Kirby v Director of Public Prosecutions

[2012] QDC 357

DISTRICT COURT OF QUEENSLAND

CITATION:

Kirby v Director of Public Prosecutions  [2012] QDC 357 (delivered ex tempore)

PARTIES:

Brendan Alfred Kirby
(Applicant)

AND

Director of Public Prosecutions
(Respondent)

FILE NO/S:

4281/2012

DIVISION:

PROCEEDING:

Application for removal of licence disqualification

ORIGINATING COURT:

District Court

DELIVERED ON:

23 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2012

JUDGE:

Samios DCJ

ORDER:

1.   Order the Applicant’s disqualification from holding or obtaining a drivers licence on 14 November 2008 be removed.

CATCHWORDS:

VEHICLES AND TRAFFIC - licensing of drivers - where applicant was disqualified from obtaining or holding a drivers licence - where applicant applies to the court to remove the disqualification

Transport Operations Road Use Management Act 1995 (Qld), s131(2), s131(2C).

COUNSEL:

SOLICITORS:

The Applicant represented himself.

Ms Kennedy (QPS Solicitor) appeared for the Commissioner of Police.

1. This is an application that I order a disqualification from holding or obtaining a drivers licence by the applicant be removed. 

2. The application is brought pursuant to s 131(2) of the Transport Operations Road Use Management Act 1995 (Qld). Section 131(2C) provides that upon the hearing of such an application 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 refuse the application. The onus is upon the applicant to satisfy me that it is proper to remove the disqualification.

3. He was born on the 26th of February 1984 and is now 28 years of age.  When he was 23 years of age on the 30th of March 2007, he committed two serious offences, one was dangerously operating a motor vehicle whilst adversely affected by alcohol and the other was a summary offence of driving over the general alcohol limit. 

4. The facts behind his offending are that on the day in question he had been drinking, he had a passenger in his car, he drove the car creating a very significant noise.  The applicant went through a red light at speed and collided with a taxi.  Injuries were suffered by a number of people including the passenger in the applicant's vehicle.  The applicant himself suffered severe injuries which included a broken jaw, five broken ribs and some other minor injuries. 

5. On the 14th of November 2008, he pleaded guilty to committing these offences. For the indictable offence he was sentenced to six months imprisonment suspended immediately for an operational period of four years.  For the summary offence he was sentenced to six months imprisonment to be served as an intensive correction order.  The sentencing Judge ordered that he be disqualified from holding or obtaining a drivers licence absolutely. 

6. The Attorney-General appealed against the sentence to the Court of Appeal.  The appeal was allowed.  The sentence for the indictable offence was set aside and the applicant for that offence was re-sentenced to a term of six months imprisonment and that with his consent it was to be served as an intensive correction order.  He had already performed three months of an intensive correction order up to that point in time, therefore, as he has told me today he served nine months of an intensive correction order.  And for the summary offence the Court of Appeal varied that sentence by substituting a sentence of imprisonment of three months wholly suspended forthwith for an operational period of four years.  The absolute disqualification from holding or obtaining a drivers licence was not the subject of the appeal. 

7. The Court of Appeal took into account and I have noticed and take into account on the hearing of this application that the applicant had a criminal history when he committed those offences, he also had a relevant traffic history.  However, I accept as it appears the Court of Appeal did that the applicant had suffered from clinically significant depressive symptomatology with a background of possible cannabis and alcohol abuse.  And the applicant has told me today he no longer drinks and I accept that.  It appears the applicant entered into a period instability because of the concern he had for his father developing Alzheimer's disease. 

8. When the applicant was sentenced he had very favourable references which attested to his generally good character and his good work ethic and favourable family background.  It is reported in the Court of Appeal Judgment that he had given himself a zero tolerance level for drinking whilst driving.

9. There is no doubt and the Court of Appeal accepted this that the applicant committed a very serious offence in the dangerous driving whilst affected by alcohol offence.  He had also appeared to not have learnt his lesson because he had committed two further traffic offences following the commission of the offences, the subject of the appeal. 

10. His traffic history shows that he has committed an offence which was dealt with on the 6th of February 2009, that appears to be a driving whilst disqualified.  The applicant deals with this in his affidavit and says he is aware that he was pulled over for trying to drive to the bank as it was raining heavily.  He says on this date he was actually unaware if he had a licence or not as his sentence went back to the Court of Appeal and it was finalised on the 27th of February 2009.  Clearly he should have been aware that the absolute disqualification had not been lifted despite the matter going to the Court of Appeal. 

11. Nevertheless, I am prepared to accept that he was foolish, clearly he should have waited till it had stopped raining and then found a way to get to the bank.  That is the difficulty for someone who is the subject of a disqualification, they must not drive unless it is an extraordinary emergency.

12. It is not something today though, that I hold against the applicant.  I am mindful that in this application I should exercise significant caution in considering the return of the applicant's licence.

13. As the applicant's affidavit shows there have been periods where he has been unemployed.  These are difficult economic times.  The work he has looked for has been within public transport distance.  He would like to return to work as a motor mechanic for which he had experience, however, he let his trade go because he had no licence to test the cars. 

14. Although, he told me today he has found work with Arnott's Biscuits at Virginia as a machine operator, to get there and home he has to use the train.  While one may say that a lot of people use the train, the fact remains, that it is not a convenient means of transport.  He did not get home last night till 3 a.m. because of a tragedy on the train line.  He is a man with a wife and two young children.  His wife does not work and has the care of the children.  They cannot afford childcare.  If he had his licence that would increase his prospects of gaining employment should this job at Arnott's Biscuits not last.  He has not been offered permanent positions in the past because he had no licence.  

15. The Court of Appeal noticed that a report from the applicant's community corrections officer was to the effect that since the applicant had been sentenced he had complied satisfactorily with the requirements of his intensive correction order and cooperated with and abided by all directions of his supervising officers.  I have every reason to think that the applicant has continued in that way for the duration of his intensive correction order. 

16. It is now four years since the applicant was sentenced and well over five years ago from when he committed the offences.  I am satisfied the applicant has not offended in a serious way since these serious offences were committed.  He has, of course, committed the other offences after he committed the subject offences which are referred to in the Court of Appeal's Judgment and I bear those in mind and there is, of course, the traffic offence in February of 2009.

17. I am satisfied the applicant can be said to have a good character despite his past.  He had good references when he was sentenced and he has also provided good references in support of his application today.  While I have noted that he has committed another offence subsequent to the order being made, nevertheless, I am not persuaded that should be held against him in the overall context of his application. 

18. I bear in mind the seriousness of the offences he committed. However, I consider those offences have been appropriately dealt with, of course, and he has committed the crime and done the time.

19. I, therefore, am prepared to make the order sought by the applicant.  I order the applicant's disqualification on 14 November 2008 be removed.