Frost v The Commissioner of Police, Queensland
[2010] QDC 73
•11 March 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Frost v The Commissioner of Police, Queensland [2010] QDC 73
PARTIES:
ROBERT ALISTAIR FROST
(Applicant)
AND
THE COMMISSIONER OF POLICE, QUEENSLAND
(Respondent)
FILE NO/S:
BD280/10
DIVISION:
Civil
PROCEEDING:
Application for removal of license disqualification.
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
11 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
3 March 2010
JUDGE:
Dorney DCJ
ORDER:
1.The application is granted.
2.The absolute disqualification order made in the District Court at Brisbane on 12 May 2005 is removed as from 11 March 2010.
3.There is no order as to costs.
CATCHWORDS:
APPLICATION FOR ABSOLUTE REMOVAL OF LICEINCE DISQUALIFICATION – whether application is premature – Transport Operations (Road Use Management) Act 1995, s131.
Transport Operations (Road Use Management) Act 1995, s131.
Burton v Commissioner of Police (Queensland) (1990) 10 MVR 329.
COUNSEL:
A. Christie for the Applicant.
J. Maccarone for the Respondent.
SOLICITORS:
Ryan and Bosscher Lawyers for the Applicant.
Commissioner of Police Service for the Respondent.
Introduction
This Originating Application was filed on 27 January 2010. By it, the applicant seeks to have a disqualification from holding or obtaining a driver’s licence absolutely, consequent upon a conviction by an order of a judge of the District Court, removed.
The Commissioner of Police, Queensland, was served and appeared at the hearing of this application before me on 3 March 2010.
At that hearing, besides the written submissions provided to the Court, both parties made further oral submissions.
Legislation
The relevant legislation is contained in s 131 of the Transport Operations (Road Use Management) Act 1995 (“the Act”).
By s 131(2), a person who has been relevently disqualified, by an order, from holding or obtaining Queensland driver licence absolutely – as here - may, at any time after the expiration of two years from the start of the disqualification period, apply for the disqualification to be removed. By s 131(2AA), the application for the disqualification to be removed must be made to a judge of the District Court, if the disqualification was ordered by a judge of the District Court: see paragraph (b). By s 131(2A), notice of any such application shall be given to the Commissioner of Police, who shall be entitled to appear and be heard and to give and produce evidence at the hearing.
Most importantly, s 131(2C) states that, upon hearing any such application, the judge of the District Court may, as is thought proper, either by order remove the disqualification from such date as may be specified in the order, or refuse the application, after 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.
With respect to costs, s 131(2E) states that if an order is made under s 131(2) for the removal of a disqualification, the judge has power to order the applicant to pay the whole or any part of the costs of the application.
Nature of the offence
The written Outline of the Commissioner sets out, in considerable detail, the circumstances surrounding the commission of the relevant offence. The offence was one of dangerous operation of a vehicle causing death, while adversely affected by an intoxicating substance, namely alcohol. On a plea of guilty at trial, a conviction was recorded and the applicant was sentenced to imprisonment for nine years with a recommendation of eligibility for post-prison community-based release by order of a District Court Judge. That recommendation was removed on appeal.
As outlined by the Commissioner, on 24 April 2003, at Mackay in North Queensland, at around 3 am, three friends were struck from behind by the applicant’s Toyota Landcruiser. Two of them, being sisters, were killed instantly and a third, a friend, died later that day. The applicant was then aged 24 years, being 25 when sentenced by Britton DCJ on 12 May 2004. At about 1 am that day, the applicant was observed to be visibly adversely affected by alcohol but, even so, the applicant elected to drive his own vehicle. Despite an acquaintance whom he was driving in the vehicle at the time of the incident asking to be let out of the vehicle, the applicant insisted that he drive that person home. Then, despite a warning to be careful from his passenger, the applicant drove his vehicle such that it continued to swerve back and forth across its two lanes and then moved onto the road shoulder, hitting the three victims.
There was no doubt that the applicant’s blood alcohol concentration, measured at 0.198% at 6.17 am – which would have been at least 0.237% at the time of the incident – played a significant role both in the occurrence of the incident and the early refusal by the applicant to acknowledge that, first, anything untoward had occurred, and, secondly, his own blame for it.
The point of reciting so much of the occurrence of the incident is to emphasise both the horrendous nature of the offence and the strong reason why there should have been, and was, an absolute disqualification from holding or obtaining a driver’s licence at the time of sentencing.
Character of the applicant/ Subsequent conduct
The next factors to be considered are the applicant’s character and subsequent conduct.
Taking the applicant’s character as at mid‑2004, prior to the plea of guilty in the District Court, there would have been no positive aspect that one could have attributed to the applicant concerning his suitability for holding a driver’s licence. Not unimportantly, for reasons to be discussed later, the applicant had been convicted in Tasmania, on 23 December 2003, while still on bail for the earlier Queensland offence, of driving with a blood alcohol concentration of 0.072%. For that, he was disqualified from driving for four months, having pleaded guilty to the charge. While I was initially concerned that there was a deliberate omission to refer to this episode by the applicant, I accept the submission that, even though indirectly, his affidavit dealt with it. His traffic record both in Queensland and Tasmania, as well as his criminal history, then showed a flagrant disregard for the safety of others, particularly as there were speeding offences, failing to drive with due care and attention, and a suspension for the accumulation of demerit points.
But all of that must be measured against the character of the applicant now as a 31 year old. And for that his subsequent conduct is important. It is telling that the Commissioner’s written Outline can find no fault with his character or conduct subsequent to release.
More importantly, for present purposes, it is clear that the applicant, while imprisoned, deliberately forged a path to rehabilitation. His “Post Prison Parole Application”, which in no way is contradicted by the Commissioner’s legal representatives, shows not only extreme remorse but also an awareness of what his excessive drinking, including binge drinking, had done to his life as well as to the lives of many others, including those who died in the incident in question. Moreover, he undertook work and activities while in prison which showed both an understanding of a need to reform, as well as achieving that reform in a practical way.
Having been released on parole, the applicant has followed a path of abstinence from alcohol and has sought to identify, and achieve, decent work prospects. Additionally, with the help of his mother, Mrs Cynthia Frost, and with the strong support of his girlfriend of 15 years, Ms Meika Bane, whom the applicant plans to marry on 13 March 2010, he has built up his work prospects to the extent that Mr Oliver Diprose, in an affidavit filed in support of the application, states that the applicant has been a registered sub-contractor with Gradco Pty Ltd, of whom the deponent is the General Manager, and that the applicant exhibits an excellent work ethic and is extremely diligent and meticulous. Mr Diprose, who has known the applicant for his entire life, observes that there is major difference now in the applicant, that he has matured a great deal, and that he has shown a great deal of responsibility.
Lastly, in a letter from the Department of Justice of the Tasmanian government, after noting that the applicant’s parole order was formerly transferred to Tasmania on 3 February 2009, it is stated that the applicant has been supervised in Tasmania, has complied with the conditions of the order, including maintaining contact as required and attending counselling at Alcohol and Drug Services, has maintained steady employment and, since positive progress has been made, has had his level of contact recently reduced: see the letter of Annette Carr, Professional Supervisor, of 8 September 2009.
Present need for licence
Mr Diprose notes that the applicant will only definitely be used on a sub-contract basis through Gradco Pty Ltd if he is able to obtain a driver’s licence. If not, then there will be no choice but to terminate the sub-contract and this particular employer would have no other position for the applicant open.
While that of itself might not be so important, it is in the context of the applicant having rebuilt his business and, at present, being the employer of two employees. This business requires work to be undertaken all over Tasmania and, for that purpose, the applicant presently is driven by others to various sites. The applicant deposes that, if granted a driver’s licence, he will be able to work as a field service fitter for Gradco Pty Ltd, undertaking projects located as far away as 200 kilometres from where he is based in Launceston.
Lastly, with respect to his present conduct as it concerns driving, he states that during this present employment he is often confronted with occupational health and safety requirements and has been tested for alcohol and drugs, this often being a requirement for entering work sites. Although tested approximately 50 times this year (being 2009), there has been no suggestion of the consumption of drugs or alcohol.
Consideration
A case which I found most helpful is Burton v Commissioner of Police (Queensland) (1990) 10 MVR 329. There, GN Williams J, although considering a previous legislative provision, discussed what I see as certain relevant aspects to a case such as this. In that case, there were many similarities to the case in question, although the application in Burton was made at a later period of time after release on parole. It was remarked that the main reason for the applicant seeking, at the stage in question, the removal of his licence disqualification was that he wanted to be able to keep his job and continue being a worthwhile member of society, rather than a drain on the public purse by seeking social security payments. While that is somewhat different from the applicant’s case here, it conveys the same sense of seeking, and demonstrating, civic responsibility. Similarly to the present case, the applicant there was, prior to his conviction, immature, emotionally unsettled and a somewhat irresponsible young man, which was a “vastly different picture than that presented” by the applicant before GN Williams J: at 332. Most importantly for the present consideration is the conclusion that the period of imprisonment represented, of itself, the significant penalty imposed by the courts. In that case, 10 years; in this case, nine. As with that case, the applicant will be subject to supervision on parole for some time to come. It was held, therefore, that that punishment represented the adequate penalty for an offence which was in that case one of manslaughter: also at 332.
What, though, in the end convinced GN Williams J to lift the disqualification was that it was “in the interests of the community” that a 31 year old man, although on parole, should be able to continue with a law-abiding self-sufficient lifestyle and not become a further burden on the public purse, which could be best achieved if he retained his employment and provided for his wife and family: also at 332.
Although each case is different, and although it was urged upon me by the Commissioner to rely upon other cases and that this application was premature, I am of the view that the whole of the circumstances of this case, including, importantly, the retention by the applicant of his present work – which clearly involves the income of other persons – and the clear demonstration of extensive and what appears to be, objectively, permanent rehabilitation, is sufficient to justify the exercise of this Court’s discretion for the removal of the disqualification.
Restrictions on licence
Although not realising it at the time, I raised with the Commissioner an issue that also arose in Burton. That is, limiting the applicant to driving which is directly connected with undertaking his work, say, for a period of two years only. The response I received was there was no power to do so. Upon a consideration of s 131(2C), as well as the other provisions of s 131 of the Transport Operations (Road Use Management) Act 1995, that is clearly so.
Nevertheless, I do urge those who have authority to issue any future license that, while giving full effect to the ability of the applicant to be able to drive vehicles relevant to the sub-contracting work that he is undertaking, to place some restriction upon his non-work use of such vehicles for at least a period of two years. It is also hoped that there is sufficient ability to liaise between the government authorities of Queensland and Tasmania so that any such restriction that might be imposed in Queensland is reflected in Tasmania.
Finally, should the applicant offend again in a way that reflects upon whether he should continue to be a licensed driver, the authority making such decision will, I hope, have drawn to its attention the attitude displayed by this Court to the applicant in accepting the seriousness of his continuing intention to be a law-abiding and responsible citizen.
Costs
No party has addressed me on the issues of costs, either in written material, or orally.
Since it is a significant indulgence that the applicant seeks, it is appropriate that the applicant should pay his own costs of and incidental to this application in circumstances where he has succeeded.
As for the Commissioner, the Commissioner has opposed the application and has been unsuccessful in that opposition.
Nevertheless, given all those circumstances, the appropriate order is to make no order as to costs.
Order
The order that is to be made is:
1. The application is granted.
2. The absolute disqualification order made in the District Court at Brisbane on 12 May 2005 is removed as from 11 March 2010.
3. There is no order as to costs.
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