Muller v Commissioner of Police (Qld)

[2006] QDC 328

[2006] QDC 328

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1733 of 2006

SHANE RICHARD MULLER	Applicant
and
THE COMMISSIONER OF POLICE (QLD)	Respondent

BRISBANE

..DATE 10/07/2006

ORDER

CATCHWORDS: Transport Operations (Road Use Managemenet) Act 1995 s 131 - order made for removal of absolute disqualification from holding a driving licence nearly 4 years before - applicant had bad traffic and general criminal histories, including subsequent offences, but demonstrated rehabilitation to a remarkable degree - the only ground of opposition was that given the extensive period of custody when the applicant could not have driven anyway, the duration of the disqualification in a practical sense was insufficient.

HIS HONOUR: This is an application by Mr Muller who has represented himself effectively, using an affidavit which he has had some assistance in preparing. It is under section 131 of the Transport Operations (Road Use Management) Act 1995. Its purpose is to relieve Mr Muller from the consequences of an order made by Judge Healy in the District Court at Beenleigh on the 20th of August 2002.

That order disqualified Mr Muller absolutely from holding a driving licence. There could hardly be any complaint about it. It capped off lots of instances of disqualified driving and sad to say it was followed by subsequent instances of disqualified driving which may explain why Mr Muller has decided or been advised to wait for longer than the two year period mentioned in section 131 subsection (2) before applying to have the disqualification removed.

The subsequent instances of disqualified driving and some other offending led Mr Muller to the Drug Court.  He has been outstandingly successful in taking advantage of its programs.  It is an occasion to record well deserved congratulations to Mr Costanza and Ms Thacker and those who devised the Drug Court system as well as to Mr Muller.  Ultimately it is on his own efforts that his success or failure depends.

His achievements have been considerable.  A three year intensive rehabilitation program set by the Drug Court on the 21st of September 2004 has been varied by that Court on the 5th of August 2005 to an 18 month probation order.  Mr Muller has undertaken training in the IT area and been successful in obtaining a position in a branch of the Brisbane City Council where he is giving satisfaction to his supervisors.  It would suit them if Mr Muller were able to drive and attend to the business of his branch in various parts of Brisbane, thus freeing up more senior personnel to attend to other duties. 

The purpose of the application is not to obtain a driving licence limited to work use, but unrestricted ability to drive.  The traffic history which Mr Muller places before the Court is a very bad one.  As he says it is very fortunate that no one had been hurt by his highly irresponsible manner of driving as a younger person.  His general criminal history is very bad too, and I do not think he understated things when he said he was close to becoming institutionalised, having spent so much of his 31 years of life in prison.

For the moment those bad years seem to be behind him, not only on the work front, but in the personal area, too.  Mr Muller has a loyal partner who has been his chauffeur to a considerable extent now that, as appears to be the case, he has accepted that he should not drive while disqualified.

The Court notes with approval Mr Muller's determination in seeking to get himself rehabilitated and not only that, but to enjoy the fruits of rehabilitation as a member of the community entitled to do ordinary things, including driving.  After an unhappy appearance in the Court of Appeal when it

appears he was ordered to serve a sentence which had been suspended in this Court, he recorded a triumph on 11th of November last year when things were reversed. The Court of Appeal by majority set aside an order made in the District Court on the 12th of October 2005 ordering that eight months of two-and-a-half years remaining suspended of the four year sentence imposed by Judge Healy should be served.

Understandably the Court of Appeal were impressed by the reference material, a good deal of which has been incorporated in the affidavit used today.  Understandably their Honours did not want to see a substantial period in custody disrupting the reintegration of this man in the community. 

Mr Owen, responding to the application, accepts the achievements of Mr Muller and relies on the single proposition that the retributive or punitive aspect of Judge Healy's order in so far as it disqualified Mr Muller from driving has not yet been served, given the amount of time for which Mr Muller has been out and about in the community with an ability to drive, which of course he did not have while in custody.

Mr Owen's calculation is that what might be called voluntary abstention from driving accounts for only the last 10 months or so.  Looking at the traffic and general history it is understandable that Mr Owen makes the point he does.  I agree with Mr Muller that the calculation ignores the period when Mr Muller was in a Salvation Army institution with not only access to vehicles there, which he says other clients were allowed to use if licensed, when he had leave and I would think at times an unrestricted or near unrestricted ability to come and go.  His partner was able to visit him with a vehicle and when they were away together he could have driven.  That situation has applied to some extent since October 2004. 

In my opinion, it is not just a matter of counting up the months.  I think it is open to the Court to reward a person such as Mr Muller who not long ago would have presented as a very damaged human being with bleak future prospects.  The appearances today could hardly be more different.  He and his partner have acquired a house, for example.  It could be said that all the signs are good. 

I think it is open to the Court to arrive at the outcome which I do, which is to encourage further rehabilitation and reintegration in the ordinary law abiding community by acceding to Mr Muller's application and making an order under Section 131 that the disqualification imposed on the 20th of August 2004 be removed.

Have I got the right date?
MR OWEN:  2002, your Honour.
HIS HONOUR:  Yes - 20th of August 2002 be removed.

...

‑‑‑‑‑