DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant pleaded guilty in the District Court at Brisbane on 19 April 2004 to one count of dangerous operation of a motor vehicle causing death with a circumstance of aggravation, in that at the time the applicant was adversely affected by an intoxicating substance namely alcohol returning a blood alcohol concentration of 0.205%. The applicant was convicted and the sentencing judge imposed a sentence of five years imprisonment with a recommendation that “you should be eligible for post prison community based release after you have served 20 months of that sentence”. His Honour further ordered that “you be disqualified from holding or obtaining a driver’s licence for a period of seven years”.^[1]

2. [2]
   The applicant duly served his term of imprisonment and was released from prison on 20 December 2005 that is at the earliest date upon which he was eligible to be released in accordance with His Honour’s recommendation. The period of disqualification of his driver’s licence continues and does not terminate until 19 April 2011, that is 21 months hence.

3. [3]
   The applicant now applies pursuant to the provisions of s 131(2)(a) of the Transport Operations (Road Use Management) Act 1995 (“the Act”) to remove the disqualification of driver’s licence imposed by the sentencing judge.

4. [4]
   There is no doubt that the circumstances of the offence to which the applicant pleaded guilty were serious with the loss of human life, at a time when the applicant was significantly under the influence of alcohol thereby greatly reducing his capacity to drive a motor vehicle.

5. [5]
   The applicant acknowledged this fact at the time he was sentenced; expressed remorse at that time, which was accepted by the sentencing judge and the applicant continues to express remorse for his conduct.

6. [6]
   In his affidavit in support of the application the applicant states that he spent his time in custody “productively completing a number of courses and was employed during the majority of my incarceration”.^[2] He states further that since his release from prison three years, seven months ago:^[3]

• He rarely drinks alcohol;
• His “relationships have never been better and I have been employed gainfully since my release”;
• He has not committed any further offences;
• He has family support;
• He is permanently employed in his trade as a boiler-maker;
• He is in a stable personal relationship;
• He would like to have his driver’s licence to enlarge his employment opportunities;
• He has voluntarily attended the “Redlands RSL Attitude Driving Workshop” which provides an opportunity for self-help to offenders to show respect for the law and promote an awareness of the risks of driving whilst under the influence of alcohol.

7. [7]
   The applicant has exhibited to his affidavit comprehensive reports from the Borallon Correctional Centre which confirms the applicant’s assertion that he has co-operated fully with the Prison Authorities; has shown remorse for his criminal behaviour and clearly impressed Prison Authorities with his attitude to participate in the community in a productive and constructive manner.

Applicant Submissions:

8. [8]
   The applicant submits that he has satisfied the criteria set out in s 131(2C) of the Act to allow the court to exercise its discretion favourably on his application and order that his disqualification of driver’s licence be removed.

9. [9]
   The applicant further submits that he has now been within the community since release from prison for three years and seven months during which time he has not re-offended in any way and has therefore demonstrated that he is a fit and proper person to hold a driver’s license.

Respondent’s Submissions:

10. [10]
    The respondent essentially submits that the court should exercise a substantial degree of caution in considering the return of an applicant’s driver’s licence in the circumstances and “should not exercise that discretion except in circumstances where it is confident that the elements specified in s 131(2C) have been met”. Ultimately the respondent submits that the application “should be refused”.

The Law:

11. [11]
    Section 131(2C) of the Act provides that upon the hearing of an application of this nature “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.”

Findings:

12. [12]
    On consideration of the material filed and the submissions made I am satisfied in the exercise of the court’s discretion that it is appropriate to order the removal of the applicant’s disqualification of his driver’s licence from the date of this judgment for the following reasons:

a) In respect of the applicant’s “character”, the material before the court  shows that prior to the offence the subject of the disqualification the applicant had no criminal history and a relatively minor traffic history including one speeding offence and a low level “drink driving” offence (BAC 0.06%) in 1999 and has no criminal traffic history since the subject incident;

b) The applicant’s conduct subsequent to the disqualification order has been exemplary in that he has not re-offended in any way and successfully completed his lengthy parole period on 19 April 2009 without incident.  He has been gainfully employed since his release from prison on 20 December 2005 and is currently employed in his trade capacity of boiler maker since November 2008.  He has further attended the “Attitude Driving Workshop” of his own volition demonstrating his genuine commitment to rehabilitation;

c) Although it is accepted that the offence for which he was convicted was very serious the applicant has demonstrated a conscientious attitude to rehabilitation during his incarceration as the comprehensive reports from the Corrective Services Department exhibited to his affidavit demonstrate.  As a result of this attitude he was released on parole at the first available eligibility date;

d) Generally the applicant has shown genuine remorse for his serious criminal misconduct and has further shown a willingness to become a useful member of society.  As Williams J (as he then was) said in Burton v Commissioner of Police (Qld) 1990 10 MVR 329 at 332 “…it is in the interests of the community that this young man ….. be able to continue a law abiding self sufficient lifestyle and not become a further burden on the public purse. He can best do that if he is able to retain his employment and provide for his wife and family.  In my view he has been punished enough and he ought to be given the opportunity of driving a motor vehicle again so that he can further his law abiding self sufficient lifestyle”.  These comments would appear to be apposite to the current application and echo the remarks of Sachs LJ in R v Shirley (1969) 1 WLR 1357 at 1358 to which Williams J referred in Burton above.

13. [13]
    My order is that the disqualification of driver’s licence imposed on the applicant on 19 April 2004 be removed from the date hereof pursuant to s 131(2) of the Transport Operations (Road Use Management Act) 1995.