order revoking his licence absolutely was made by his Honour Judge O’Brien, as his Honour then was, on the 29^th of March 2004.  The applicant was born the 28^th of November 1978, so he’s now 35 years of age.  He was 25 when he was so disqualified. 

He has an appalling criminal and traffic history. Perusal of that history indicates that, amongst his numerous offences: 

1. he committed offences of unlicensed driving on the 26^th of March 1996, the 16^th of October 2002 and the 15^th of November 2002; and of dangerous driving on the 8^th of December 2002, and of disqualified driving on the 27^th of November 2005; 

2. he committed numerous criminal offences of unlawful use of a motor vehicle in 1995, 1996, 1997, 1999, 2000, 2002, 2003 and six such offences between March 2006 and June 2006 together with offences of dangerous operation of a motor vehicle and drug offences; 

3. numerous offences of dishonesty between 1994 and 1997, robbery in November 1999, armed robbery in company on about the 22^nd of March 2006, the 6^th of April 2006 and the 17^th of June 2006 and seven burglaries between September 2002 and March 2006.

He was in March 2004, in addition to the disqualification of his licence, sentenced to five years’ imprisonment suspended after he’d served two with an operational period of five years.  279 days of pre-sentence custody was declared.  I calculate he would have been released about mid-2005.  It is clear he then reverted to the ways of crime to which I’ve briefly referred in the period up to the 28^th of June 2006.  He was at that time imprisoned and was so imprisoned at the time of his sentence on the 25^th of January 2010.

On that day, he was sentenced to a head sentence of nine years’ imprisonment which included activation of a further one year of the suspended sentence imposed in 2004.  The offence of armed robbery in company for which he was given eight years’ imprisonment was declared a serious violent offence.  1307 days, equivalent to about three years and seven months, of pre-sentence custody was declared as time served.  An appeal with respect to his conviction and sentence in respect of that matter was successful.  Subsequently, on the 29^th of April he pleaded guilty to those offences.  He was sentenced to an earlier period of imprisonment of three years cumulative on sentences imposed in January 2010, which were not subject of the appeal.  A parole eligibility date of the 29^th of April 2012 was ordered.  He was in fact in prison until his release on the 13^th of August 2013 (see court report dated 19 May 2015).

He was thus in prison from the 28^th of June 2006 until his release in August 2013, a period in excess of seven years of actual imprisonment.  Importantly, he’s been convicted of no offences in the ensuing 21 months since his release.  It is to his credit that he has avoided descending into his past criminal ways over that period. 

How has he done so?  The material reveals he has actively sought to rehabilitate himself.  He says in an affidavit of the 4^th of February that his lengthy incarceration:

…made me realise that life is too short to have lived like I once had.  Since my release, I have abstained from using drugs and drinking alcohol and … I am having drug and alcohol counselling.

The court report prepared by his probation and parole officer indicates his parole is due to expire on the 26^th of June 2015.  Apart from one urine analysis which returned a positive test to cannabis in January 2014, all urine analysis and breath tests have been negative.  The most recent was on the 7^th of May this year.  The report also indicates he’s consulted a psychologist at Goodna on four occasions, attended Drug Arm in June 2014 and has been attending counselling with Catholic Prison Ministries.  He also completed a QCS Ending Offending program in December 2013.

A letter from Drug Arm indicates he first attended five sessions of the community and family support service from the 5^th of February to the 13^th of June 2014 and “worked extremely well with his workers and towards his treatment goals”.

A letter of Philip Dodds, a reintegration support worker with Catholic Prison Ministries, of the 24^th of April 2015 was also relied on by the applicant.  That letter indicated that the applicant had approached Catholic Prison Ministries for support to prevent relapse in October 2014.  The letter speaks of the fact that the applicant has been able “to stay out of trouble for the longest period of his life” and of the fact he has never in the past successfully completed a parole period.  It seems inevitable that he will do so in respect of the significant sentences earlier imposed, which I’ve referred to.  The letter refers to his desire to seek counselling with a psychologist, Tanya Eliasson, of Browns Plains but of his inability to do so unless he has a drivers license.

He currently works about 10 hours per week with Nudae Stock Foods.  In a letter of the 5^th of October 2014 that business indicated that from the 25^th of November 2014 he could be offered a further 25 hours of work per week if he had a licence.  An affidavit of the 1^st of June 2015 by a director of that business confirmed that “letter of employment to this affidavit is true and correct”.  I take it that that is an assertion that the offer of increased employment in the letter of October attached to the applicant’s own affidavit is still available.

In submissions the respondent submits that:

The community expectation is such that the court should exercise a substantial degree of caution in considering the return of the Applicant’s driver’s licence.

It also submits that because much of the period of time since his disqualification has been spent in prison, he “has experienced a limited disadvantage of the disqualification, due to this period being served while in custody”.  It is submitted that removal of the disqualification “would place members of the public at significant risk” and that there is no information that his drug issues have been addressed.  The respondent seeks further evidence he has addressed those issues and is no longer a potential danger to the community.

To some extent those submissions have been addressed in further material tendered before me.  For the first time in his life the applicant when in the community has not engaged in criminal conduct over a lengthy period, 21 months since his release in August 2013.  He has, and has had since November 2014, the offer of employment for 35 hours per week, rather than the 10 he currently works, if he has a licence.  He’s made very significant attempts to rid himself, and, consequently, the community, of the curse of his taking drugs.  There is no doubt that there is a strong negative relationship between unemployment and criminal behaviour.  I’m sure there is a similarly relationship, if it were investigated, between underemployment and such behaviour.  In my view, there can be no doubt that the risk to the community is best reduced by facilitating his return to fulltime work.  That is best achieved by revoking the absolute disqualification imposed earlier.

It is, in my opinion, unfortunate this matter was not addressed more quickly after the letter offering the applicant fulltime employment in October 2014.  It is, in my opinion, incumbent on the respondent when considering these matters to properly consider issues of public interest having regard not merely to punishment of offenders, but giving proper consideration to genuine attempt at rehabilitation, such as the applicant has here undertaken.  There is no doubt risk associated with allowing the applicant to fully integrate with the community.  He is, after all, a long-term criminal and user of drugs, but there is also a clear risk associated with not allowing him to do so.  In my opinion, to deprive the applicant of the opportunity to obtain his licence and so increase his hours of employment very clearly increase the risk of his re-offending.

The discretion under section 131(2) of the Transport Operations (Road Use Management) Act 1995 (Qld) and the factors referred in subsection (6) thereof together with my assessment of the risks and benefits of reinstating his licence leave me in no doubt that the application ought be allowed. Accordingly, I order that the absolute disqualification of the applicant’s licence imposed on the 29^th of March 2004 be revoked. 

The applicant should be aware that the order I’ve made does not have the effect of reinstating his licence.  I am not empowered to do so.  He will need to apply for and obtain a licence in the usual way through the appropriate channels and should be aware that he cannot drive until he has done so and then only in accordance with the licence that he holds.  It is important he complies with all restrictions that will be placed upon him during the period that he is applying and then obtaining a provisional licence, because if he fails to do so, it is likely that he will commit offences and, with his record, might suffer significant consequences.

Okay.  So that means you can apply for a licence again, effectively but it doesn’t mean that I can give it to you.

APPLICANT:   Thank you.

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