Tabakovic v Commissioner of Police
[2009] QDC 191
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- Tabakovic v Commissioner of Police[2009] QDC 191
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Tabakovic v Commissioner of Police[2009] QDC 191
Tabakovic v Commissioner of Police[2009] QDC 191
[2009] QDC 191
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1578 of 2009
SENAD TABAKOVIC | Applicant |
and | |
COMMISSIONER OF POLICE | Respondent |
BRISBANE
DATE 24/06/2009
ORDER
CATCHWORDS: | Transport Operations (Road Use Management Act) s 131(2) - removal of 5 year disqualification early - in the last 6 months of it - applicant had returned to the community from custody subsequent to disqualification 6 months earlier than the sentencing Judge envisaged by reason of his successful appeal to the Court of Appeal. |
HIS HONOUR: This is an application under section 131 of the Transport Operations (Road Use Management) Act for removal of a five-year disqualification of the applicant from holding a driving licence that was imposed in this Court on the 10th of December 2004 as a part of the sentence when Mr Tabakovic pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm while adversely affected by alcohol. The blood-alcohol concentration was. 152 per cent.
The sentence imposed by the Judge was reduced from one of three and a-half years' imprisonment to be suspended after 16 months had been served to one of three years' imprisonment to be suspended after 10 months have been served. The Court of Appeal made no comments about the disqualification.
Nothing is presented to the Court contrary to Mr Tabakovic's assertions in his affidavit that he is remorseful for the event, which culminated in the Court of Appeal judgment available at [2005] QCA 90, that he was a model prisoner for the 12 months period, that he has not driven since the disqualification was pronounced, that apart from the ordinary inconvenience to a family man of having been excluded from the privilege of driving, he is inconvenienced in his income earning activities as a self-employed painter. (He has been able to manage, doubtless with difficulty, with the assistance of his mate, but that cannot always be available.)
Although the applicant had a bad traffic history, which appears to have come to an end with his conviction, he has no other criminal history. There is no reason to doubt that he meets the character and other requirements referred to in section 131(2). There is less than six months to run of this disqualification.
In my respectful opinion, the section is there serving the useful purpose of providing an inducement to offenders to perform well, in which event there is a reasonable likelihood that they will be given the opportunity to become licensed to drive again - after suffering a sufficiently lengthy deprivation of the ability to drive to satisfy the community's demand for punishment.
I will refer to, without any further detail, the reasons I gave in a similar matter of the applicant Mark Kennedy in Maroochydore last week in which I collected, for my own convenience, reasons given in a number of similar applications which had come before me where, as here, an offender has been sentenced to imprisonment. One of the factors is that the disqualification has no actual effect until the offender is back in the community. See Maroochydore No 135 of 2009, 19 June 2009; [2009] QDC 181.
Relief, as it was in Mr Kennedy's first application under section 131 [2007] QDC 353, may be refused or deferred. Deferral of the removal occurred in a number of the cases collected by me.
As it happens, the decision of the Court of Appeal which contains nothing pertinent in relation to the disqualification, has had the effect of returning Mr Tabakovic to the community on the basis of being disentitled from driving six months earlier than the District Court judge in imposing sentence envisaged.
I think in this case the intentions of the sentencing Judge to penalise by the disqualification can be seen as having been achieved if I remove immediately the disqualification imposed on the 10th of December 2004. The Court expresses its appreciation of Ms Gilmore's helpful submissions which may be read as adopting a sympathetic stance from the applicant's point of view.
...
HIS HONOUR: There will be an order as per initialled draft.