Kennedy v Queensland Police Service

[2009] QDC 181

[2009] QDC 181

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D135 of 2009

MARK KENNEDY	Applicant
and
QUEENSLAND POLICE SERVICE	Respondent

MAROOCHYDORE

..DATE 19/06/2009

JUDGMENT

CATCHWORDS

Transport Operations (Road Use Management) Act 1995 section 131(2) - second application for removal of 4 years disqualification three months before its expiry - disqualification removed.

HIS HONOUR: This is an application by Mark Kennedy, under section 131 of the Transport Operations (Road Use Management) Act 1995, for removal of a suspension or cancellation of his driving licence.

On the 27th of September 2005, Judge Robertson ordered a four year disqualification as part of a sentence for an offence of dangerous driving causing death; Mr Kennedy's front seat passenger had been killed.  He imposed a sentence of four and a-half years imprisonment, which he ordered be suspended for four and a-half years after 15 months had been served.

An application was made to his Honour, which I note is reported at [2007] QDC 353 as Mark Leslie Kennedy, Applicant against Queensland Police Service, Respondent. Mr Kennedy strictly ought to have revealed that application and the fate of it to the Court today, but it would be unfair to hold against him, as a layperson, that he didn’t.

The application was refused, his Honour stating, towards the end of his reasons, "Mr Kennedy has not satisfied me at this early stage in the disqualification period, and only a few months after the statutory period of two years has expired, that it would be appropriate to exercise my discretion in his favour.  He may, of course, make an application in the future if he's so advised".

Effectively, his Honour was inviting Mr Kennedy to make this application.  The only reason for rejection of the former one was, it seems to me, that had Mr Kennedy served too short a period of disqualification after his release from custody, otherwise circumstances were favourable to Mr Kennedy, who has an unblemished record following his conviction for the serious indictable offence.

As frequently happens, he has work circumstances which make his inability to drive a serious problem.  The current employer now indicates that the difficulties of accommodating Mr Kennedy's restrictions are such that his employment may be in jeopardy. 

On the domestic front, Mr Kennedy's partner, who has been his driver (which police inquiries of neighbours tend to confirm as being the case) is heavily pregnant, expecting to give birth within a couple of months.  If she's still available as a driver, that is likely to be disrupted.

Mr Kennedy is now only three months from the end of the four year disqualification period. The ability to drive in modern conditions in our society is extremely important. In my opinion, the proper approach to section 131 subsection (2) in particular, is that the courts ought to be open to assisting an offender to resume a place in society with the ordinary privileges most of us enjoy, and, indeed, need.

Of course, an application under the provision is only likely to succeed where the character of the applicant warrants it. Anxious not to exhibit inconsistency with my own history of decisions under the section, I've consulted a number of previous decisions which, as it happens, illustrate an approach that were the applicants ought to be encouraged to seek their licences back after they've served a suitable period subject to the disabilities of not being able to drive. In Hooymans [2007] QDC 365, where there'd been a four year licence disqualification, that was removed, not at the point nine months before expiration of the four years, which I had been inclined to allow, but two months later in deference to an agreement between the parties.

In Muller [2006] QDC 328, there'd been an absolute disqualification which I removed six weeks short of the four year mark of its life.

In Ellison [2006] QDC 125, the effect of the order was to forgive five months of a five year disqualification.

In Keen [2006] QDC 326, again, there was a five year disqualification. I saw fit to delay the removal of it until the four year mark.

In Markusic [2006] QDC 327, there'd been a five year licence disqualification imposed. The removal of the disqualification was deferred for 13 months from the date of my order which was going to produce an effective disqualification of the applicant for 21 months following his release from prison.

I've been taking the same approach as did Judge Robertson who, in my opinion, correctly regarded the first application made by Mr Kennedy as premature.  The disqualification is hardly a punishment to a person in custody.  At that point in 2007, Mr Kennedy had been inconvenienced by it for only a few months.  But that's no longer the case, and I will today make an order removing his disqualification immediately.

…

HIS HONOUR:  I should've said that Ms Wainright for the police didn’t offer any opposition to the relief Mr Kennedy seeks now.

-----