Johnson v DPP (Qld)

[2009] QDC 300

DISTRICT COURT OF QUEENSLAND

CITATION:

Johnson v DPP (Qld)[2009] QDC 300

PARTIES:

SHANE ANTHONY JOHNSON

(Applicant)

AND

DIRECTOR OF PUBLIC PROSECUTIONS (QLD)

(Respondent)

FILE NO/S:

D47/08

DIVISION:

Civil

PROCEEDING:

Application for removal of licence disqualification

ORIGINATING COURT:

District Court, Goondiwindi

DELIVERED ON:

6 August 2009 (delivered ex tempore)

DELIVERED AT:

Goondiwindi

HEARING DATE:

6 August 2009

JUDGE:

Irwin DCJ

ORDER:

The disqualification of driver’s licence imposed on the applicant in the Toowoomba District Court on 7 March 2007 be removed as from 6 August 2009 pursuant to s 131(2) of the Transport Operations (Road Use Management) Act 1995.

CATCHWORDS:

CRIMINAL LAW – Driving Offences – dangerous operation of a motor vehicle – driving whilst adversely affected by an intoxicating substance namely alcohol

APPLICATION FOR REMOVAL OF LICENCE DISQUALIFICATION – Section 131 of the Transport Operations (Road Use Management) Act 1995 – where original period of disqualification was three years – demonstrated a genuine commitment to rehabilitation – demonstrated that he is a fit and proper person to hold a driver’s licence

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

Kennedy v Queensland Police Service [2007] QDC 353, distinguished

Lolagis v Chief Executive Officer Queensland Transport [2002] QDC 162, applied

Nolan v The Queen [2009] QDC 216, applied

COUNSEL:

R.F.G. Finlayson for the applicant

W. Kelly for the respondent

SOLICITORS:

R.F.G. Finlayson and Associates for the applicant

Queensland Police Service Solicitors Office for the respondent

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN  

SHANE ANTHONY JOHNSON	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

GOONDIWINDI

..DATE 06/08/2009

ORDER

HIS HONOUR:  The applicant, Shane Anthony Johnson, pleaded

guilty in the District Court at Toowoomba on 7 March 2007 on

an ex officio indictment to one count of dangerous operation

of a motor vehicle with a circumstance of aggravation in that

at the time he was adversely affected by an intoxicating

substance, namely alcohol, although the blood alcohol

concentration is not stated in the record of proceedings, or

the criminal history.  Neither of the legal representatives

who have made submissions to me this morning have been able to

identify what that blood alcohol concentration was.

He also pleaded guilty on that date to one count of driving a

motor vehicle without a driver licence while disqualified by a

Court order.  Each of each offences arise out of the same

course of driving which occurred on 9 July 2006.  The

applicant was convicted of both offences.  In respect of the

indictable offence, a conviction was recorded and he was

sentenced to imprisonment for two years with a parole release

date fixed at 1 September 2007.  He was convicted and not further punished for the summary offence.  His Honour further ordered that he be disqualified from holding or obtaining a driver's licence for a period of three years.

The applicant duly served his term of imprisonment and was

released from prison on 31 August 2007 in accordance with

his Honour's order.  The period of disqualification of his

driver's licence continues and does not terminate until

6 March 2007, that is, seven months' hence.

The applicant now applies pursuant to the provisions of

section 131(2) of the Transport Operations Road Use Management

Act 1995, which I will henceforth refer to as "the Act", to

remove the disqualification of his driver's licence imposed by

the sentencing Judge.

Section 131(2c) of the Act provides:

"Upon hearing any application the Judge of the District Court
constituting a Court may, 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 either by order remove
the disqualification and from such date as may be specified in
the order or refuse the application."

In his affidavit in support of his application the applicant

states, in addition to referring to the circumstances of the

offence, that upon his release from gaol he returned to work

straightaway with his employer prior to his incarceration.  He

worked with this employer as a labourer for 12 months before working in the same capacity for another firm for one month, and then joining his current employer Wagners as a load operator in the coalmines.  He has now worked for them for close to a year.

Whilst working at the mines he is regularly drug and alcohol

tested. Proven alcohol or drug consumption during working

hours would mean instant dismissal.  He has not driven a motor

vehicle since his convictions on 7 March 2007.  He understands

that the holding of a driver's licence is a privilege and not

a right.  He fully comprehends the importance of obeying the

traffic laws in respect of the safety of other road users and

in respect of his own safety.  The prospect of losing his

employment by not having a driver's licence has reinforced

that belief.  And on 14 February 2009 he successfully

completed a defensive driving program which included a segment

involving the use of fatal vision (drug/alcohol) goggles.

In relation to the prospect of losing his employment, he

deposes in paragraph 6 of his affidavit as follows:

"Currently my employer has to transport me to work sites which
is inconvenient for them and which I am informed is a
situation which cannot continue in the long term.  My employer
has informed me that I will lose my employment if I do not
have a driver's licence shortly."

That statement was made and sworn to on the 24th of April

2009.  I note that an undated reference from his employer

which is exhibited to his affidavit is complimentary of his

character and work ethic but makes no mention of his prospect

of losing employment in these circumstances.

In the respondent's submission, he refers to there being no

evidence before the Court which suggests that the applicant

would lose his employment if he is unsuccessful in obtaining

his driver's licence.  The most relevant document in this

regard is Exhibit 1, which was tendered to me this morning.

It is a communication from Mr Staib, his employer's site supervisor at the mine site where he is currently working.  This site is approximately 35 kilometres west of Chinchilla.

It states that it is the appellant's responsibility to find

his own way to and from camp to Toowoomba each rotation.  I

note that the applicant lives in Toowoomba.  Mr Staiv also

states that:

"On site it is a requirement to have a Queensland driver's
licence to obtain a light vehicle authorisation.  Without a
licence it is becoming very difficult having somebody else to
drive him about for smoko and lunch as he operates a loader in
the gravel pit on the far end of the mine.  This is an issue
because it is costing us valuable time and money where he
could be driving himself."

On the other hand, Mr Kelly who appears for the respondent advises me that he has spoken to Mr Dennis, the employer's program manager, and that Mr Dennis has said that the applicant would not lose his employment as long as he can get himself to and from work.

What emerges from what Mr Staiv has said and what Mr Dennis

has said is that there now appears to be some hardening of

attitude on behalf of his site supervisor and at the same

time, his employment does require him to get himself to and

from work.  This involves him arranging other people to drive

him from Toowoomba to Chinchilla, at which point he can be

taken to the work site by his employer.  If such a person may

not be available to drive him to the site on a particular

occasion, then, potentially, his employment could be in

jeopardy.  There also the difficulty in his being able to

arrange transport from the work site back home.  I will refer

to this further shortly.

In any event, the applicant states that having a driver's

licence would enlarge his employment opportunities by enabling

him to work on mine sites and earn better money.  I understand

from what Mr Finlayson has told me this morning that he is

currently earning better money because he is working on a mine

site.  What Mr Finlayson stressed is the importance of him

having a driver's licence so that this situation can be

maintained.

I note that he is in a de facto relationship with one

dependent child aged eight years and, according to the

financial information recorded in his affidavit, he is

currently paying off a mortgage.  He says in paragraph 12 of

his affidavit:

"If I had a driver's licence, I would be able to arrange my
own transport to and from work sites without having to rely on
Wagners to personally organise the same.  When I was working
in Middlemount, we would work 10 days on and five days off.
We had to organise our own transport home.  I was sometimes
unable to organise transport home and, by not having a
driver's licence, I would have to stay at Middlemount on my
days off."

From what I have been told this morning, he is unable to

remain at the Chinchilla work site on his days off and again,

as I have observed, he has to find a way home without his

driver's licence.

In addition, the lack of a driver's licence has affected him

on a personal level.  He has to continually rely on his

partner to drive him to destinations.  This is inconvenient

for her.  When she cannot assist in this way he has to rely on

friends to do so.  This becomes quite expensive as he has to

contribute to their fuel costs.

The applicant says that when he was in prison he worked in the

community on a work camp program for two months.  He believes

that he was a good prisoner without any marks against his name

or breaches while he was in gaol.

He has also exhibited to his affidavit what are described as

references to his character, copies of his criminal and

traffic history and, in addition, the certificate that he

undertook the defensive driving course.  Two of the references

are not dated, although they refer to information relating to

the period after he commenced to work for Wagners, which I

understand was in May of 2008.  The respondent submits that

three of the four references do not speak of his character,

although I consider that two of the references do.  These are

the references from Mr Wagner and Mr Kelly.

Although the criminal history exhibited to his affidavit is

complete, the traffic history is not as it commences in

June 2005.  This is probably because the request for a traffic

history has resulted in only a particular segment being

provided by the Department of Transport.  I do not criticise

the applicant for this.  Fortunately, a summary of his traffic

history was provided to the sentencing Judge.

The applicant's submissions principally rely on his affidavit.

Essentially, it is submitted that he has satisfied the

criteria set out in section 131(2c) of the Act to allow the

Court to exercise its discretion favourably on his application

and order that his disqualification be removed.

The applicant further submits that he has now been within the

community since release from prison for 23 months during which

time he has not re-offended in any way and has therefore

demonstrated that he is a fit and proper person to hold a

driver's licence.

The respondent essentially submits that the Court should

exercise a substantial degree of caution in considering the

return of an applicant's driver's licence in the circumstances

and should not exercise that discretion except in

circumstances where it is confident that the elements

specified in section 131(2c) have been met. Ultimately, the

respondent submits that the application is not supported.  It

is not submitted that the application should be refused.

Mr Kelly confirms that, in this case, the respondent is

adopting a neutral stance in relation to the application.

In the respondent's submissions reference is made to the

serious nature of the offence of dangerous driving with a

circumstance of aggravation, the applicant's previous criminal

history and his traffic history, which is described as

"appalling".  It is noted however, in the respondent's

submission, that his last criminal and traffic convictions

were on 7 March 2007 in relation to the two offences which

have resulted in his three-year licence disqualification.  It

is also submitted by the respondent that there is no evidence

before the Court which suggests that the applicant will lose

his employment if he is unsuccessful in obtaining his driver's

licence.  I have already made comment about this submission.

In determining whether I am satisfied on the balance of

probabilities that it is proper to remove the applicant's

disqualification of his driver's licence, and if so from what

date, I have regard to each of the matters listed in section

130(2c).

With reference to the applicant's character, the material

before the Court supports the observation of one of his

character referees, Mr Kelly, who says:

"I have known Shane Johnson for 10 years.  In that time he has
been in and out of trouble and was wild in nature."

As the sentencing Judge observed in relation to the

36-year-old applicant:

"So far as the criminal history is concerned there are a
number of offences which suggest to me that you had problems
with alcohol in the 1990s.  There does seem to have been a
period towards the end of that decade and early 2000 when you
kept out of trouble for a time.  There have been a few
offences - just a few - in more recent years."

This is supported by his criminal history, which shows that

between 1990 and 1998, in addition to what might be described

as street offences, he had been convicted once each of assault

occasioning bodily harm, assault occasioning bodily harm in

company and stealing, and on two counts of supplying a

dangerous drug.  He was sentenced to a wholly suspended term

of six months' imprisonment on the charge of assault

occasioning bodily harm in company.

Between 2002 and his conviction for these offences in 2007 he

was fined for another count of assault occasioning bodily harm

and also for a wilful damage and a public nuisance.

On 6 February 2007 he was dealt with for breaching a

protection order and for a breach of probation.  The probation

order had been imposed on the 16th of January 2006 for driving

under the influence of liquor with a .057 blood alcohol

content and also unlicensed driving.  On that occasion his

driver's licence had been disqualified for six months.  The

current offences for which he was convicted in 2007 were

committed in breach of that probation order and the licence

disqualification.

On the 6th of February 2007 he was fined for the breach of the

probation order and that order was allowed to continue.  He

was admitted to a further period of 12 months' probation with

a special condition that he attend a domestic violence

perpetrators program.  Against this background and imposing

sentence, his Honour said:

"Having taken all of those matters into account, I still
remain of the view that because of your criminal history, and
more particularly because of your driving history, I must
impose a sentence of imprisonment and some actual time must be
served.  I intend to reflect those matters which go to
mitigation by ordering an earlier parole release date than
would otherwise be the case."

His Honour accepted that the applicant had seven previous

drink driving convictions.  He also said that the appellant

had been before the Court numerous times for driving whilst

disqualified and unlicensed.  It was his criminal, and more so

his traffic history, which in his Honour's view compounded the

seriousness of the offences.

However, the appellant's counsel submitted to his Honour with

reference to the probation order that he had responded well to

it, that he had undertaken various courses to address problems which he had with alcohol, that he had sought the assistance of a doctor or medical practitioner and had responded well to

treatment and advice that had been given to him.

This submission is consistent with his conduct subsequent to

the order to which I will refer because this demonstrates

that, as Mr Kelly says in his reference, over the past

12 months he has matured and does not drink any more.

Therefore, while his character before these offences has been

poor, there has been a significant improvement since that

time.

In this regard it is relevant that not only has he not been

back before the Courts since March of 2007, a period of two

years and five months, but also these offences committed on

9 July 2006 were his last offences.  They were committed just

over three years ago.  The applicant's conduct subsequent to

the disqualification order has been exemplary in that he has

not re-offended in any way and has successfully completed his

parole without incident.

He has been gainfully employed since his release on parole on

31 August 2007 and is well respected by his employer and those

who work with him.  The reference by employer, Mr Wagner, says

of him:

"Shane has shown to be of sound character.  His attendance and
work ethic in dealing with both the public and his fellow
workers has been excellent."

The references from Messrs Sherwin and Thomas are also

consistent with his work being of good quality and of his

having a good work ethic.  In his reference, Mr Kelly also

says:

"We have been employed by Wagners in their mine operation at
German Creek where Shane was in charge of the production end
loader, placing a lot of responsibility on him which he
handled with ease.  There was also random drug and alcohol
tests he never failed.  He is paying off a house and would
like to have a stable relationship with the mother of his son.
I am convinced he has learnt his lesson and would treat a
licence to drive with respect.  I am a father of six with a
solid background and know I have an influence on Shane."

In addition, as I have noted, he has attended the defensive

driving program of his own volition and successfully completed

it, demonstrating his genuine commitment to rehabilitation.

He makes this application with a view to enlarging his

employment opportunities and consequent earning capacity, and

certainly with the motivation of maintaining his current

employment at the mine site with the increased earning

capacity which that provides.

This will undoubtedly assist him in paying off his mortgage on

the house and providing a stable environment for him, his

partner and his son.  This would also be a contributor toward

his rehabilitation.

I accept that the offence was a serious one.  The

circumstances of the offending are summarised in the

respondent's outline of submissions with footnoted page

references.  As this is consistent with his Honour's

sentencing remarks, it is convenient to adopt it for the

purpose of my decision.  The circumstances of the offending

are therefore as follows:

"On 9 July 2006 the applicant had been drinking from lunchtime
at a hotel.  Later that day the applicant had taken a taxi
home with a friend.  He later took some sleeping tablets.
Some time later the applicant received a telephone call which
he found distressing and involved his partner from whom he
was, at the time, estranged.  The applicant then drove his
motor vehicle and subsequently collided with another vehicle.
The applicant then supplied a false name and drove off.
Within a short distance the applicant collided with another
vehicle, causing that vehicle to collide with a third vehicle.
The damage caused was in excess of $20,000."

Reference is made in his Honour's sentencing remarks to some

of the occupants of the vehicles suffering from whiplash.

I note, as the respondent points out, that in paragraph 9(a)

of his affidavit the applicant expresses a different

recollection as to when he took the sleeping tablets, saying

that he took them after receiving the distressing news about

his partner.  I do not proceed on the basis of this

recollection but give the applicant the benefit of the doubt

that, as submitted by Mr Finlayson, the difference in his

account at this point of time is simply the result of a fading

in recollection over the passage of time.

Despite the very serious nature of the offence which the

respondent, in any event, accepts is not towards the top of

the scale, because it did not involve any death or grievous

bodily harm, I am satisfied for the reasons I have given that

since this offending has occurred, and particularly since his

Honour's order, the applicant has demonstrated a conscientious

attitude towards rehabilitation.

In relation to other matters, I note the observation by the

respondent that there is no evidence that suggests that the

applicant will in fact lose his employment if he is

unsuccessful in his appeal.  This is true.  However, unlike

other provisions of the Act, it is not essential for the Court

to be satisfied that a suspension would cause extreme hardship

to the applicant or the applicant's family by depriving him of

the means of earning a living.  I refer, for example, to

sections 29(2) and 30D(2) of the Act.

Nor is it necessary to establish this by affidavit evidence.

That, of course, is not to say that the issue of whether or

not he will lose employment if unsuccessful on the appeal is

irrelevant.  Mr Kelly, for the respondent, has referred me in

that respect to the decision of Judge Robertson in Kennedy v.

QPS (2007) QDC at 353 where despite other circumstances

favourable to the applicant in that case, including the fact

he was considered as being fully rehabilitated, his Honour

rejected the application in circumstances where there was

nothing to suggest he would lose his employment should the

disqualification continue.

However, in the present case what is relevant is that on the

material provided this morning, the potential of the applicant

losing his employment emerges from Mr Staib's correspondence

and his continued employment, according to Mr Dennis, depends

on his being able to get to the work sites on time and that

this, in turn, depends on the availability of other people to

drive him from Toowoomba to Chinchilla.  As I have said,

particularly so far as his site supervisor is concerned, there

appears to be a hardening of attitude by his employer to the

absence of his driver's licence.  It appears that the patience

and forbearance that they have shown to date is wearing thin.

Further, it is relevant that the removal of the licence

disqualification will at least ensure that he will be able to

continue to engage in employment activities which enlarge his

earning capacity, thereby enhancing his rehabilitation.

For completeness, I observe that I do not consider the

inconvenience to the applicant and his wife arising from the

licence disqualification in his day-to-day life is a factor in

favour of removing it.  Some level of inconvenience can always

be expected to flow from a disqualification.  If it did not, a

disqualification would not have the essential deterrent

effect.  However, it is another matter when there is an

indication of the potential loss of employment arising from

his not holding a driver's licence.

Generally, the applicant has shown genuine remorse, as

expressed in his affidavit, for his serious criminal

misconduct and has further shown a willingness to become a

useful member of society.  This is the conclusion that

Judge Tutt recently came to in Nolan v. The Queen (2009)  QDC

216 in removing a licence disqualification pursuant to

section 131(2) of the Act.

In that case his Honour applied the statement of Williams J in

Burton v. Commission of Police (QLD) (1990) 10 MVR at 322

that:

"It is in the interests of the community that this young man
be able to continue a law abiding, self sufficient lifestyle
and not become a further burden on the public purse.  He can
do best if he is able to retain his employment and provide for
his wife and family.  In my view, he has been punished enough
and he ought to be given the opportunity of driving a motor
vehicle again so that he can further his law abiding, self
sufficient lifestyle."

These comments are also apposite to the present case, although

the applicant is not a young man.  In my view, he can do best

if he is not only able to retain his employment but is also

able to ensure that he can continue to engage in employment

opportunities which will enlarge his earning capacity and

provide for his wife and family.  In my view, he ought to be

given the opportunity of driving a motor vehicle again so that

he can further his law abiding, self sufficient lifestyle.

Having said this, I am conscious that in disqualifying the

applicant's driver's licence for three years his Honour was

bound by section 78(3) of the Act to disqualify him for a

period of between two and five years.  In these circumstances

I have considered whether the disqualification imposed on the

applicant on 7 March 2002 should not be removed until the

halfway point between two and three years - that is, after the

passage of another month - or possibly for a period of another

two months in accordance with the alternative submission made

to me by Mr Kelly today.

Consistently with section 131(2c) this removal may be

effected from a specified future date as confirmed by

Judge Wilson in Lolagis v. Chief Executive Officer Queensland

Transport (2002) QDC 162 at page 4. However, I have concluded

that in circumstances in which, as I have said, Mr Staib's

correspondence demonstrates some loss of patience by his

employer, at least on the site where the applicant is working,

there is now a potential that his employment could be lost if

there is further delay despite the tolerance which his

employer had shown over the period of three months since the

application was initially filed.

In these circumstances, given that I consider that his

continued employment is important to his continued

rehabilitation, my order is that the disqualification of

driver's licence imposed on the applicant on 7 March 2004 be

removed from this date, 6 August 2009, pursuant to

section 131(2) of the Act.

I thank both legal representatives for their assistance.

Unless there are any further orders sought, that is the order

of the Court.

MR FINLAYSON:  Thank you, your Honour.  I have a draft order.
Did you want me to hand that up, your Honour?

HIS HONOUR:  Yes.  Has Mr Kelly seen it?

MR FINLAYSON:  I don't believe so.  It just merely states,
"The disqualification imposed in the Toowoomba District Court
on 7th March 2007 be removed as from" - it says "3rd August".
I assumed it was going to be on last Monday, but that can be
changed.

HIS HONOUR:  I can change that.

MR FINLAYSON:  Do you have any objection if I hand that up,
Mr Kelly?

INSPECTOR KELLY:  No.

MR FINLAYSON:  Does your Honour just require one?

HIS HONOUR:  I believe one is enough for the file and then it
can be given to the Registrar so that the order can be
settled.

MR FINLAYSON:  Just those two dates will have to be changed,
the one where it has date 3rd August and the one in the actual
date, your Honour.

HIS HONOUR:   So the order will be that the disqualification

imposed in the Toowoomba District Court on 7th March 2007 be

removed as from 6th August 2009 in accordance with the draft

which has been initialled and dated by me on this date.  That

document will be placed with the file so that it can be

perfected.

-----