Baxter v The Queen

[2002] QDC 249

DISTRICT COURT OF QUEENSLAND

CITATION:	Baxter v The Queen [2002] QDC 249
PARTIES:	ANDREW PHILLIP BAXTER

Applicant

and

THE QUEEN

Respondent

FILE NO/S:	398 of 2002
PROCEEDING:	Application for Removal of Licence Disqualification
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	27 August 2002
DELIVERED AT:	Southport
HEARING DATE:	25 July 2002
JUDGE:	Newton DCJ
ORDER:	Application granted – period of disqualification reduced by 12 months – applicant permitted to obtain a driver’s licence on 7 January 2003
CATCHWORDS:	Criminal law – driving offences – dangerous driving causing grievous bodily harm whilst adversely affected by an intoxicating substance
Vehicles and traffic – licensing of drivers – application for removal of disqualification – s 131 of the Transport Operation (Road Use Management) Act 1995 – where original period of disqualification was five years – evidence of change of attitude by applicant towards his responsibilities as a motorist – evidence of financial difficulties of applicant arising since making of order of disqualification
COUNSEL:	Mr J Jacobson (solicitor) for the applicant Miss C McAnally for the respondent
SOLICITORS:	Jacobson Mahony for the applicant Queensland Director of Public Prosecutions Office for the respondent

[1]  The applicant pleaded guilty in the District Court at Southport on 7 January 1999 to one count of dangerous operation of a motor vehicle causing grievous bodily harm with a circumstance of aggravation namely, that at the time the applicant was adversely affected by an intoxicating substance (alcohol). A sentence of imprisonment for two-and-a-half years was imposed with the term to be suspended after six months for an operative period of three years. An order was made disqualifying the applicant from holding or obtaining a driver’s licence for a period of five years. The period of disqualification therefore terminates on 7 January 2004.

[2] The applicant now applies pursuant to the provisions of s 131(2)(a) of the Transport Operations (Road Use Management) Act 1995 (“the Act”) to remove the disqualification. A previous application was refused by His Honour Senior Judge Hanger on 20 April 2001. The applicant was precluded by the provisions of s 131(2D) of the Act from making a further application within one year after the date of the refusal of the previous application.

[3]  The circumstances of the offence were serious. In my sentencing remarks I observed that:

“You drove the complainant home from a nightclub in Surfers Paradise, and she noticed nothing unusual in your manner of driving on that occasion. You then drove the complainant’s vehicle, not your own vehicle, from the complainant’s residence out to the Hinze Dam and on that occasion you were, according to the complainant, driving fast but not so fast that she became scared. On the return trip from the Hinze Dam, however, you were told to slow down, which you did for a while, but you increased speed shortly thereafter. The complainant said nothing further at that stage.

When you reached the Robina Town Centre you entered a street known as Brabham Circuit. At that stage the complainant says that your driving was acceptable, but for some reason, which still has not been explained, when you passed the car yard in Brabham Circuit you began driving very fast. The complainant told you to slow down. She noticed that the speedometer in the vehicle was registering above 100 kilometres per hour, and she says that the speed at which the vehicle was travelling felt too fast for the road.

You did one lap of Brabham Circuit and then again for some unknown reason you decided to go around again. People who happened to be nearby and who witnessed your vehicle as it passed them on Brabham Circuit but who did not actually witness the collision say that your speed on the second lap was faster than it had been on the first. Unfortunately for all concerned you lost control of the vehicle and the car collided with a light post to the passenger side. It overturned and the complainant was injured.”

[4]  With reference to the circumstance of aggravation, I note that the investigating police officer, Senior Constable Tanner, was able to smell liquor on the applicant’s breath when he spoke with him probably some 30 minutes after the collision had occurred. The applicant told Tanner that he had consumed four Subzeros at a birthday function and two bourbons at the nightclub. I was informed by counsel for the applicant, Mr Glynn, at the sentencing proceedings that a Subzero is an alcoholic drink of a strength similar to wine. A breath test administered at the roadside indicated that the applicant’s blood alcohol concentration was .070. The applicant was conveyed to the Surfers Paradise Police Station in order to undergo a breath analysis. At 6.40 a.m. a breath analysis was carried out and a reading of .075 per cent was obtained. That reading was taken one hour and 50 minutes after the collision.

[5]  Dr Carroll, a Government Medical Officer, provided a statement in which he indicated that the average rate of elimination of alcohol is .02 per cent per hour. On this basis it is likely that the applicant’s blood alcohol concentration was approximately .115 per cent at the time of the collision. However, as was noted in my sentencing remarks, the elimination rate of alcohol from the body may vary from between .01 per cent per hour to .03 per cent per hour. Accordingly, Dr Carroll calculated that the applicant’s blood alcohol content would have been .095 per cent if the elimination rate had been .01 per cent per hour. The Crown Prosecutor, Mr Reilly, urged me to proceed on the basis that the applicant’s reading was in the order of .09 per cent at the time of the collision. Ultimately I proceeded on the basis that, as it was not possible to precisely determine the applicant’s blood alcohol concentration at the time of the accident, he was mildly adversely affected by alcohol at the relevant time. In any event the evidence of Dr Carroll as to the effects of alcohol on a driver’s ability at or around the level of .09 per cent to safely control a motor vehicle was not contested. Recklessness and irresponsibility increase at readings as low as .05 per cent. Judgments affecting functional capacity can be affected at a reading just above .05 per cent. Dr Carroll expected that there would be some degree of impairment at a reading as low as .07 per cent, although he was unable to describe the degree of impairment at that reading.

[6]  The complainant suffered very serious injuries as a result of the collision with the light post. She received an extensive laceration to her left forehead which proceeded in the region of her left eyeball and left cheek. This laceration was some 20 centimetres long. It was a jagged and deep cut which has caused inability on the part of the complainant to blink her left eye. There was a laceration inferior to the left eye which has affected the eye muscles and which has prevented the complainant from being able to look up with her left eye. In addition, the complainant’s left hand was very seriously injured. The tendons were severed and it is not expected that she will ever again have the use of that hand. There was substantial skin loss and an extensive grafting procedure was necessary. The complainant also suffered fractures to many facial bones in the region of her nose and cheek. Had she not been treated promptly and properly it is likely that her injuries would have led to the loss of her left hand completely and because of the substantial blood loss the complainant’s life may well have been threatened. She spent some six weeks in hospital and underwent physiotherapy for several months following her discharge. Despite extensive plastic surgery in respect of the facial injuries the complainant has residual scarring to her face. There is also extensive scarring in the region of her groin where her hand was attached to a flap of flesh to treat the de-gloving effects of her injury. There was no question that the complainant’s injuries amounted to grievous bodily harm within the meaning of the Criminal Code.

[7]  At the sentencing proceedings I accepted that the applicant deliberately and purposely engaged in reckless conduct which endangered the safety of the complainant. That deliberate recklessness in driving at the speed and in the manner exhibited by the applicant combined with the fact that he was mildly affected by alcohol called for the imposition of a deterrent sentence, one component of which included an order for disqualification from holding or obtaining a driver’s licence for a period of five years.

[8]  In an affidavit filed on 23 July 2002 the applicant accepts that his traffic history was bad. That may be regarded as something of an understatement. Prior to the offence in question the applicant had been convicted of exceeding the speed limit by between 15 and 29 kilometres per hour on 28 August 1996. Prior to that he had been convicted of failing to wear a seat belt in 1995 and had also been convicted in 1994 of exceeding the speed limit by between 15 and 29 kilometres per hour. After the date of the offence in question he was convicted of exceeding the speed limit by at least 45 kilometres per hour in May of 1998 and on 14 July 1998 he was convicted of creating undue noise by the manner of operating his vehicle. On 17 June 1998 he was fined for exceeding the normal carrying capacity of the vehicle he was driving and on that same occasion he was convicted of driving with a prescribed concentration of alcohol in his blood, the reading being .090 per cent. On that same occasion he was also fined for exceeding the speed limit by 30 kilometres or more.

[9]  It was conceded by Mr Glynn at the sentencing proceedings that the one weakness in the applicant’s character concerns his attitude to motor vehicles. It is, in these circumstances, important to have regard to the necessity of ensuring, as far as possible, that the safety of the public is not further put at risk by a precipitate order which would permit the applicant to once again drive on the roads.

[10]The applicant deposes that after being sentenced he was able to more than previously give deep and constructive thought to his actions and their consequences. It is to his credit that the applicant accepts that his attitude with regard to the driving of motor vehicles had been selfish. The applicant claims that his attitude toward driving motor vehicles is now much changed from what it was prior to being sentenced. This is supported by the applicant’s father who claims to have seen a positive maturation of his son’s attitude towards his driving offences and a realisation that his prior attitude was quite improper. The applicant now acknowledges that the improper and unsafe operation of motor vehicles can have far-reaching consequences to drivers, passengers and pedestrians, as well as to the family, friends and loved ones of such persons. The applicant asserts that he now understands and appreciates that being safety-conscious and considerate of others are proper attitudes for any road user and claims to now hold such attitudes. He has undertaken to the Court in his affidavit that once permitted to drive again he will be a safety-conscious and considerate driver. I note that the applicant has participated in the theory unit of a driver training course conducted by Mount Cotton Training Services, at Mount Cotton, Brisbane. The course concluded with a test of observation and attention levels and included topics such as driving risks, attitudes and behaviour, and scanning and observations.

[11]The applicant was admitted to practice as a solicitor of the Supreme Court of Queensland on 29 January 2002. The applicant states that although he is now able to appear before the Courts, he is obliged to refer away matters involving Court appearances because of his transportation difficulty. He further claims to experience difficulty as a commercial lawyer in that some of his clients expect that he will be able to attend out-of-office meetings.

[12]The applicant has received assistance from his de facto wife in being driven to work and generally for work-related and social engagements. In February 2002 the applicant and his wife purchased a house at Burleigh Heads thus accepting the added expenses associated with home ownership. Due to a serious illness being suffered by her mother, who resides in Thailand, the applicant’s wife is required to spend considerable time in that country and this has increased the difficulties of the applicant both in relation to transportation and meeting financial obligations. The applicant’s wife states in an affidavit filed on 24 July 2002 that she expects to be present with her mother in Thailand for two to three weeks of every other month over the next eight months as her mother undergoes a regime of chemotherapy for stomach cancer. During this period the applicant’s wife will be unable to contribute to general expenses and mortgage costs as well as being unavailable to drive the applicant.

[13]The application is resisted by the respondent on the grounds that the manner of driving, the applicant’s poor traffic history, and the nature and consequences of his offending all indicate the necessity for a lengthy period of disqualification. The respondent further resists the application on the basis that the applicant’s circumstances have not sufficiently changed so as to warrant an early termination period. These factors are by themselves individually as well as collectively powerful arguments against the granting of the application. However, the effect that long periods of disqualification may have on the reintegration of the applicant into the community must also be considered.

[14]S 131(2C) of the Act provides that upon the hearing of an application of this nature the Court may, “…as is thought proper, having regard to the character of

the person disqualified and the person’s conduct subsequent to the order, the nature of the offence, and any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or

refuse the application.” Without the evidence relating to the change of attitude by the applicant towards his responsibilities as a motorist, which in general I am prepared to accept, it is unlikely that this application could properly be upheld. The evidence in relation to the financial difficulties of the applicant together with the problems he faces with regard to transportation caused by his wife’s absence overseas is not of itself, in my view, sufficiently compelling to justify the granting of the application. The combination of these matters does, however, in my opinion justify an order being made that would enable the applicant to obtain a driver’s licence earlier than the original order of disqualification would permit. I have come to the conclusion that the application should be granted by permitting the applicant to obtain a driver’s licence on 7 January 2003 which effectively reduces the period of disqualification by 12 months and I so order.

I further order, pursuant to s 131(2E) of the Act that particulars of the order for removal of disqualification be endorsed on each and every licence previously held by the applicant and cancelled as a result of the disqualification, and on every licence of that kind, class, or description which the applicant may subsequently obtain.

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