McNally v Commissioner of Police

[2023] QDC 196

DISTRICT COURT OF QUEENSLAND

CITATION:

McNally v Commissioner of Police [2023] QDC 196

PARTIES:

MICHAEL ANTHONY MCNALLY

(applicant)

v
COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

DC 29 of 2023

DIVISION:

Civil

PROCEEDING:

Application for removal of licence disqualification

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

31 October 2023

DELIVERED AT:

Southport

HEARING DATE:

4 October 2023

JUDGES:

Wooldridge KC DCJ

ORDER:

1.   The application is allowed.

2.   The absolute disqualification of the applicant’s ability to hold or obtain a driver licence is removed as from 31 October 2023.

CATCHWORDS:

APPLICATION – APPLICATION FOR REMOVAL OF ABSOLUTE DRIVER LICENCE DISQUALIFICATION – application pursuant to section 131(10) of the Transport Operations (Road Use Management) Act 1995 (Qld) – where the applicant was convicted and sentenced for an offence of Dangerous operation of a vehicle with a circumstance of aggravation and an offence of Negligent act causing harm – where an order was made that the applicant be disqualified absolutely from holding or obtaining a driver licence – whether the Court is satisfied that it is now appropriate and proper in the exercise of its discretion to remove the order for disqualification

Transport Operations (Road Use Management) Act 1995 (Qld) s 131(10), s 131(14)

Morgan v Commissioner of Police [2007] QDC 010
Porter v Commissioner of Police [2010] QDC 274
Slivo v Commissioner of Police [2016] QDC 46
Tabakovic v Commissioner of Police [2009] QDC 191

COUNSEL:

The applicant appeared on his own behalf
T Boettcher for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Queensland Police Service for the respondent

Introduction

1. This is an application by Michael Anthony McNally[1], pursuant to the provisions of section 131(10) of the Transport Operations (Road Use Management) Act 1995 (Qld), for removal of an absolute disqualification from holding or obtaining a driver licence.

   [1]While the application is brought in the name of Michael Anthony McNally, the applicant is also known as Michael Anthony Tones. As concerns the original sentencing proceedings and orders to which this application relates, the applicant was charged as Michael Anthony Tones.

   Legislative framework

2. Section 131(10) TORUM provides:

   A person who has been disqualified, by operation of law or an order, from holding or obtaining a Queensland driver licence absolutely or for a period of more than 2 years, may, at any time after the expiration of 2 years from the start of  the disqualification period, apply for the disqualification to be removed.

1. Section 131(14) TORUM  provides:

   Upon hearing any such application, the judge of the Supreme Court or District Court or the justices constituting the 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.        

1. Section 131 does not create a right for an applicant to have an order of licence disqualification removed; rather it provides the court with the discretion to make such an order. The applicant bears the onus of satisfying the Court on the balance of probabilities that it is now appropriate and proper to dispense with and remove the order for disqualification that had previously been considered suitable as part of the applicant’s earlier sentence.[2]

   [2]See Slivo v Commissioner of Police [2016] QDC 46 at [8]-[9].

   Original sentence proceedings

2. On 4 August 2011 the applicant Michael Anthony McNally appeared before the District Court at Beenleigh and was sentenced by His Honour Judge Koppenol for two offences: an offence of Dangerous operation of a vehicle with a circumstance of aggravation, and an offence of Negligent act causing harm.

3. Each of the offences were committed on 20 August 2009. The circumstances of the offending are set out in the sentencing remarks of his Honour Judge Koppenol that have been placed before the Court on this application by the respondent. Within those remarks his Honour described the circumstances of the offending as follows:

   At about 6pm on August 20, 2009 at Slacks Creek, on a suburban street, [the applicant] was driving a truck. It was dark at the time. [The applicant] turned right from one street into another, cutting the corner, driving on the wrong side of the road. [The applicant was] driving at about 10 to 20 kilometres an hour. [The applicant] collided with two children, one aged 10 and one aged 11. Both of the children were knocked on the ground. [The applicant] then stopped [his] truck and dragged the children to the side of the road. [The applicant] then got back in [his] truck and witnesses saw [him] proceed to drive off, but passers-by prevented [him] from leaving the scene.

   One of the children was hospitalised for 12 days for a traumatic brain injury. Fortunately, he fully recovered. He also suffered a broken collarbone, which was put in a sling and subsequently fully healed. The other boy suffered scrapes and bruises.

   - - -

   The area concerned was a suburban area. There was always a risk, as there is with any suburban area, of other vehicles being present and children being pedestrians. [The applicant] ignored any such risk and cut the corner in a very dangerous way.

1. Additionally, the parties informed the Court at the hearing of the application that the applicant was sentenced on the basis that his blood alcohol concentration at the time of the offence was 0.118.[3]

   [3]Although the sentencing remarks refer to alcohol having been a problem for the applicant for many years, the applicant’s blood alcohol concentration at the time of the offence is not identified in his Honour Judge Koppenol’s sentencing remarks. The transcript of proceedings of the sentence proceedings was not placed before the Court.

2. His Honour sentenced the applicant to 2 years imprisonment in relation to the offence of Dangerous operation of a vehicle with a circumstance of aggravation, and 12 months imprisonment, to be served concurrently, with respect to the offence of Negligent act causing harm. The applicant’s court ordered parole release date was fixed at a point in time after he had served six months of the two year period of imprisonment. His Honour further ordered, giving rise to the subject application, that the applicant be disqualified absolutely from holding or obtaining a driver licence.

1. In sentencing the applicant and making those orders his Honour referred to other aspects of the applicant’s antecedents, including his criminal and traffic history at that time. His Honour described the applicant’s history for criminal and traffic matters as “disgraceful”. His Honour described the offending for which his Honour was sentencing the applicant as showing a “complete contempt for the road traffic system”.

The applicant’s criminal and traffic history

1. Further to the learned sentencing judge’s observations about the applicant’s past record, the applicant’s traffic history and criminal history has been placed before the Court on this application. That history, as relevant to this application, as existed at the time of the applicant originally being sentenced included the following entries:

Entry details	Offence and offence date	Penalty imposed
3 April 1987	7 September 1986 Unlicensed driving	Convicted and fined $100.
29 August 1987	29 August 1987 Drive motor vehicle whilst blood alcohol content was .12% Unlicensed driver	Convicted and fined $350. Convicted and fined $150.
4 November 1987	13 October 1987 Blood alcohol concentrate was .10%	Convicted and sentenced to 2 months imprisonment.
	22 October 1987 Unlicensed driver Speeding	3 months imprisonment; disqualified absolutely. Convicted and fined $80.
17 November 1987	27 October 1987 Unlicensed driving	Convicted and sentenced to 2 months imprisonment; disqualified absolutely.
16 December 1987	5 July 1987 Unlicensed driving	Convicted and fined $100.
7 July 1993	30 November 1992 Exceed speed limit by between 15km/hr and 30km/hr	$130.
9 July 1993	21 January 1993 Exceed speed limit by less than 15km/hr	$80.
8 February 1995	8 February 1995 Careless driving	Fined $200; disqualified for 6 months.
15 September 1998	15 June 1998 Exceed speed limit by less than 15km/hr	$130.
21 December 1999	14 August 1999 Exceed speed limit by less than 15km/hr	$80.
18 December 2000	26 September 2000 Exceed speed limit by between 30km/hr and 45km/hr	$180 enforcement order.
4 July 2003	21 June 2003 Drive under influence of Liquor (0.169 BAC)	With other offences Fined $800; disqualified for 10 months.
25 August 2006	22 June 2006 Exceed speed limit by between 13km/hr and 20km/hr	$150 enforcement order.
1 September 2006	28 June 2006 Drive/attempt to put in motion/in charge M/V under influence of liquor (0.118 BAC)	Fined $600; disqualified for 6 months.
16 July 2007	16 June 2007 Unlicensed Driving	Convicted and fined $150.
31 December 2008	22 October 2008 Exceed speed limit by less than 13km/hr	$100 enforcement order.
11 August 2011	20 August 2009 Unlicensed driving	Convicted and not further punished; disqualified for one month.

1. The applicant has no criminal history or traffic history for offending that occurred subsequent to the order of 4 August 2011 that he be disqualified absolutely from holding or obtaining a driver licence.

Matters relied upon by the applicant in support of the application

1. The applicant also relies upon the following documentation in support of the application for the removal of the absolute licence disqualification:

   ·A two page affidavit under his own hand sworn 1 September 2023;

   ·A handwritten letter said to be under the hand of a Sharon McNally, the applicant’s wife; and

   ·A handwritten letter said to be under the hand of Jade Mariah, a long-term friend of the applicant.

2. The applicant also made further oral submissions at the hearing of the application.

3. The effect of the submissions of the applicant in support of his application was as follows:

   i)   The applicant is now 56 years of age;

   ii)     The applicant has not re-offended in any way since being sentenced in August 2011;

   iii)   The applicant no longer consumes alcohol, having ceased consuming alcohol over 9 years ago;

   iv)   The applicant describes his “whole attitude to drink-driving [as having] changed tenfold”;

   v)   The applicant is now a grandfather and his daughter is again pregnant;

   vi)   The applicant is involved in the care of his wife who has rheumatoid arthritis and osteoarthritis. She is at heightened risk of falls, and has had some complications with bones not reforming as they should for which she receives ongoing injections by way of treatment in a hospital setting. She needs to be transported to attend various appointments. The applicant and his wife are dependent upon their daughter to assist with transportation to appointments, or alternatively need to use public transport. The applicant’s daughter herself has children and is again pregnant, and it is at times a strain on their daughter’s time and resources to fulfil this role;

   vii) The applicant takes his grandchildren camping, but again is limited by his dependence on his daughter for transport; and

   viii)    The applicant is not presently employed, but wishes to pursue part-time work. Holding a licence would be of assistance, both in terms of employment prospects and reducing work-associated transportation costs once employed.

4. In his submissions to the Court the applicant presented as genuine in his expressions of self-reflection and changed attitude toward his previous offending.

The position of the respondent on the application

1. The respondent did not seek to challenge the material or submissions relied upon and advanced by the applicant.

2. The respondent acknowledged it was open to the Court in the circumstances to allow the application. The respondent positively submitted that the applicant appeared to have developed some insight into his earlier offending behaviour, and that the applicant’s lengthy period of abstinence from offending and driving may be viewed as consistent with genuine remorse.

3. No submission was made that, in the event of the application being allowed, the Court would here order that the removal of the disqualification be ordered to take effect on a specified date in the future, as opposed to immediately upon the application being allowed.

Further consideration and disposition

1. The ability for an individual to bring an application such as the present pursuant to section 131 TORUM, for an order for removal of a licence disqualification period, may be seen to serve the purpose of providing an incentive to individuals to reform and be of good behaviour, in which case after suffering a sufficiently lengthy deprivation of the ability to drive so as to satisfy the community’s demand for just punishment, there is a reasonable likelihood that they will be given the opportunity to become a licensed driver again.  However, before such an order should be made, an applicant would need to satisfy the court that there has been a substantial change in his character and conduct, and demonstrate a legitimate purpose for the further obtaining of a driver licence by the applicant.[4] Further to the considerations identified in section 131(14) TORUM, it has been observed that the Court’s discretion involves a balancing of the interests of the applicant with those of the community, and community safety, and consideration of whether the applicant has demonstrated a recognition of the importance of community and driver safety, and preparedness to conduct themselves in accordance with community expectations.[5]

   [4]See Tabakovic v Commissioner of Police [2009] QDC 191 per Robin QC DCJ at page 3 and Slivo v Commissioner of Police [2016] QDC 46 per Farr SC DCJ at [39].

   [5]See Morgan v Commissioner of Police [2007] QDC 010 per Newton DCJ at [31] and Porter v Commissioner of Police [2010] QDC 274, per Dearden DCJ at page 4.

2. It has now been 12 years since the absolute licence disqualification was imposed. That is a substantial period of disqualification. This is the first time that the applicant has applied for the removal of the subject absolute licence disqualification. The applicant has been in the community since his release to court ordered parole in February 2012, over 11.5 years ago. He has not accrued any further criminal or traffic history in that period. I am satisfied that there has been a substantial change in the applicant’s character and conduct, and that the applicant is remorseful for his previous conduct and has demonstrated a preparedness to conduct himself in accordance with community expectations.

3. The matters advanced by the applicant in support of the application are such that I am satisfied that the applicant has demonstrated that, on balance, the order for absolute licence disqualification ought now to be removed.

Orders

1. Accordingly, my orders are as follows:

   1.The application is allowed;

   2.The absolute disqualification of the applicant’s ability to hold or obtain a driver licence is removed as from 31 October 2023.