Police v Martin

[2014] QMC 3

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Martin [2014] QMC 3

PARTIES:

POLICE

(prosecution)

v

BENAIAH MARTIN

(defendant)

FILE NO/S:

SOUT-MAG-18314/13

DIVISION:

Magistrates Courts

PROCEEDING:

Application for a restricted licence

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

16 January 2014

DELIVERED AT:

Southport

HEARING DATE:

22 November 2013

MAGISTRATE:

Magee KT

ORDER:

The application for a restricted licence is granted

CATCHWORDS:

TRAFFIC LAW – LICENCING - restricted licence

Transport Operations (Road Use Management) Act 1995, s 87

COUNSEL:

Whittle (Sergeant) for prosecution

A Maloney (solicitor) for defendant

SOLICITORS:

Prosecution on own behalf

Moloney McCallum Solicitors for defendant

1. On 22 November 2013 the defendant pleaded guilty to a charge that on 2 September 2013 he drove a motor vehicle whilst over the middle alcohol limit but not over the high alcohol limit and applied for a restricted licence pursuant to s 87 of the Transport Operations (Road Use Management) Act 1995 (‘TORUM’).

1. The prosecutor submitted that the defendant was ineligible to receive a restricted licence because on 24 October 2008 his licence was suspended for three months by reason of the accumulation of demerit points.

1. I found that the defendant was not ineligible to receive a restricted licence and proceeded to grant the licence.  I indicated that I would subsequently publish the reasons for my decision.

1. Section 87 of TORUM empowers the court which convicts a person of an offence under section 79 or section 80(5)(a) of the Act to order that a person be issued with a restricted licence during the period of their disqualification for the offence.

1. Section 87(5)(b) TORUM is relevantly in the following terms:

87(5)    An application for an order under this section must not be granted –

(a)       ……

(b) if the applicant’s provisional or open licence has been suspended or cancelled, or the applicant has been disqualified from holding or obtaining a Queensland driver licence, within 5 years before the application is made.

(c) in a case where the applicant has been previously convicted—

(i) under section 79 or 80(5A) or the Criminal Code, section 328A; or

(ii) elsewhere than in Queensland of any offence which if committed in Queensland would be an offence under section 79 or 80(5A); within a period of 5 years before the conviction that results in the disqualification in respect of which the application is made;

1. The application for a restricted licence was made on 7 November 2013. The defendant’s 3 month licence suspension imposed on 24 October 2008 expired on 23 January 2009. Accordingly, the disqualification was imposed outside the 5 year period referred to in section 87(5)(b) but continued to be operational within that 5 year period. The issue before the court was whether the period of 5 years referred to in section 87(5)(b) is calculated with reference to the date the disqualification was imposed or the date the disqualification ceased to have effect.

1. The language of the section 87(5)(b) refers to the act of the suspension, cancellation or disqualification rather than the period of suspension, cancellation or disqualification. Had the legislative intent been to preclude a person from receiving a restricted licence for a period of 5 years after the cessation of a disqualification period presumably the Act would have said so.

1. This interpretation is consistent with the provisions of section 87(5)(c) of TORUM.

1. Under 87(5)(c) where a person is disqualified for committing an offence under section 79 or 80 (5A) of TORUM, or section 328A of the Criminal Code (namely drink driving, failing to supply a specimen of breath for analysis, or dangerous driving), or of equivalent offences interstate, the 5 year period is calculated with reference to the date the disqualification is imposed rather than the expiry of the disqualification period. It would be curious indeed if an applicant for a restricted licence was ineligible to receive the licence if the operational period of a demerit point suspension imposed outside the 5 year period extended to within the 5 year period, but would not be ineligible if the operational period of a disqualification imposed for drink driving or dangerous driving imposed outside the 5 year period extended to within the 5 year period. Such interpretation ought not be made unless there is a clear legislative intent. No such clear legislative intent can be derived from the wording of section 87(5)(b).

1. I am fortified in this conclusion by the speech made by the Parliamentary Member Mr Lucas upon the consideration of the Bill by Parliament where he stated “anyone who has lost their driver licence in the previous 5 years due to accumulation of demerit points would not be eligible to apply.”  This refers to the act of the loss of licence as opposed to the period of loss of licence.  The licence is “lost” upon the suspension being imposed.

1. Accordingly, the calculation of the 5 years referred to in section 87(5)(b) is to be made with reference to the date the suspension cancellation or disqualification was imposed.