Hayward v Queensland Police Service

[2009] QDC 95

DISTRICT COURT OF QUEENSLAND

CITATION:	Hayward v Queensland Police Service [2009] QDC 95
PARTIES:	MICHAEL GRAHAM HAYWARD v QUEENSLAND POLICE SERVICE
FILE NO/S:	D2/2009
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING  COURT:	District Court of Queensland
DELIVERED ON:	3 April 2009 (ex tempore)
DELIVERED AT:	Rockhampton
HEARING DATE:	3 April 2009
JUDGE:	Dearden DCJ
ORDER:	1. Application granted
2.  Transport Operations (Road Use Management) Act 1995

Pursuant to ss 131(2) and (2C) of the imposed by His Honour Judge Wilson on 3 April 2006 in respect of 2 counts driving unlicensed whilst disqualified by Court order and one count failing to provide a specimen of breath; and the absolute disqualifications imposed by His Honour Judge Wilson on 3 April 2006 in respect of one count driving under the influence of liquor and one count being in charge of a motor vehicle whilst under the influence of liquor, be removed as and from 21 July 2009

3.    No order as to costs

CATCHWORDS:	Application for removal of disqualifications of driver licence – Factors to be taken into consideration – Applicant’s previous bad criminal and traffic history – Commission of subsequent driving offences - Rehabilitation
LEGISLATION:	Transport Operations (Road Use Management) Act 1995 (Qld) ss (131) (2), (2C).
CASES:	Bartkowski v Commissioner of Police [2007] QDC 178
COUNSEL:	Mr J Clark for the applicant
Ms L Gilmore for the respondent
SOLICITORS:	Anne Murray & Co for the applicant
Queensland Police Service for the respondent

[1] HIS HONOUR: This is the decision in Hayward and the

Queensland Police Service, matter D2 of 2009, Rockhampton
District Court.

[2] This is an application under section 131 (2) of the Transport Operations (Road Use Management) Act, seeking the removal of the following disqualifications imposed by Judge Wilson SC in the District Court at Rockhampton on 3 April 2006 (coincidentally, exactly three years ago today). These disqualifications were:

- Driving under the influence of liquor on 15 June 2005:
absolutely disqualified.
- Being in charge of a motor vehicle whilst under the
influence of liquor on 8 May 2005: absolutely
disqualified.
- Driving unlicensed whilst disqualified by Court order
on 8 May 2005: disqualified five years.
- Driving unlicensed whilst disqualified by Court order
on 15 June 2005: disqualified five years; and
- Failing to provide a specimen of breath on 8 May 2005:
disqualified five years.

[3] The operative legislative provision is the Transport Operations (Road Use Management) Act s.131(2C), which provides as follows: "Upon hearing any such application [a reference to an application such as that before the Court today] the Judge of the … District 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 refused the application."

Background

[4] The background to this offending has been helpfully summarised by Ms Gilmore, who appears on behalf of the Queensland Police Service, and I refer to her outline of submissions. "On 24 April 2005, the applicant drove while under the influence and was subsequently disqualified from driving for 12 months on 26 April 2005. The applicant's blood alcohol reading was recorded as 0.212 per cent.

[5] Regardless of the disqualification, the applicant again drove under the influence on two further occasions, 8 May 2005 and 15 June 2005.

[6] The applicant also committed further criminal offences on 8 May 2005 and 14 and 15 June 2005, including arson and breaches of a domestic violence order.

[7] The applicant was sentenced for these offences on 3 April 2006, when the absolute disqualifications and five year disqualified driving sentences were imposed. On 3 April 2006, the applicant was also re-sentenced for the events as committed on 24 April 2005.

[8] Following a period of approximately 18 months incarceration, the applicant was charged with two further alcohol-related driving offences in February and April 2008. The applicant was riding a bicycle at the time the offences occurred.

[9] On 3 April 2006, the applicant was convicted of the

following offences committed on 8 May 2005:

- Driving while disqualified and failing to supply

Convicted and three months' imprisonment for each offence to be served concurrently and disqualified from driving for five years.

- Driving under the influence of liquor

Disqualified absolutely.

Obstructing police
- Term of imprisonment one month concurrent with other

sentences.

[10] On 3 April 2006, the applicant was convicted of the

following offences committed on 14 June 2005:

- Breach of domestic violence order

Term of one month's imprisonment to be served concurrently.

[11] On 3 April 2006, the applicant was convicted of the

following offences committed on 15 June 2005:

- Arson

Term of four and a-half years' imprisonment, wholly suspended after 18 months with an operational period of five years.

- Breach of domestic violence order

Term of six months' imprisonment to be served concurrently.

- Driving under the influence of liquor

Disqualified absolutely.

- Disqualified driving

Term of six months' imprisonment to be served concurrently and disqualified from driving for five years.

[12] On 3 April 2006, the applicant was also re-sentenced for the offences committed in breach of the probation order imposed on 26 April 2005 for the following offences:

- Driving under the influence of liquor

Term of imprisonment three months concurrent with other sentences.

- Assault occasioning bodily harm

Term of imprisonment three months concurrent with other sentences.

- Obstructing police

Term of imprisonment one month concurrent with other offences.

[13] The original offences committed on 24 April 2005 involved driving under the influence of liquor, assault occasioning bodily harm and obstructing police. The offences were of a serious nature, the applicant was convicted and a probation order imposed in the Emerald Magistrates Court on 26 April 2005.

[14] Following a period of incarceration, the applicant was again charged and convicted with driving under the influence of liquor after he was absolutely disqualified in April 2006.

[15] On 11 March 2008, the applicant was convicted of driving under the influence of liquor other than a motor vehicle with a blood alcohol level of 0.222 per cent. On 24 February 2008, the applicant was fined $300.

[16] On 22 July 2008, the applicant was convicted with driving under the influence of liquor other than a motor vehicle with a blood alcohol level of 0.255 per cent. On 27 April 2008, the applicant was fined $450." [I note that the offences for which he was dealt with on 11 March and 22 July 2008 relate, in each case, to the riding of a bicycle while having the blood alcohol levels referred to].

[17] The applicant refers to the circumstances of those subsequent offences of riding bicycles while under the influence of liquor at paragraphs 11 and 12 of his affidavit sworn 17 November 2008, filed 2 March 2009. The circumstances, as he attests to them, are as follows:-

[18] "The next entry in my traffic history is dated the 24th of February 2008, and this charge is one of driving under the influence of liquor other than a motor vehicle. With regard to this particular charge, I state that I cannot plead ignorance. On that evening, I had gone to a friend's birthday party and had a few drinks and decided to ride my pushbike home. I was riding past the police station when the police stopped me and breathalysed me.

[19] There is a further entry which appears for driving under the influence of liquor other than a motor vehicle dated 27th of April 2008. On that occasion, I had been at the Emerald Maraboon Tavern and I had been drinking a fair bit and decided that I was not going to ride my pushbike home. I considered walking to the Pines Takeaway with my bike to order a hamburger. I then got into a conversation with a young man who hassled me about riding my bike. I recall that I was in no condition to fight, however, this young man would not let up and he then told me to, 'Get on my bike and fuck off,' or words to that effect. I recall that my survival instincts kicked in as I could tell there was no talking sense to this man, so I got on my bike and rode across the road. At the same time I was riding across the road, the police drove past and apprehended me. Due to previous charges, I recall that I was fined about $450."

[20] At paragraph 13 of the applicant's affidavit, he
critically states the following:-

"I have not driven since the absolute disqualification was imposed. I have not been convicted interstate or elsewhere of any driving offences." I infer from that that the applicant is referring to not driving a motor vehicle (he having acknowledged, of course, his riding of a bicycle while affected by alcohol at the relevant times for which he has convictions on his traffic history).

Current Situation

[21] The applicant is currently employed at Emerald Carrying Company where he's worked for the past four years. He holds down a supervisory role and earns $1,100 per week gross (see paragraphs 17 and 18 of the applicant's affidavit).

[22] At paragraphs 19-23 of the applicant's affidavit, he
states the following:-

"Not having a licence has proved to be a significant impediment to the performance of some of [sic] duties with Emerald Carrying Company. Having a licence would mean that I am not restricted to yard duties solely, and can perform various tasks that I would normally be asked to do as part of my employment. I do require a licence to perform my job.

If I was to re-apply for my driver licence, it would prove to be a great benefit as it would allow me to work and travel to various areas for work purposes, and I would not have to rely on other workers to drive me places.

…

I have continued to work in my present employment despite the loss of my driver licence, and this has proved extremely difficult for me.

Not having a driver licence for three years, I am very aware that the ability of holding a driver licence is a privilege and not a right. I understand that it is also a privilege not to be abused and, given the steps that I have taken to improve my life, I would make every effort not to abuse this privilege should it be restored. I realise that the laws which I have contravened in the past are for the protection of the public generally and must be obeyed. If this application is granted, I have no intention of committing any offence which may lead to another loss of my driver licence."

[23] The applicant acknowledges that he is an alcoholic. He has attended Alcoholics Anonymous (AA) weekly since his release from prison (which I calculate around 2 October 2007). The applicant is now the secretary/treasurer of the Emerald branch of AA. He attests to having been alcohol free "for some time now" (applicant's affidavit, paragraph 15) without, however, being specific on the relevant timeframes. Clearly, the blood alcohol concentration readings for the offences committed on 24 February 2008 and 27 April 2008 indicate the consumption of significant quantities of alcohol on each occasion, although I note in the applicant's affidavit at paragraph 11 he refers to having gone to a friend's birthday party and "had a few drinks". Although those consuming alcohol regularly underestimate the number of drinks they've consumed, that would seem to be, at best for the applicant, a significant understatement.

[24] As Judge Durward SC pointed out in Bartkowski v. Commissioner of Police [2007] QDC 178 at paragraph 22, the provisions of section 131 (2C) of the Act require a Judge hearing an application to have regard to the following:-

(a) Character of the person disqualified;
(b) The person's conduct subsequent to the order;
(c) The nature of the offence; and

(d) Any other circumstance of the case.

[25] Mr Clarke, on behalf of the applicant, stresses in

his submissions (both written and oral) the following:-

(1) There has been no further criminal offending by the
defendant since his sentence on 3 April 2006.
(2) The defendant has acknowledged his alcoholism.
(3) The defendant has been attending on AA (and therefore
receiving assistance in dealing with his alcoholism).
(4) That there are difficulties (although, ultimately,
not fatal difficulties) for the applicant's employment
while he doesn't hold a drivers licence.
(5) The potential effect of the global financial crisis
on the applicant's employment situation (in that respect
I note that judicial notice of press reports would
indicate ongoing employment difficulties for the mining
industry and, of course, those companies and services
which are reliant on the mining industry).
(6) The ongoing and salutary effect of the suspended
sentence imposed by Judge Wilson on 3 April 2006 which
has an operational period that doesn't expire until 2
April 2007.
[26] Ms Gilmore, on behalf of the Commissioner of Police,
submits, accurately, that the material does not reveal
that the applicant requires a licence to maintain
employment, nor does the material indicate that the
applicant will suffer financial hardship if he is without
a licence.

[27] It is clear, in my view, that the applicant has sought to deal with the alcoholism which clearly underpins his offending which has resulted in the five year and absolute disqualifications to which this application today relate. The applicant has not committed any further criminal offences since 3 April 2006, so it could be said, in respect of his character when taking into account his work history, that he has clearly taken steps to rehabilitate himself, particularly taking note of the most serious of the offences for which he was sentenced before Judge Wilson, namely the arson.

[28] The applicant has, however, committed the two offences of riding a bicycle while under the influence of liquor, which indicate ongoing difficulties, in early 2008 at least, with alcohol. Were it not for those two offences occurring as they did within a relatively short period of time between each other, and each involving very high readings in respect of the blood alcohol concentration, this application today would perhaps have been much more straightforward.

[29] In my view, it is appropriate, in balancing the competing considerations, to make an order removing the relevant disqualifications, but to do so not from today but from a future specified date. In all of the circumstances it is, in my view, appropriate to order that all of the disqualifications (the five year disqualifications and the absolute disqualifications) be removed effective 21 July 2009. I note that that date is a period of exactly 12 months from the applicant's most recent conviction for riding a bicycle under the influence of liquor. That is, in my view, a timeframe sufficient for the applicant to appreciate the importance of avoiding the consumption of alcohol, particularly in connection with the use of any vehicle or, for that matter, any other form of transport, be it a motor vehicle or otherwise.

[30] The applicant should, of course, ensure that he does not actually drive a motor vehicle until the order which is required by this Court has been settled, and further, of course, that he's been issued with the appropriate licence by the relevant department.

[31] The applicant, in his material, has clearly indicated that he understands the status of a driver licence as a privilege, and I urge upon him his reflection upon that portion of his affidavit. It is clear, in my view, that any return by the applicant to the use (and misuse) of alcohol would make it almost inevitable that the licence would be put at risk and, of course, that his freedom would be put at risk if he were to breach the suspended sentence imposed by Judge Wilson.

[32] I order as follows:-

(1) Application allowed.

(2) The five year disqualifications imposed by Judge

Wilson on 3 April 2006 in respect of:

[1] Driving unlicensed while disqualified by Court
order on 8 May 2005
[2] Driving unlicensed whilst disqualified by Court
order on 15 June 2005
[3] Failing to provide a specimen of breath on 8 May

2005;

and the absolute disqualifications imposed by Judge

Wilson on 3 April 2006 in respect of the following:

- Driving under the influence of liquor on 8 May
2005, and
- Being in charge of a motor vehicle whilst under

the influence of liquor on 8 May 2005;

be allowed as and from 21 July 2009.