Tipping v the Crown

[2010] QDC 436

[2010] QDC 436

DISTRICT COURT

CIVIL JURISDICTION

JUDGE JONES

JASON LIONEL TIPPING	Applicant
and
THE CROWN	Respondent

TOOWOOMBA

..DATE 25/10/2010

ORDER

HIS HONOUR: This is an application pursuant to section 131 of the Transport Operations (Road Use Management) Act 1995. The applicant is a 35-year-old male.

On 29 March 2006, the applicant was disqualified absolutely from holding a driver's licence.  That order arose out of a charge of dangerous operation of a motor vehicle with circumstances of aggravation. The circumstances of aggravation being that the applicant had previously been dealt with for a similar offence in the Bundaberg District Court on 2 December 1992.  As a consequence of the orders made by the sentencing Judge the applicant has now been disqualified for a period of about four and a‑half years.  He now seeks to have that disqualification lifted.

A number of matters are required to be taken into consideration in applications such as this, including the character of the person disqualified, the person's conduct subsequent to the disqualification, the nature of the offence and, of course, any other matters that the Court considers relevant to the exercise of its discretion.

As the applicant himself recognises in his affidavit, he has a disturbing traffic and criminal history. And it would appear, as was suggested by Mr Needham who appeared for the respondent, that a number of the offences, sometimes described as street offences, were associated with drug and/or alcohol abuse.

The underlying matters upon which the applicant relies to argue that the disqualification ought now be lifted are that he is now in a stable relationship of now approximately five years.  He has one child of that relationship, aged 18 months, and his partner is expecting a second child.  His partner does not hold a driver's licence. For reasons not entirely clear it is unlikely she will obtain a driver's licence in the foreseeable future due to some psychological issues associated with a previous motor vehicle accident in which she was involved.  It is clear that where such a young family is involved and neither parent is able to drive it would be a matter of considerable disruption.

The applicant also deposes to the fact that, by having a benevolent employer, he has thus far been able to maintain steady employment.  However, and not surprisingly, he points out that not having a driver's licence seriously impacts on his employment opportunities.

Of some considerable significance, in my view, is that, apart from some relatively minor aberrations, the applicant has shown a significant change in his antisocial behaviour. I should emphasise for the better.

He completed a second period of probation in 2008 and, since that time, apart from one very minor traffic offence involving riding a pushbike without a helmet, has not been involved in any criminal activity or been involved in any traffic offences.  In that regard, the applicant's conduct subsequent to the order of disqualification has materially improved in no small part perhaps due to him recognising that if he did not change his behaviour he would end up having further periods of imprisonment. No doubt his present relationship and young family has made a significant and positive impact on his life.

Mr Needham, appearing for the respondent, quite candidly and quite appropriately, in my view, acknowledged that this was a compelling application.  However, he, not unreasonably, did mention that one matter of concern which had not been entirely dispelled by the material relied on by the applicant is that there is no direct probative evidence that the applicant is no longer involved with drug use.  Whilst I agree with that submission, there are a number of factors that would indicate that there is a genuine prospect that the applicant is no longer materially involved in the taking of drugs.  The several factors which lead me to this conclusion include that, up until probation was completed in 2008, if the applicant had have been seriously involved in the taking of drugs, that might have been expected to have been revealed during usual testing.  Also of significance is the fact that the street-type offences previously carried out by the applicant and typically associated with drug use are no longer apparent in the applicant's history.  He has a steady employment history and, as I have said, is now in a well-established family environment.  In the circumstances, I am prepared to give the applicant the benefit of the doubt in respect of Mr Needham's appropriately held concerns.  For the reasons given, the application is allowed.

Now, I have given those reasons ex tempore.  I reserve the right to tidy them up a little bit if I think they need to be published.

Now, what is the formal form of the order that I need to make?  It might be in your outline, is it?

MR SKUSE:  It's not, your Honour, but perhaps if I just hand up a draft.  And that should read the 29th of March, your Honour, not the 19th of March.

HIS HONOUR:  Yes.  Mr Needham, you have not had a chance to see that?

MR NEEDHAM:  I have, your Honour, thank you.

HIS HONOUR:  Anything you want to say about that?

MR NEEDHAM:  No, thank you, your Honour. 

HIS HONOUR:  All right.  Otherwise the orders - save for changing the date to the 29th of March, it will be otherwise orders as per the draft.

MR SKUSE:  Thank you, your Honour.

MR NEEDHAM:  Thank you, your Honour.

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