R v Markusik - [2006] QDC 327

[2006] QDC 327

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No 426 of 2006

THE QUEEN

EMIL MARKUSIK

SOUTHPORT

..DATE 31/08/2006

ORDER

Catchwords
Transport Operations (Road Use Management) Act 1995, s.131(2) - removal of five year driving licence disqualification imposed (perhaps as an afterthought by the sentencing Judge) with a five year term of imprisonment suspended after 18 months - applicant of good character apart from his aggravated dangerous driving offence - removal not effective for another 13 months.

HIS HONOUR: This is Mr Markusik's application, under section 131 of section (2) of the Transport Operations (Road Use Management) Act 1995, seeking removal of a five year disqualification from holding a driving licence which was imposed by Judge Richards in this Court on the 31st of May 2004.

It was imposed, along with a five year sentence of imprisonment, suspended after 18 months had been served, in respect of an offence of dangerous operation of a motor vehicle, causing grievous bodily harm with a circumstance of aggravation.

Two ladies, who were reunited for the purpose of enjoying Christmas together, one having flown from interstate, were seriously hurt. The circumstance of aggravation was constituted by an excessive blood alcohol concentration. What I have said does not reveal the seriousness of the injury to the victims, or the extent of intoxication of Mr Markusik at the time, which was around 10 p.m. on the night. His blood alcohol reading was .262 at 11.25 p.m. The sentencing Judge considered that as equivalent to a reading of .292.

On that basis, as Mr Kelly, for the respondent, says, Mr Markusik could only have been walking with difficulty, and certainly should not have been driving. The story was that some kind of family emergency led to his making the ill-fated decision to drive. It was at one of the big signalised intersections on Reedy Creek Road that Mr Markusik drove his vehicle through a red light and ran into that containing his victims.

Undoubtedly, the offence was out of character. The Court accepts that. It came on top of a relatively minor traffic history. There was an offence in 1989 in New South Wales of failing to supply a breath specimen which resulted in a $1,000 fine. According to the criminal history, it was accompanied by a three year disqualification, but Mr Markusik and his daughter, who has assisted him to present arguments to the Court today, says there was no disqualification. There were speeding offences, resulting in relatively modest fines in 1998 and 2002. There is no other criminal history.

Mr Markusik is a family man. His society is valued by his family, as, indeed, has been his ability to drive and assist his daughter, in particular, by driving her children to sporting and musical activities, and the like. It cannot be suggested that Mr Markusik's personal assistance in that way is vital, as his wife drives as well. It may be that her vehicle is not so well adapted to providing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Markusik

Details

AGLC: R v Markusik [2006] QDC 327
Case: [2006] QDC 327
Decision Date: 31/08/2006

CaseChat Overview and Summary

In the case of R v Markusik, the applicant, Emil Markusik, sought the removal of a five-year driving licence disqualification imposed by Judge Richards on May 31, 2004. The disqualification was a consequence of Markusik's conviction for dangerous operation of a motor vehicle, causing grievous bodily harm with an aggravating circumstance of excessive blood alcohol concentration. The incident occurred when Markusik drove through a red light and collided with two individuals, severely injuring them. Markusik's blood alcohol level at the time of the incident was 0.262, and he had a history of minor traffic offences but was otherwise of good character.

The legal issue before the court was whether the disqualification should be removed under section 131(2) of the Transport Operations (Road Use Management) Act 1995. The court considered various factors, including Markusik's good character, his remorse, and the impact of the disqualification on his ability to contribute to his family and community. The court also noted that the disqualification was imposed somewhat as an afterthought during sentencing. While acknowledging the seriousness of the offence and the need for deterrence, the court decided that the disqualification should be partially lifted to allow Markusik to resume driving after 13 months, thereby reducing the total disqualification period to 21 months following his release from prison.

The court concluded that it was in the interests of justice to partially lift the disqualification to facilitate Markusik's reintegration into the community while still ensuring public safety. The decision was made to balance the need for punishment and deterrence with the potential benefits of Markusik's early return to driving, such as resuming his role in supporting his family. The court ordered that the disqualification should be removed after 13 months from the date of the decision, allowing Markusik to drive again under the specified conditions.

Orders