Kennedy v Queensland Police Service

[2007] QDC 353

[2007] QDC 353

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBERTSON

MARK LESLIE KENNEDY	Applicant
and
QUEENSLAND POLICE SERVICE	Respondent
MAROOCHYDORE ..DATE 13/12/2007
ORDER

13122007 T1-08-10/LG(MARO) M/T MARO-01 (Robertson DCJ)

HIS HONOUR: Mark Leslie Kennedy applies, pursuant to section	1
131(2) of the Transport Operations (Road Use Management) Act
1995 (the TORUM), for removal of a disqualification of licence
imposed by me in this Court on the 27th of September 2005 as
part of a sentence following upon Mr Kennedy's plea of guilty	10
to dangerous driving causing death while adversely affected by
alcohol.
It follows that on the date he filed his application, the 26th	20
of October 2007, this was just over two years after the
imposition of the sentence imposed in 2005. As part of that
sentence and obviously, the most significant part of the
sentence, Mr Kennedy was sentenced to four and a-half years'
imprisonment and was required to serve 15 months before that	30
sentence was suspended That suspended sentence remains in
place.
Section 131(2C) of the TORUM directs the Court in considering	40
the application in the following terms:

"Upon hearing any such application, the Judge of the
Supreme Court or District Court or Justices constituting
the Court may, as is thought proper, having regard to the

character of the person disqualified and the person's	50
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 refuse the application."

ORDER

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13122007 T1-08-10/LG(MARO) M/T MARO-01 (Robertson DCJ)

I will deal firstly with the nature of the offence. The brief	1
circumstances of the offence are that after drinking and
partying with some friends on the 9th of February 2003, Mr
Kennedy made the fateful decision to drive a relatively short
distance at Mudjimba to obtain food. The young woman, Jasmin	10
McDonald who was killed, was his new girlfriend at the time.
She was in the front passenger seat, two other friends sat in
the rear seat.
20
Clearly, as a result of Mr Kennedy's intoxication, he failed
to see a light Pantec truck which was parked on the side of
Mudjimba Beach road and his vehicle slammed into the back of
the truck and Miss McDonald was killed and the two friends
were injured but not to the extent of sustaining grievous	30
bodily harm. Mr Kennedy also sustained injuries. He had a
blood alcohol reading expressed as a percentage of alcohol in
his blood of .183; objectively, a very high reading.
40
Mr Kennedy had a relevant traffic history which was clearly a
fact bearing upon the sentence including the period of
disqualification. He was born on the 20th of June 1980. The
first entry was for an offence of unlicensed driving on the
50
22nd of April 1999 for which he was fined. On the 22nd of April 1999, the same day as the first offence, he was also
convicted of exceeding the speed limit by at least 15
kilometres but less than 30 kilometres and was fined for this

ORDER

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13122007 T1-08-10/LG(MARO) M/T MARO-01 (Robertson DCJ)

offence as well. On the 2nd of February 2003, he was	1
convicted of exceeding the speed limit by at least 15
kilometres per hour but less than 30 kilometres an hour and
was further fined.

10

There were other minor entries in February of 2003 which was

the month in which the offence was committed. After the

accident and prior to his sentence on the 13th of June 2005,

he was convicted of a further offence of speeding, which	20
incident occurred on the 16th of April 2005. Although
objectively it is not a particularly serious traffic history,
clearly the offence of speeding some five months before his
appearance in Court to plead guilty to the dangerous driving
causing death in 2003 was an aggravating feature. Mr Kennedy	30
has no relevant criminal history either before or since the
accident.
I have read and considered his affidavit filed on the 9th of	40
November 2007 and the statutory declaration of his present
employer, Mr Daniel Heitbaum of Murphy Builders Concrete,
together with a letter from his previous employer, Mr Wilksch
of Palmwoods Landscaping Company, and the letter of reference
50
under the hand of Bruce Gleeson, Solicitor, dated the 12th of December 2007 which was tendered today.

ORDER

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13122007 T1-08-10/LG(MARO) M/T MARO-01 (Robertson DCJ)

I accept without question that Mr Kennedy has done his very	1
best to fully rehabilitate himself after this incident.
As I indicated in my sentencing remarks, there is no doubting
his deep remorse. As I observed, he made a plea for
forgiveness to the family of the deceased woman in Court; a	10
most unusual circumstance and very much to his credit.
Since he has served his term of imprisonment, he has gained
and maintained full-time employment. He has recently married	20
and with family assistance has been able to purchase a
townhouse as his principal place of residence. As he says, he
is now married, fully employed with a mortgage and there is no
question that he is now a responsible member of the community.
30
As I apprehend his application, the main focus is on the
difficulties that he and his wife undoubtedly face as a result
of the disqualification. His wife also works and she is
required to drive him to work sometimes in the early hours of	40
the morning and to pick him up in the afternoon. This
undoubtedly places additional strains upon both of them.
His application also relies relevantly on his rehabilitation.
50
Mr Heitbaum does not suggest that Mr Kennedy's employment would be in jeopardy were the disqualification to continue.
However, Mr Kennedy submits to me this morning that, in
effect, his work is held back at a particular level and that

ORDER

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13122007 T1-08-10/LG(MARO) M/T MARO-01 (Robertson DCJ)

he cannot advance in the company without a driver's licence.	1
There can be no question that a driver's licence for a builder
or a person working for a builder is obviously an important
facility.

10

The licence disqualification was a part of the sentence, and

an important part of the sentence, although clearly as

Williams J (as his Honour then was) observed in Burton v.

Queensland Police Service (1990) in 45A Crim R 315, a case	20
where the applicant for removal of disqualification under the
previous legislation governing such application had been
convicted of manslaughter arising out of a driving accident at
a time when he had a blood alcohol reading of .13, and had
been sentenced to 10 years' imprisonment and disqualified	30
absolutely from holding a driver's licence; the period of
imprisonment is obviously the most significant aspect of the
punishment.
40
The applicant in that case had a worse traffic history but
otherwise, his circumstances were not dissimilar at the time
of the making of the application to Mr Kennedy. Justice
Williams did allow that application. However, it is relevant
50
that the applicant had then served seven and a-half years of the absolute disqualification.

ORDER

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13122007 T1-08-10/LG(MARO) M/T MARO-01 (Robertson DCJ)

There is no doubt that section 131 (2C) creates a wide	1
discretion that must be exercised by the Court, having regard
to all relevant circumstances. In this case, the matters that
are relevant are the nature of the offence which was very
serious and that the application is made just over half-way	10
through the disqualification period of four years. I am of
the opinion the applicant, Mr Kennedy, is fully rehabilitated
and there is no conduct subsequent to his disqualification to
indicate that he has offended against any law of the State and	20
there are undoubted difficulties attending the absence of a
licence in his work situation but it is not suggested that he
would lose his employment were the disqualification to
continue.
30
The case is wholly distinguishable from cases such as Ellison
v. Queensland Police Service (2006) QDC 125 where the five
year disqualification period had only five months to run and
the applicant needed a licence to attend rehabilitation for a	40
supervening work injury. Even in those circumstances, his
Honour Judge Robin QC, in lifting the disqualification, was
heavily influenced by the attitude of the Commissioner which
was to not oppose the application. Here, the Commissioner's
50
attitude is neutral but Ms Dixon, on behalf of the Commissioner, has submitted "that caution should be exercised
in considering whether the disqualification should be removed
in this case."

ORDER

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13122007 T1-08-10/LG(MARO) M/T MARO-01 (Robertson DCJ)

In my view, the applicant, Mr Kennedy, has not satisfied me at	1
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,	10
if he be so advised. It follows that the application is
refused.

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ORDER

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