Schwerin v The Commissioner of the Queensland Police Service
[2014] QDC 111
•Ex tempore 7 May 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | Schwerin v The Commissioner of the Queensland Police Service [2014] QDC 111 |
PARTIES: | MATTHEW JAMES SCHWERIN (Applicant) v THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 165/09 |
DIVISION: | Criminal |
PROCEEDING: | Application to remove absolute disqualification |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | Ex tempore 7 May 2014 |
DELIVERED AT: | Toowoomba |
HEARING DATE: | 7 May 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Remove the disqualification of the Applicant, Matthew James Schwerin, imposed on 25/05/2009 from today 07/05/2014 |
CATCHWORDS: | VEHICLES AND TRAFFIC - LICENSING OF DRIVERS - OFFENCES - whether the Applicant is entitled to a removal of the absolute disqualification of his drivers licence Legislation Transport Operations (Road Use Management) Act 1995 (Qld) s 131(2C) |
COUNSEL: | Mr MJ Schwerin on behalf of the Applicant (self-represented) No appearances by Counsel on behalf of the Respondent |
SOLICITORS: | Mr MJ Schwerin on behalf of the Applicant (self-represented) Ms M Cable of the Office of the QPS Solicitor for the Respondent |
HIS HONOUR: This is an application for a disqualification to be removed. The Applicant was born on the 15th of June 1990. He is now 23 years of age. When he was 18 years of age on the 2nd of August 2008 he committed the offence of dangerously operating a vehicle causing grievous bodily harm to a passenger, and, further, at time of committing the offence he was adversely affected by an intoxicating substance. He pleaded guilty to committing that charge before her Honour Judge Richards on the 25th of May 2009. Her Honour noted the serious circumstances in which that offence was committed. The Applicant was sentenced for an attempted armed robbery.
Regarding the dangerous operation of the motor vehicle offence, her Honour noted the Applicant injured someone and he was driving whilst quite drunk and at speed. His blood alcohol reading was .170 which her Honour noted was in excess of three times the legal limit. He was also only on provisional plates, so he was required to have a zero blood alcohol limit so he wasn’t supposed to be driving at all, let alone with the .170 of alcohol.
Further, her Honour noted the Applicant drove for a significant distance at speed until he finally had a crash and injured the passenger. Her Honour noted that in his favour, while the two passengers in the back of the vehicle ran away because the Police were coming, the Applicant did wait with the passenger and didn’t run away himself. Her Honour accepted that that showed that he took some responsibility for what he had done. However, her Honour noted that the Applicant had previously been convicted of driving under the influence of alcohol with a reading of .109 and that is why he was disqualified from driving generally at the time. He was on a provisional licence at the time. Her Honour also noted his convictions for speeding and the suspension of licence. Her Honour referred to his traffic history as terrible for someone who was 18 years of age.
Her Honour also noted that while he was on bail he committed a public nuisance offence and also the attempted robbery where a taxi driver was threatened with a knife and a demand was made for cigarettes. Her Honour noted that, fortunately, the Applicant’s friends managed to pull him away eventually, and as the taxi driver did not have any cigarettes and didn’t hand anything over that’s why it was attempted armed robbery. Her Honour noted also that the Applicant pleaded guilty to an ex officio indictment with respect to the dangerous operation of the motor vehicle offence. She noted he was a very young man and had every chance of becoming a very productive member of the community. She also noted he had a lot of support in the community, evidenced by his family and his girlfriend, who was then present. However, her Honour noted that general deterrence was very important in these sorts of cases; that is, including the attempted armed robbery.
In the end, her Honour sentenced the Applicant to four years imprisonment for the dangerous operation of the motor vehicle and required him to serve imprisonment until the 29th of March 2010 with an operational period of five years. With respect to the attempted armed robbery, her Honour sentenced the Applicant to 12 months imprisonment. Her Honour also ordered the Applicant be disqualified from holding or obtaining a drivers licence absolutely.
The Applicant was released from imprisonment on the 29th of March 2010, however, his criminal history shows that thereafter, he has committed, during the year 2010 in particular, many offences. Included are offences of assaulting or obstructing Police, committing public nuisance, being refused entry to licensed premises, contravening a direction or requirement and even a breach of bail, and urinating in public place. For these offences, except for the committing the public nuisance on 31st of October 2010, the Magistrate sentenced the Applicant to one months jail and set his parole release date as the 25th of October 2010; however, after coming out of jail on that occasion, his record shows that he committed another public nuisance offence on the 31st of October 2010.
The consequence of that offending during the year 2010 was that the Applicant was then dealt with for the breach of the suspended sentence imposed by her Honour Judge Richards. That came before the District Court here in Toowoomba on the 23rd of February 2011. The breach was proven, and the Court ordered that the Applicant serve part of the suspended sentence imposed by her Honour Judge Richards, namely three years, and ordered that the date he be released on parole be fixed as 23rd of February 2012.
So the Applicant served another year in jail, and when he came out, it can be seen that on the 19th of August 2010, he urinated in a public place; however, while a conviction was recorded, he was not further punished for that offence. Then on the 4th of May 2013, he committed a public nuisance for which the learned Magistrate imposed two months imprisonment to be suspended wholly for 18 months.
My jurisdiction to remove the disqualification arises if I consider it is 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, to remove the disqualification. If I do not think it is proper to do so, then I should refuse the application (see section 131 subsection (2C) of the Transport Operations (Road Use Management) Act 1995.)
The Applicant comes before me on the basis that he’s now 23 years of age, and he’d lost his licence absolutely in May 2009, and he really needs his licence for work, as most jobs require a drivers licence. His father has sworn an affidavit that there is a job available to his son, the Applicant, driving a truck in the father’s business. The Applicant also says that he has a daughter who is five years of age in June to his first partner and another daughter who has arrived in April. His new partner does not have a licence. He has his daughter most weekends, and he is always having to rely on family or other people to drive him to get her or to drop her off.
He says he feels he has learned his lesson, and he has had no more driving offences. Of course, I would say here with respect to him not having any more driving offences, he has been disqualified, so he should not have been driving. However, it would be correct to say he has not shown that he has breached the law by ignoring the disqualification and driving and committing offences while driving whilst disqualified. He says that it is really hard not having a licence, and he feels it is going to get harder once his new baby comes along if there’s an emergency or he needs to take either of his wife or the baby to the doctor’s; it will be extremely hard not having a drivers licence.
As far as him having learned his lesson, the Respondent here today points out, amongst other things, the Applicant’s history since being jailed by her Honour Judge Richards. Certainly during the year 2010, the Applicant committed a number of offences which clearly indicate at that time he had not controlled his drinking of alcohol. His offending, though, seems to have slowed down, and it is arguable that since the 4th of May 2013, a year ago, he has not committed any further offences.
The Respondent does point out that the Applicant has recently been arrested on 9 January 2014 on a return to prison warrant and his parole suspended following a charge of assault occasioning bodily harm whilst in company. The Respondent says these charges are yet to be finalised before the Toowoomba Magistrates Court, with the Applicant next appearing on 13 May 2014. He was released from custody on 12 March 2014. I questioned the Applicant about this. Unfortunately, he seems to fit into the pattern with respect to a number of people who take the advice of their lawyer that because there are apparently three witnesses versus his two witnesses he will most likely take the course of pleading guilty to the charge.
However, from what he told me he would seem to be not guilty of the charge. I am impressed by him, I must say, in the way he has spoken to me here today and tried to advance his case. He is a very respectful young man and he also has a very credible partner. He says he just jumped in to try and help his father who was being assaulted. That would suggest, as I said, he is not guilty of the charge. However, it is understandable, as it does so often happen, that people take the advice of their lawyer. It may be because they have no money or they think the advice is right and they just think the system will not support them as against others.
The Respondent also, of course, points out that it seems that the Applicant has only recently seemed to have done something about his drinking. He has told me, and I accept what he has told me today in its entirety, included in what he has told me is that about four months ago he slowed down his drinking, he’s trying to do something about it, and has attended ATODS. He’s gone to four meetings. His partner says there has been a change in him and she wouldn’t stay with him if he hadn’t changed his ways. He also told me that drink has nothing to do with that alleged offence of the assault occasioning bodily harm whilst in company.
Basically, the Respondent submits it is not proper to remove the disqualification, in particular because of the Applicant’s apparent drinking from the time that he was released from prison under the sentence imposed by her Honour Judge Richards.
The Applicant told me, and I accept this, that he is drinking less and is trying to change for the better. To my mind, while the Applicant has shown irresponsibility when he was 18 years of age and in the years that followed when he was released from prison, he has slowed down in his offending, which I think is in his favour. Further, he has not broken the law with respect to driving whilst disqualified. He is in a relationship that appears to me to be supportive and will be good for him. He has attended meetings of ATODS and is doing something to try and curb his drinking. His partner confirms he had moderated his drinking. I also consider it is relevant here that his father can provide him with employment in his father’s business. It is most desirable that the Applicant be able to be employed to not only support his partner and two children, but to be able to do something useful and lead towards a law abiding life.
I also consider he has not offended since the 4th of May 2013, despite the recent matter which I treat him as being not guilty of it at this stage despite his intentions. It is not a matter that involves driving, nor drinking. He has not committed other serious offences of a like kind. Further, for other offending that he has committed he has served terms of imprisonment and has been punished. To refuse him a licence at this stage, to my mind, would be to continue to punish him. To my mind, he will never be able to get ahead. Therefore, despite his conduct subsequent to the order made by her Honour Judge Richards, and despite the serious nature of the offence that he committed in 2008, and despite his general character as shown by his previous offending, I come to the view when balancing all the relevant circumstances of this case that it is proper to remove the disqualification as from today.
So I by order remove the disqualification of the Applicant, Matthew James Schwerin, imposed on 25 May 2009 from today, the 7th of May 2014.
0
0
1