Davis v Commissioner of Queensland Police

[2016] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

Davis v Commissioner of Queensland Police [2016] QDC 301

PARTIES:

DAVIS, Aidan Andrew

(applicant)

v

THE COMMISSIONER OF QUEENSLAND POLICE

(respondent)

FILE NO:

D 126 of 2016

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 131 of the Transport Operations (Road Use Management) Act 1995

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

18 November 2016 (order)

24 November 2016 (reasons published)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

18 November 2016

JUDGE:

Long SC DCJ

ORDER:

The absolute disqualification from holding or obtaining a driver’s licence, imposed by the District Court at Maroochydore on 5 August 2002, is removed as from 18 November 2016.

CATCHWORDS:

APPLICATION – s 131 of the Transport Operations (Road Use Management Act) 1995 – Where on 5 August 2002 and as part of the applicant’s sentence for an offence of aggravated dangerous operation of a motor vehicle and unlawful use 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 comes before the Court with a lengthy period of absence of any offending (save for a breach of a bail condition) and a positive indication of rehabilitation and prospects of ongoing stability – Whether it would be a proper exercise of judicial discretion, to remove the applicant’s disqualification

LEGISLATION: 

Transport Operations (Road Use Management) Act 1995, ss 131, 131(2) and 131(2C)

COUNSEL:

C Emery for the applicant

L Gullo for the respondent

SOLICITORS:

Chelsea Emery and Associates for the applicant

Commissioner of the Queensland Police Service for the respondent

1. By an application filed on 19 September 2016, the applicant seeks, pursuant to s 131 of the Transport Operation (Road Use Management) Act 1995 (“TORUM”), an order removing the absolute driver’s licence disqualification, imposed by the District Court at Maroochydore on 5 August 2002 and as part of the sentence imposed upon the applicant for offences of unlawful use of motor vehicles (which had occurred in April 2002) and aggravated dangerous operation of a vehicle (which occurred on 15 April 2002).

1. Accordingly and pursuant to s 131(2) of TORUM, this application is permitted, as it is made after the expiration of two years from the start of the disqualification period.   Pursuant to that subsection, a power is given to this Court to remove such a disqualification, as from such a date as may be specified in the order or to refuse the application.  The power is in the nature of an exercise of discretion and 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 any other circumstances of the case.

1. When the applicant was sentenced on 5 August 2002, it was observed:

“The offences in question before me involve the theft of a motor vehicle and a police pursuit.  That police pursuit proceeded through the main streets of Maroochydore, Mooloolaba and down to Caloundra.  You drove at excessive speeds.  You were clocked at 160 km/hour.  You drove through a car park at excessive speed.  You drove through numerous red lights.  At one stage on the Bruce Highway you turned your headlights off.  The pursuit lasted for something like 50 kilometres.  It ended with a collision with a tree and the complainant’s motor vehicle was a write-off, so he has lost something like $5, 500 worth of car.  It was obviously an extremely dangerous incident and you are lucky, indeed, that no one was injured or killed.”

It was also observed that the applicant was then 19 but had, since turning 17 and from November 2000, amassed a substantial criminal history.  That included what was described as a “previous… very similar incident” and for which the applicant had been placed on probation, which order had been previously breached, and also instances of the applicant having been sentenced to serve actual imprisonment.  Hence the circumstance of aggravation in the applicant’s offending, having regard to a prior conviction of dangerous operation of a motor vehicle.

1. It is to be further noted that the applicant’s offending occurred in breach of a suspended sentence and he was ordered to serve the seven months of previously suspended imprisonment, imposed for offences of unlawful use of motor vehicles and stealing, in December 2001.  Accordingly and having regard to some undeclarable pre-sentence custody, an effective period of 2 years imprisonment was imposed. 

1. It would appear that the applicant served almost all of that sentence before release and then there was some reoffending, including by way of unlawful use of motor vehicles, stealing, possession of dangerous drugs and disqualified driving on 29 March 2005.  On 28 June 2005, the applicant was sentenced to 12 months imprisonment and two years probation for those offences. 

1. Further reference to the applicant’s Queensland criminal history does disclose some entries for this year.  First and on 10 February 2016, in the Beenleigh Magistrates Court, the applicant was ordered to perform 80 hours community service in respect of an offence of failure to appear in accordance with an undertaking, committed on 14 March 2006.  Further and on 22 June 2016, and again in the Beenleigh Magistrates Court, he was dealt with for breaching the probation order made on 28 June 2005 and fined $100 and resentenced to the rising of the court in relation to the original offences.  He was also then dealt with for an offence of breaching a bail condition, on 6 May 2016, which is understood to be in respect of a reporting obligation.  In respect to that matter, he was not punished and no conviction was recorded.

1. Curiously, in his affidavit and although he refers to having done so on 20 June 2016 in the Beenleigh Magistrates Court but in conjunction with the breach of probation order, the applicant states that he also pleaded guilty to other offences that were committed in 2005 for which he was ordered to pay $2,000 restitution, with the recovery being referred to the State Penalties and Enforcement Registry, with whom he has entered into a repayment plan in respect of that debt.

1. In his affidavit and in relation to the offences committed prior to 2006, the applicant asserts that they were committed at a time when he had not stabilised his life and prior to the birth of his children.  He explained that he had relocated to Melbourne in 2006 and that it was in 2015, when he made enquiries with the Queensland Warrant Bureau in relation to outstanding matters. And then, upon his return to Queensland, he surrendered himself into custody in early 2016.  Those observations obviously go some way to explaining the entries in relation to the failure to appear on 14 March 2006 and the entry for the offence of breaching the bail condition committed in 2016. 

1. Although done without due regard to that 2016 offence, the applicant otherwise substantially and correctly asserts that he has not committed any criminal offences since 29 March 2005 and nor since that date has he committed any offences, as might be recorded in his traffic history and it may be accepted that he has not driven since that date. Reference to the applicant’s Queensland Traffic Record is also confirmatory of that situation, but otherwise discloses a not insubstantial history of offences relating to the driving of motor vehicles, including instances of disqualified driving between 24 July 2000 and 29 March 2005.  It may be noted that there are entries in relation to six offences of disqualified driving that had occurred between July 2000 and 29 March 2005 and that in respect of three such instances, orders were made in a Magistrates Court (on 20 September 2001, 19 December 2001 and 5 August 2002), also disqualifying the applicant’s driver’s licence absolutely in respect of such offences. 

1. Accordingly and as was acknowledged on the hearing of this application, the applicant will need to also make a separate application in relation to those orders.

1. The applicant was born on 20 January 1983 and is therefore now approaching 34 years of age.  His application is supported by evidence that:

(a)        in the context of an unsettled upbringing in foster homes and struggles with drug addiction and offending behaviours up to 2006, the applicant has settled into a de facto marriage for approximately 12 years and now has two children aged 8 and 5 years;

(b)        he also has a 15 year old child from a prior relationship, who suffers from cerebral palsy and whom he pays child support but is only able to occasionally visit, due to transportation restrictions; and

(c)        he is currently in employment on a permanent casual basis and his application is supported by his employer and particularly as to the benefit to that employment of the ability of the applicant to drive a truck for his employer.[1]

[1]It should be noted that although the originally filed material had included reference to and similar support from a prior employer and it was apparent that the position had changed at about the time that material was filed, an explanation was provided at the hearing of the application and the important point is that the applicant has successfully obtained replacement employment.

1. 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 a 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 for the necessary elements of deterrence and protection of the community from the applicant’s offending.  Except that he remains subject to this disqualification, at this stage it can be noted that the conjunctive elements of the applicant’s punishment have been substantially completed and that the feature which most relevantly remains, is the purpose of the protection of the community from any continuing risk that the applicant presents to it.

1. It is also important to note that the remaining purpose for which sentences may be imposed, under s 9 of the Penalties and Sentences Act 1992, is to provide conditions that are considered will help an offender to be rehabilitated.

1. Essentially, this application is made with a view to facilitating the applicant’s continued rehabilitation and integration into the community and it is, obviously, in the general interest of the community that such rehabilitation and integration be appropriately facilitated.  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.

1. In this case, the respondent, appropriately conceded that it was open to the Court to find that the requirements of s 131(2C) of TORUM had been satisfied by the applicant and did not seek to oppose any conclusion by the Court that it was appropriate to remove the disqualification.

1. In the circumstances where the material indicates such a lengthy period of absence of any offending by the applicant (save for the breach of bail condition) and the positive indication of rehabilitation and prospects of ongoing stability in his circumstances, it is appropriate to order that:

“The absolute disqualification from holding or obtaining a driver’s licence, imposed by the District Court at Maroochydore on 5 August 2002, is removed as from 18 November 2016.”