Hooymans v Commissioner of Queensland Police (Qld)
[2007] QDC 365
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- Hooymans v Commissioner of Queensland Police (Qld)[2007] QDC 365
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Hooymans v Commissioner of Queensland Police (Qld)[2007] QDC 365
Hooymans v Commissioner of Queensland Police (Qld)[2007] QDC 365
[2007] QDC 365
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No D242 of 2007
ANTHONY DEAN HOOYMANS | Applicant |
and | |
COMMISSIONER OF QUEENSLAND POLICE (QLD) | Respondent |
MAROOCHYDORE
DATE 30/11/2007
ORDER
Catchwords. | Transport Operations (Road Use Management) Act 1995 s 131(2), (2C) - four-year licence disqualification removed seven 7 months prior to its expiration. |
HIS HONOUR: This is Mr Hooymans' application under section 131 subsection (2) of the Transport Operations (Road Use Management) Act 1995. He was disqualified by Judge Dodds' order of the 16th of August 2004 from holding a licence for four years, also sentenced to four years imprisonment with a recommendation, effective in the event, to return Mr Hooymans to the community after 16 months, for a serious offence of dangerous operation of a motor vehicle causing the death of one man and grievous bodily harm to another.
...
HIS HONOUR: The circumstances are more serious because of the circumstance of aggravation constituted by Mr Hooymans' having had an excessive amount of alcohol in his system at the time.
It was a sad accident in that the victims of it were his two mates who were his passengers. The material I have read indicates the understandable bitterness of the family of the deceased man. It also indicates that the other supported Mr Hooymans in an application for early parole, which was unsuccessful.
The basis of that application was the need which the applicant's children had of the applicant's care, given the taking of her life by their mother, the applicant's wife. Arrangements were made with her family for the care of the children. The applicant has been closely involved with them, but disadvantaged in providing all of the support they need by the loss of his driving licence and also by the exigencies of his work as a baker.
In that, he is successful; indeed, he is the proprietor of his own business in partnership with Mr Sipp who has provided a useful reference attesting to Mr Hooymans' contributions to the partnership business, which, of course, are restricted with inconvenient consequences for it by his inability to drive. The reference, if I may call it that, covers other aspects too.
Mr Hooymans had a traffic history. Apart from the offence which Judge Dodds sentenced him for, there is a failure to wear a seat-belt in 1991; there are offences of exceeding the speed limit in a speed zone by less than 15 kilometres per hour in 1999 and 2000; a careless driving charge later in the latter year; and more concerning in the circumstances, in 2001, driving under the influence of liquor, with a blood alcohol concentration of 0.063. That led to a disqualification on the 28th of May 2001; following that, in November 2003, Mr Hooymans exceeded the gazetted speed limit for which he was fined $150.
The relevant accident had already happened by this time on the 27th of December 2002 at Noosa North Shore. Mr Hooymans lost control of his vehicle on a corner while he was driving at excessive speed. It left the roadway and collided with a substantial tree, with the tragic consequences noted already.
The factors for the Court to consider are set out in section 131(2C). There, one finds listed 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.
The circumstances of the offence itself are appalling, centring on the applicant's having driven, placed his own life and other lives at risk when, by reason of the ingestion of alcohol during the Christmas season, he was not capable of driving safely, as the outcome on the day sadly proved.
His subsequent conduct has been exemplary. There is no suggestion he has driven a motor vehicle at any time. The sworn evidence is that he has not. His behaviour in custody resulted in favourable assessments. He is carrying out the responsibilities of a father without the support of his deceased wife. He is providing useful services for his community in his business.
Mr James, in his able submissions, which I found helpful, reminds me of my comment in the matter of Markusik [2006] QDC 327, to the effect that, in my view, the legislation encourages those who have been disqualified from driving to make application as part of their rehabilitation. Commonsense says that, in a world where the ability to drive is, in practical terms, so important, people ought to be encouraged to get themselves in position to do it lawfully, lest they succumb to temptation to do it without the appropriate licence.
The proposal in which Mr James and the respondent's legal representative Mr Kelly are agreed is that the disqualification in respect of Mr Hooymans should be removed from the 25th of January 2008. The provisions make it clear that removal can be from a future date, as it was in Markusik, and, indeed, in the matter of Anthony Carl Keen [2006] QDC 326.
In an appeal from a Magistrate in Lolagis v. the Chief Executive Officer Queensland Transport [2002] QDC 162, Judge Wilson allowed the appeal, holding that the Magistrate was wrong to doubt his jurisdiction to defer removal of the disqualification, and that such an order was exactly what ought to have been the outcome.
My own inclination in respect of this applicant, who has a blameless record since his return to the community, would have been to remove the disqualification immediately. The disqualification has about nine months to run as from today, which means that the actual inconvenience of having no licence has affected Mr Hooymans for 21 months. Disqualification while a person is in prison of course has few implications.
The parties have had discussions about this matter and settled on the date indicated above on the basis that it was a regrettable lapse during the festive period in 2002 which underlies this whole sad situation. It is thought salutary by Mr Kelly, and in the end Mr James has apparently gone along with it, to acknowledge that, although I would be reluctant to think that Mr Hooymans represented a threat to other people on the roads this festive season, he has been such a threat in the past. The date settled on will presumably lead to his being free to attend to the transportation requirements of his two young children for the 2008 school year and following.
I have not noted it yet, but his age was 31 at the time of the offence.
So, the order is that the disqualification be removed as from the 25th of January 2008. Order as per initialled draft.