Kennedy v Queensland Police Service
[2007] QDC 353
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- Unreported Judgment
- Kennedy v Queensland Police Service[2007] QDC 353
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Kennedy v Queensland Police Service[2007] QDC 353
Kennedy v Queensland Police Service[2007] QDC 353
[2007] QDC 353
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBERTSON
MARK LESLIE KENNEDY | Applicant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
MAROOCHYDORE
DATE 13/12/2007
ORDER
HIS HONOUR: Mark Leslie Kennedy applies, pursuant to section 131(2) of the Transport Operations (Road Use Management) Act 1995 (the TORUM), for removal of a disqualification of licence imposed by me in this Court on the 27th of September 2005 as part of a sentence following upon Mr Kennedy's plea of guilty to dangerous driving causing death while adversely affected by alcohol.
It follows that on the date he filed his application, the 26th of October 2007, this was just over two years after the imposition of the sentence imposed in 2005. As part of that sentence and obviously, the most significant part of the sentence, Mr Kennedy was sentenced to four and a-half years' imprisonment and was required to serve 15 months before that sentence was suspended That suspended sentence remains in place.
Section 131(2C) of the TORUM directs the Court in considering the application in the following terms:
"Upon hearing any such application, the Judge of the Supreme Court or District Court or Justices constituting the Court may, as is thought 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, either by order remove the disqualification as from such date as may be specified in the order or refuse the application."
I will deal firstly with the nature of the offence. The brief circumstances of the offence are that after drinking and partying with some friends on the 9th of February 2003, Mr Kennedy made the fateful decision to drive a relatively short distance at Mudjimba to obtain food. The young woman, Jasmin McDonald who was killed, was his new girlfriend at the time. She was in the front passenger seat, two other friends sat in the rear seat.
Clearly, as a result of Mr Kennedy's intoxication, he failed to see a light Pantec truck which was parked on the side of Mudjimba Beach road and his vehicle slammed into the back of the truck and Miss McDonald was killed and the two friends were injured but not to the extent of sustaining grievous bodily harm. Mr Kennedy also sustained injuries. He had a blood alcohol reading expressed as a percentage of alcohol in his blood of .183; objectively, a very high reading.
Mr Kennedy had a relevant traffic history which was clearly a fact bearing upon the sentence including the period of disqualification. He was born on the 20th of June 1980. The first entry was for an offence of unlicensed driving on the 22nd of April 1999 for which he was fined. On the 22nd of April 1999, the same day as the first offence, he was also convicted of exceeding the speed limit by at least 15 kilometres but less than 30 kilometres and was fined for this offence as well. On the 2nd of February 2003, he was convicted of exceeding the speed limit by at least 15 kilometres per hour but less than 30 kilometres an hour and was further fined.
There were other minor entries in February of 2003 which was the month in which the offence was committed. After the accident and prior to his sentence on the 13th of June 2005, he was convicted of a further offence of speeding, which incident occurred on the 16th of April 2005. Although objectively it is not a particularly serious traffic history, clearly the offence of speeding some five months before his appearance in Court to plead guilty to the dangerous driving causing death in 2003 was an aggravating feature. Mr Kennedy has no relevant criminal history either before or since the accident.
I have read and considered his affidavit filed on the 9th of November 2007 and the statutory declaration of his present employer, Mr Daniel Heitbaum of Murphy Builders Concrete, together with a letter from his previous employer, Mr Wilksch of Palmwoods Landscaping Company, and the letter of reference under the hand of Bruce Gleeson, Solicitor, dated the 12th of December 2007 which was tendered today.
I accept without question that Mr Kennedy has done his very best to fully rehabilitate himself after this incident.
As I indicated in my sentencing remarks, there is no doubting his deep remorse. As I observed, he made a plea for forgiveness to the family of the deceased woman in Court; a most unusual circumstance and very much to his credit.
Since he has served his term of imprisonment, he has gained and maintained full-time employment. He has recently married and with family assistance has been able to purchase a townhouse as his principal place of residence. As he says, he is now married, fully employed with a mortgage and there is no question that he is now a responsible member of the community.
As I apprehend his application, the main focus is on the difficulties that he and his wife undoubtedly face as a result of the disqualification. His wife also works and she is required to drive him to work sometimes in the early hours of the morning and to pick him up in the afternoon. This undoubtedly places additional strains upon both of them.
His application also relies relevantly on his rehabilitation.
Mr Heitbaum does not suggest that Mr Kennedy's employment would be in jeopardy were the disqualification to continue. However, Mr Kennedy submits to me this morning that, in effect, his work is held back at a particular level and that he cannot advance in the company without a driver's licence. There can be no question that a driver's licence for a builder or a person working for a builder is obviously an important facility.
The licence disqualification was a part of the sentence, and an important part of the sentence, although clearly as Williams J (as his Honour then was) observed in Burton v. Queensland Police Service (1990) in 45A Crim R 315, a case where the applicant for removal of disqualification under the previous legislation governing such application had been convicted of manslaughter arising out of a driving accident at a time when he had a blood alcohol reading of .13, and had been sentenced to 10 years' imprisonment and disqualified absolutely from holding a driver's licence; the period of imprisonment is obviously the most significant aspect of the punishment.
The applicant in that case had a worse traffic history but otherwise, his circumstances were not dissimilar at the time of the making of the application to Mr Kennedy. Justice Williams did allow that application. However, it is relevant that the applicant had then served seven and a-half years of the absolute disqualification.
There is no doubt that section 131 (2C) creates a wide discretion that must be exercised by the Court, having regard to all relevant circumstances. In this case, the matters that are relevant are the nature of the offence which was very serious and that the application is made just over half-way through the disqualification period of four years. I am of the opinion the applicant, Mr Kennedy, is fully rehabilitated and there is no conduct subsequent to his disqualification to indicate that he has offended against any law of the State and there are undoubted difficulties attending the absence of a licence in his work situation but it is not suggested that he would lose his employment were the disqualification to continue.
The case is wholly distinguishable from cases such as Ellison v. Queensland Police Service (2006) QDC 125 where the five year disqualification period had only five months to run and the applicant needed a licence to attend rehabilitation for a supervening work injury. Even in those circumstances, his Honour Judge Robin QC, in lifting the disqualification, was heavily influenced by the attitude of the Commissioner which was to not oppose the application. Here, the Commissioner's attitude is neutral but Ms Dixon, on behalf of the Commissioner, has submitted "that caution should be exercised in considering whether the disqualification should be removed in this case."
In my view, the applicant, Mr Kennedy, has not satisfied me at this early stage in the disqualification period and only a few months after the statutory period of two years has expired that it would be appropriate to exercise my discretion in his favour. He may, of course, make an application in the future, if he be so advised. It follows that the application is refused.