Braithwaite v Commissioner of Police

[2016] QDC 247

DISTRICT COURT OF QUEENSLAND

CITATION:	Braithwaite v Commissioner of Police [2016] QDC 247
PARTIES:	BRAITHWAITE, Marcus Lee
(applicant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO:	23 of 2016
DIVISION:	Criminal
PROCEEDING:	Application pursuant to s 131 of the Transport Operations Road Use Management Act 1995
ORIGINATING	District Court at Kingaroy
COURT:
DELIVERED ON:	30 September 2016 (order corrected on 6 October 2016)
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	22 August 2016 and 1 September 2016 (Kingaroy); 30 September 2016 (Maroochydore)
JUDGE:	Long SC DCJ
ORDER:	The absolute disqualification from holding or obtaining a
driver’s licence, imposed on the applicant on 20 October
2004, is removed, as from 30 September 2016.
CATCHWORDS:	APPLICATION – s 131 of the Transport Operations Road Use Management Act 1995 – Where on 20 October 2004 and
as part of the sentence of the applicant for the offence of aggravated dangerous operation of a motor vehicle, the applicant was absolutely disqualified from holding or
obtaining a driver’s licence – Where the applicant now seeks
the removal of such a disqualification pursuant to s 131(2) of
the Transport Operations Road Use management Act 1995 –
Where the applicant has been subjected to this order for
almost 12 years – Where the applicant has committed driving-
related offences in that period, the last of which was
committed in November 2008 – Where there is no evidence of the applicant’s involvement with drugs since 25 March
2015 and in respect of which offending the applicant has been
on immediate release to parole since 24 June 2016 – Where
the respondent contends that this application has been made
prematurely – Where the applicant has engaged in more
recent efforts at rehabilitation, in the context of his motivation
to settle into a stable family life – Where the applicant has
also obtained recent employment – Where there are also other
absolute disqualification orders that the applicant will need to
have removed – Whether it would be a proper exercise of judicial discretion, to remove the applicant’s disqualification
LEGISLATION:	Transport Operations Road Use Management Act 1994, s 131
COUNSEL:	The applicant appeared on his own behalf
J Broadbent for the respondent (22/08/16; 01/09/16)
K Boileau for the respondent (30/09/16)
SOLICITORS:	The applicant appeared on his own behalf
Queensland Police Service Legal Unit for the respondent

1. Pursuant to an application filed on 8 April 2016 and as was subsequently clarified at

   an earlier stage of the proceedings in this Court, the applicant seeks the removal of an

   absolute disqualification of his entitlement to a driver’s licence, imposed by this

   Court, on 20 October 2004.

2. Pursuant to s 131(2C) of the Transport Operations Road Use Management Act 1994,

   this Court is given a discretionary power to remove such a disqualification, as from

   such a date as may be specified in the order or to refuse the application. That

   discretion is to be exercised as is thought proper, having regard to the character of the

   person disqualified, the person’s conduct subsequent to the order, the nature of the

   offence and other circumstances of the case.

3. In considering whether it is thought proper to remove the disqualification, it can first

   be noted that the original order was made as part of the sentence imposed on the

   applicant and, in this case, that can be seen to have been particularly reflective of the

   purposes of punishing the applicant and making clear the denunciation of his conduct

   but also, to provide the necessary elements of deterrence and protection of the

   community from the applicant’s offending.

4. Consideration must also be given to the community interest in the safety of all road

   users and therefore, there is a need for satisfaction that the applicant is prepared to

   conduct himself with due regard to such community expectations and also, that the purposes of punishment, denunciation and deterrence inherent, in the original

   sentence, are nevertheless met and not compromised by acceptance of the application.

5. The order for absolute disqualification made on 20 October 2004, was in respect of

   the applicant’s guilty plea to an offence of aggravated dangerous operation of a motor

   vehicle. From the materials, it may be gleaned that the offence related to the

   applicant’s manner of driving at an excessive speed and in order to avoid police

   interception, initially on the D’Aguilar Highway, on 21 April 2003. The order was

   made in conjunction with another order that the applicant serve 9 months

   imprisonment, wholly suspended for 2 years, with the declaration of 86 days of pre-

   sentence custody as time already served. That occurred after the applicant’s

   successful appeal against his conviction of the same offence, after trial and his earlier

   being sentenced, on 29 January 2004, to 12 months imprisonment, suspended after 6

   months for an operational period of 2 years, also accompanied by an absolute

   disqualification of his entitlement to a driver’s licence.

6. When originally sentenced on 29 January 2004, the applicant was aptly described as

   a 31 year old man, with a bad criminal history and an appalling traffic history. By

   that time, he was no stranger to prison and had been subjected to orders disqualifying

   his entitlement to a driver’s licence, including absolutely, on many prior occasions in

   various Magistrates Courts. That was particularly in relation to offending directly

   related to the driving of motor vehicles and it may be noted, that included many

   instances of disqualified driving. It may also be noted that the applicant has never

   held a driver’s licence but had once previously had a learner’s permit.

7. The sentence imposed on 20 October 2004 was obviously imposed in consequence of

   material that presented some prospect of the applicant’s rehabilitation,

   notwithstanding the sentencing judge’s apparent reservation. It was also imposed in

   the context that the applicant had, on 23 March 2004, been sentenced to a term of 15

   months imprisonment, suspended after serving 4 months, for an operational period of

   2 years, for an offence of entering a dwelling with intent, with a circumstance of

   aggravation, committed in January 2003.

8. Accordingly and at the outset, it may be noted that the applicant has been subjected

   to this order for almost 12 years. However, that has not prevented him committing driving-related offences in that period and for which, various finite periods of

   disqualification have been ordered and have since expired.

9. For present purposes, it is only necessary to note that apart from some offences

   described in the traffic record as being in the nature of using or permitting use of an

   unregistered vehicle and with a label, plate or permit for another vehicle, committed

   in April 2011 and dealt with in conjunction with drug-related criminal offending, on

   22 June 2011, the last offence involving the applicant’s driving of a motor vehicle,

   occurred on 28 November 2008 and was dealt with on 16 April 2009.

10. In addition, the subsequent criminal history of the applicant discloses that:

(a) On 20 March 2007, he was dealt with for breaching the suspended

sentence imposed on 20 October 2004. The breaching offence was

one related to driving a motor vehicle: failing to stop a vehicle on 21

April 2003, which was dealt with in the Nanango Magistrates Court,

on 12 January 2005 and by way of the imposition of a fine.

(b) On 20 March 2007, the breach of the suspended sentence was dealt

with, together with other drug-related and driving offending, including

disqualified driving and driving with a prescribed blood alcohol

concentration, committed between June and August 2006, by an order

that the applicant serve the balance of the suspended sentence,

cumulatively upon a period of 12 months imprisonment imposed in

respect of the additional offences. After 61 days of pre-sentence

custody was declared as time already served, a parole release date was

fixed at 19 September 2007.

(c) After that, there is the offence of fail to stop a motor vehicle, dealt with

on 6 April 2009 (already noted as the last offence in relation to driving

a motor vehicle).

(d) Between April 2011 and May 2014, there is predominantly drug-

related offending, for which various terms of imprisonment were

imposed. This culminated in an appearance in the Magistrates Court

at Kingaroy on 24 July 2014, when a total period of 6 months

imprisonment was imposed, with an immediate release to parole.

1. This was the position in relation to the applicant’s criminal and traffic records, at the

   time that this application was filed. In addition and by then and as has been verified by materials provided to the Court, on 24 November 2015 the applicant successfully

   applied, in the Magistrates Court at Caboolture, for an order removing the

   disqualification for a period of 5 years, imposed in the Magistrates Court at Kingaroy,

   on 22 June 2011.

2. However and as was specifically noted, when this matter was transferred from

   Kingaroy and adjourned for further hearing at Maroochydore on 30 September 2016

   and directions made as to the provision of further information by each party, a

   problem confronting the applicant is that there remain other absolute

   disqualifications, which are yet to be removed. In particular and from his traffic

   record, there would appear to be:

(a) the order made on 5 August 1998, in the Magistrates Court at

Nanango and in respect of an offence of disqualified driving on 18

July 1998; and

(b) the orders made on 23 August 2001, in the Magistrates Court at

Nanango and in respect of each of five offences of disqualified

driving, committed respectively on 16 April, 11, 26 and 27 May and

21 July 2001.

1. In these proceedings, the respondent opposes the application, primarily upon the basis

   that it is premature, in the sense that there has been an insufficient demonstration of

   the applicant’s rehabilitative progress and particularly, such as to provide the

   necessary assurance of future protection of the community from his abuse of the

   privilege of having a driver’s licence.

2. In that regard, it is particularly pointed out, that since the application to the

   Magistrates Court and since the filing of this application, there have been

   developments in relation to the applicant’s criminal history. However, some care is

   needed in noting what has occurred:

(a) On 24 June 2016, the applicant was sentenced in the Supreme Court at

Brisbane in respect of drug-related and other offending. This included an

offence of possessing Schedule 1 dangerous drugs in a quantity of or

exceeding the amount in Schedule 3 but less than the amount in Schedule 4.

All of the offences were committed in March 2015 and the sentence was a

total period of 18 months imprisonment, and after the declaration of 65 days

in pre-sentence custody between 25 March 2015 and 28 May 2015, a parole

release date was fixed at 24 June 2016.

(b) On 6 July 2016, in the Magistrates Court at Brisbane, the applicant was fined

in respect of two breaches of bail (respectively occurring on 18 September

2015 and 28 December 2015) and a Weapons Act offence, committed on 5

November 2015.

1. The applicant’s material includes references that were relied upon in the Magistrates

   Court in 2014. However, there is further material assembled in 2016, being:

(a)	a reasserted reference from his partner’s father;
(b)	a confirmation of registration with an employment agency from 21

August 2015 to the date of the letter, 2 June 2016;

(c) a letter certifying employment with Civil Mining and Construction Pty

Ltd, from 21 August 2013 to 11 April 2014 and stating that “further

employment was not offered to [the defendant] as he was not the

holder of a current driver’s licence” at that time; and

(d) confirmation of the attendance of the applicant and his partner at a

recovery program at “The Health Retreat Recovery Centre” and

involvement in ongoing contact and counselling demonstrating, it is

said, “commit[ment] to their recovery and becoming stable parents for

their child”. The letter is dated 23 March 2016 but other

correspondence indicates that this was for a 28 day period up to 24

May 2015.

1. Notwithstanding that, in part, the directions made upon adjournment and transfer of

   this application, on 1 September 2016, required the applicant to include in his further

   affidavit (to be filed by 27 September 2016) information as to any ongoing

   involvement in rehabilitative programs or counselling, there is only the attachment of

   the letter dated 23 March 2016, under the hand of Francis McLaughlan, confirming

   the attendance of the applicant and his partner at a recovery program and stating:

   “Since that time I have been in constant contact and counselling

   sessions with them. I can confirm that they committed to their

   recovery and becoming stable parents for their new child.”

2. Although the applicant’s affidavits, sworn on 26 February and 12 September 2016,

   put forward one unsatisfactory motivation for the application, being, the loss of the

   driver’s licence of the applicant’s partner, due to accumulated demerit points, the

   more substantial basis of the application is in what is suggested to be the applicant’s

   more recent efforts at rehabilitation, in the context of his motivation to settle into a

   stable family life, with the recent birth of a child and to promote his prospects of

   finding employment to do so. His more recent affidavit makes reference to recently

   obtained employment but provides no detail or documentary confirmation and merely

   asserts that: “it involves many locations and [his] having to board a 4.30am train and

   travel for over an hour to maintain [his] position.” However on his appearance today,

   the applicant has, without objection from the respondent, explained that this was in

   reference to an earlier position doing roofing work that was for less than full time

   hours and he is now employed in full time concreting type work, at Strathpine.

   Obviously that would not present the same difficulties in travel by public transport

   from Caboolture, except perhaps upon concluding any night shift, at 12.30am.

3. Whilst that may be a situation of a type not unusually confronting other members of

   the community, the change in circumstances serves to underline the potential fluidity

   of the applicant’s situation. And the support of his employment, whilst important, is

   not the only basis of his application and the more recent affidavit otherwise addresses

   the significant advantages that would ensue from an ability to have a driver’s licence

   and in supporting the applicant’s expressed desire to maintain and support a stable

   family life, including in respect of his reunion of contact with his parents, who reside

   in Maryborough.

4. As directed, the respondent has obtained and provided a report on the supervision

   history of the applicant. Most of it is concerned with the past difficulties, which are

   also evidenced by the applicant’s criminal history and up to the point when his court

   ordered parole was cancelled on 19 January 2015. More importantly and in relation

   to his release to parole on 24 June 2016 and in respect of supervision, which will

   continue until 19 October 2017, it is recorded:

   “It is noted Mr Braithwaite has only been subject to supervision on

   this order since 24/06/2016. Mr Braithwaite has supplied an exit

   certificate from his one month stay in a ‘wellness-clinic’ at Maleny in

   2015 to assist with drug addiction. He advises this was at much expense to himself and his partner, costing them $15, 950 each. He

   has advised the payment was made by his ‘in-laws’.
   Mr Braithwaite purports that he resides with his partner and their baby
   son.
   Mr Braithwaite has not yet been subject to any urine testing on this
   order to date.

   It is noted that he has recently gained full-time employment, (though

   evidence is yet to be supplied).”

   Otherwise and in summary, it is, unsurprisingly, observed that the applicant has

   previously demonstrated a poor response to supervision.

5. Otherwise, the respondent points to the observations made by Judge Dodds, in

   originally sentencing the applicant for the offence for which he was disqualified, on

   29 January 2004:

   “If you are ever to obtain a driver’s licence again you will need to

   demonstrate to the community over a sustained period of time, two years or probably longer, that you have changed your ways regarding

   your conduct and you are a person fit for a driver’s licence, otherwise

   you will never get one.”

   Whilst and as the respondent recognised, the decision of Judge Dodds to disqualify

   the applicant absolutely, was set aside when he successfully appealed his conviction,

   nevertheless, the sense of the observations is self-evident and particularly to be noted

   in the light of the applicant’s subsequent behaviours. However, such observations

   cannot in any way constrain the present exercise of discretion by this Court.

6. It can be observed that there is merit in the respondent’s submission, that the Court

   should now exercise a significant degree of caution in considering this application.

   And as observed for the respondent, the assistance that the applicant will obtain in

   respect of removal of the disqualifications so as to enable him to obtain a driver’s

   licence, will be some time in coming because he will first be required to obtain a

   learner’s permit, which will not allow unaccompanied driving.

7. However, it is not necessarily apparent that there is “a strong evidentiary basis for not

   removing the disqualification”. As has been noted, there is no evidence of the

   applicant’s involvement with drugs since 25 March 2015, when he committed the

   offence that was dealt with in the Supreme Court on 24 June 2016. And there has

   been no offending in relation to motor vehicles since 28 November 2008. I do not

   share the respondent’s expressed view that the observations of Boddice J, indicated

   an “apparent lack of faith… for the prospect of the applicant’s rehabilitation”, as

   opposed to the correctly noted submission of a need to be cautious in the approach to

   the applicant’s situation.

8. Save in respect of the other absolute disqualifications and his ongoing parole order,

   he has otherwise served all past sentences that have been imposed. On balance, there

   is sufficient evidence of some significant progress in and ongoing prospect of the

   applicant’s rehabilitation and the denial of ability to hold a driver’s licence has

   already been of substantial punitive effect, at least since 28 November 2008 and it is

   more in the community interest that, rather than being potentially confronted with

   pressures that have led to risk taking in the past and to disqualified driving offences,

   the applicant be permitted to satisfy the usual constraints in respect of obtaining and

   holding lawful authority to drive a motor vehicle, sooner rather than later. As has

   been noted, that may be expected to commence with a learner’s licence and

   progression through the constraints of provisional licencing.

9. In the circumstances and particularly where it is apparent that the ongoing

   rehabilitation of the applicant may be significantly facilitated by his ability to obtain

   a driver’s licence, an appropriate exercise of discretion is to allow the application.

10. It should be noted that this conclusion has been reached, notwithstanding the

    significant complication that this order is only a step towards the goal of obtaining

    the necessary authority, because of the existence of other absolute disqualifications.

    Despite what may otherwise be considered as to the desirability of this Court having

    the final say and in respect of the disqualification entered for the indicted and

    therefore, most serious offence, the applicant should not be placed in a “catch-22”

    situation and he will have the benefit of these reasons in respect of any further

    necessary application. Although, it may be noted that any decision made upon any

    such an application will necessarily be a separate exercise of discretion and may be

    expected to come with the benefit of up-to-date information in relation to the

    applicant’s position and particularly, his continued progress on parole.

1. Accordingly, the order of this Court is that the absolute disqualification from holding

   or obtaining a driver’s licence, imposed on the applicant on 20 October 2004, is

   removed, as from 30 September 2016.