Johnson v DPP (Qld)[2009] QDC 300

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN 

GOONDIWINDI DATE 06/08/2009

ORDER

HIS HONOUR:  The applicant, Shane Anthony Johnson, pleaded guilty in the District Court at Toowoomba on 7 March 2007 on an ex officio indictment to one count of dangerous operation of a motor vehicle with a circumstance of aggravation in that at the time he was adversely affected by an intoxicating substance, namely alcohol, although the blood alcohol concentration is not stated in the record of proceedings, or the criminal history.  Neither of the legal representatives who have made submissions to me this morning have been able to identify what that blood alcohol concentration was.

He also pleaded guilty on that date to one count of driving a motor vehicle without a driver licence while disqualified by a Court order.  Each of each offences arise out of the samecourse of driving which occurred on 9 July 2006.  The applicant was convicted of both offences.  In respect of the indictable offence, a conviction was recorded and he was sentenced to imprisonment for two years with a parole release date fixed at 1 September 2007.  He was convicted and not further punished for the summary offence.  His Honour further ordered that he be disqualified from holding or obtaining a driver's licence for a period of three years.

The applicant duly served his term of imprisonment and was released from prison on 31 August 2007 in accordance with his Honour's order.  The period of disqualification of his driver's licence continues and does not terminate until6 March 2007, that is, seven months' hence.

The applicant now applies pursuant to the provisions of section 131(2) of the Transport Operations Road Use Management Act 1995, which I will henceforth refer to as "the Act", to remove the disqualification of his driver's licence imposed by the sentencing Judge.

Section 131(2c) of the Act provides:

"Upon hearing any application the Judge of the District Court constituting a Court may, as is thought proper, having regard to the character of the person disqualified, 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 and from such date as may be specified in the order or refuse the application."

In his affidavit in support of his application the applicant states, in addition to referring to the circumstances of the offence, that upon his release from gaol he returned to work straightaway with his employer prior to his incarceration.  He worked with this employer as a labourer for 12 months before working in the same capacity for another firm for one month, and then joining his current employer Wagners as a load operator in the coalmines.  He has now worked for them for close to a year.

Whilst working at the mines he is regularly drug and alcohol tested. Proven alcohol or drug consumption during working hours would mean instant dismissal.  He has not driven a motor vehicle since his convictions on 7 March 2007.  He understands that the holding of a driver's licence is a privilege and nota right.  He fully comprehends the importance of obeying the traffic laws in respect of the safety of other road users and in respect of his own safety.  The prospect of losing his employment by not having a driver's licence has reinforced that belief.  And on 14 February 2009 he successfully completed a defensive driving program which included a segment involving the use of fatal vision (drug/alcohol) goggles.

In relation to the prospect of losing his employment, he deposes in paragraph 6 of his affidavit as follows:

"Currently my employer has to transport me to work sites which is inconvenient for them and which I am informed is a situation which cannot continue in the long term.  My employer has informed me that I will lose my employment if I do not have a driver's licence shortly."

That statement was made and sworn to on the 24th of April 2009.  I note that an undated reference from his employer which is exhibited to his affidavit is complimentary of his character and work ethic but makes no mention of his prospect of losing employment in these circumstances.

In the respondent's submission, he refers to there being no evidence before the Court which suggests that the applicant would lose his employment if he is unsuccessful in obtaining his driver's licence.  The most relevant document in this regard is Exhibit 1, which was tendered to me this morning. It is a communication from Mr Staib, his employer's site supervisor at the mine site where he is currently working.  This site is approximately 35 kilometres west of Chinchilla.

It states that it is the appellant's responsibility to find his own way to and from camp to Toowoomba each rotation.  I note that the applicant lives in Toowoomba.  Mr Staiv also states that:

"On site it is a requirement to have a Queensland driver's licence to obtain a light vehicle authorisation.  Without a licence it is becoming very difficult having somebody else to drive him about for smoko and lunch as he operates a loader in the gravel pit on the far end of the mine.  This is an issue because it is costing us valuable time and money where he could be driving himself."

On the other hand, Mr Kelly who appears for the respondent advises me that he has spoken to Mr Dennis, the employer's program manager, and that Mr Dennis has said that the applicant would not lose his employment as long as he can get himself to and from work.

What emerges from what Mr Staiv has said and what Mr Dennis has said is that there now appears to be some hardening of attitude on behalf of his site supervisor and at the same time, his employment does require him to get himself to and from work.  This involves him arranging other people to drive him from Toowoomba to Chinchilla, at which point he can be taken to the work site by his employer.  If such a person may not be available to drive him to the site on a particular occasion, then, potentially, his employment could be in jeopardy.  There also the difficulty in his being able to arrange transport from the work site back home.  I will refer to this further shortly.

In any event, the applicant states that having a driver's licence would enlarge his employment opportunities by enabling him to work on mine sites and earn better money.  I understand from what Mr Finlayson has told me this morning that he is currently earning better money because he is working on a minesite.  What Mr Finlayson stressed is the importance of him having a driver's licence so that this situation can be maintained.

I note that he is in a de facto relationship with one dependent child aged eight years and, according to the financial information recorded in his affidavit, he is currently paying off a mortgage.  He says in paragraph 12 of his affidavit:

"If I had a driver's licence, I would be able to arrange my own transport to and from work sites without having to rely on Wagners to personally organise the same.  When I was working in Middlemount, we would work 10 days on and five days off. We had to organise our own transport home.  I was sometimes unable to organise transport home and, by not having a driver's licence, I would have to stay at Middlemount on my days off."

From what I have been told this morning, he is unable to remain at the Chinchilla work site on his days off and again, as I have observed, he has to find a way home without his driver's licence.

In addition, the lack of a driver's licence has affected him on a personal level.  He has to continually rely on his partner to drive him to destinations.  This is inconvenient for her.  When she cannot assist in this way he has to rely on friends to do so.  This becomes quite expensive as he has toc ontribute to their fuel costs.

The applicant says that when he was in prison he worked in the community on a work camp program for two months.  He believes that he was a good prisoner without any marks against his name or breaches while he was in gaol.

He has also exhibited to his affidavit what are described as references to his character, copies of his criminal and traffic history and, in addition, the certificate that he undertook the defensive driving course.  Two of the references are not dated, although they refer to information relating to the period after he commenced to work for Wagners, which I understand was in May of 2008.  The respondent submits that three of the four references do not speak of his character, although I consider that two of the references do.  These are the references from Mr Wagner and Mr Kelly.

Although the criminal history exhibited to his affidavit is complete, the traffic history is not as it commences in June 2005.  This is probably because the request for a traffic history has resulted in only a particular segment being provided by the Department of Transport.  I do not criticise the applicant for this.  Fortunately, a summary of his traffic history was provided to the sentencing Judge.

The applicant's submissions principally rely on his affidavit. Essentially, it is submitted that he has satisfied the criteria set out in section 131(2c) of the Act to allow the Court to exercise its discretion favourably on his application and order that his disqualification be removed.

The applicant further submits that he has now been within the community since release from prison for 23 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 licence.

The respondent essentially submits that the Court should exercise a substantial degree of caution in considering there turn 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 section 131(2c) have been met.  Ultimately, the respondent submits that the application is not supported.  It is not submitted that the application should be refused. Mr Kelly confirms that, in this case, the respondent is adopting a neutral stance in relation to the application.

In the respondent's submissions reference is made to the serious nature of the offence of dangerous driving with a circumstance of aggravation, the applicant's previous criminal history and his traffic history, which is described as"appalling".  It is noted however, in the respondent's submission, that his last criminal and traffic convictions were on 7 March 2007 in relation to the two offences which have resulted in his three-year licence disqualification.  It is also submitted by the respondent that there is no evidence before the Court which suggests that the applicant will lose his employment if he is unsuccessful in obtaining his driver's licence.  I have already made comment about this submission.

In determining whether I am satisfied on the balance of probabilities that it is proper to remove the applicant's disqualification of his driver's licence, and if so from what date, I have regard to each of the matters listed in section 130(2c).

With reference to the applicant's character, the material before the Court supports the observation of one of his character referees, Mr Kelly, who says:

"I have known Shane Johnson for 10 years.  In that time he has been in and out of trouble and was wild in nature."

As the sentencing Judge observed in relation to the 36-year-old applicant:

"So far as the criminal history is concerned there are a number of offences which suggest to me that you had problems with alcohol in the 1990s.  There does seem to have been a period towards the end of that decade and early 2000 when you kept out of trouble for a time.  There have been a few offences - just a few - in more recent years."

This is supported by his criminal history, which shows that between 1990 and 1998, in addition to what might be described as street offences, he had been convicted once each of assault occasioning bodily harm, assault occasioning bodily harm in company and stealing, and on two counts of supplying a dangerous drug.  He was sentenced to a wholly suspended term of six months' imprisonment on the charge of assault occasioning bodily harm in company.

Between 2002 and his conviction for these offences in 2007 he was fined for another count of assault occasioning bodily harm and also for a wilful damage and a public nuisance.

On 6 February 2007 he was dealt with for breaching a protection order and for a breach of probation.  The probation order had been imposed on the 16th of January 2006 for driving under the influence of liquor with a .057 blood alcohol content and also unlicensed driving.  On that occasion his driver's licence had been disqualified for six months.  The current offences for which he was convicted in 2007 were committed in breach of that probation order and the licence disqualification.

On the 6th of February 2007 he was fined for the breach of the probation order and that order was allowed to continue.  He was admitted to a further period of 12 months' probation with a special condition that he attend a domestic violence perpetrators program.  Against this background and imposing sentence, his Honour said:

"Having taken all of those matters into account, I still remain of the view that because of your criminal history, and more particularly because of your driving history, I must impose a sentence of imprisonment and some actual time must be served.  I intend to reflect those matters which go to mitigation by ordering an earlier parole release date than would otherwise be the case."

His Honour accepted that the applicant had seven previous drink driving convictions.  He also said that the appellant had been before the Court numerous times for driving whilst disqualified and unlicensed.  It was his criminal, and more so his traffic history, which in his Honour's view compounded the seriousness of the offences.

However, the appellant's counsel submitted to his Honour with reference to the probation order that he had responded well to it, that he had undertaken various courses to address problems which he had with alcohol, that he had sought the assistance of a doctor or medical practitioner and had responded well to treatment and advice that had been given to him.

This submission is consistent with his conduct subsequent to the order to which I will refer because this demonstrates that, as Mr Kelly says in his reference, over the past 12 months he has matured and does not drink any more. Therefore, while his character before these offences has been poor, there has been a significant improvement since that time.

In this regard it is relevant that not only has he not been back before the Courts since March of 2007, a period of two years and five months, but also these offences committed on 9 July 2006 were his last offences.  They were committed just over three years ago.  The applicant's conduct subsequent to the disqualification order has been exemplary in that he has not re-offended in any way and has successfully completed his parole without incident.

He has been gainfully employed since his release on parole on 31 August 2007 and is well respected by his employer and those who work with him.  The reference by employer, Mr Wagner, says of him:

"Shane has shown to be of sound character.  His attendance and work ethic in dealing with both the public and his fellow workers has been excellent."

The references from Messrs Sherwin and Thomas are also consistent with his work being of good quality and of his having a good work ethic.  In his reference, Mr Kelly also says:

"We have been employed by Wagners in their mine operation at German Creek where Shane was in charge of the production end loader, placing a lot of responsibility on him which he handled with ease.  There was also random drug and alcohol tests he never failed.  He is paying off a house and would like to have a stable relationship with the mother of his son. I am convinced he has learnt his lesson and would treat a licence to drive with respect.  I am a father of six with a solid background and know I have an influence on Shane."

In addition, as I have noted, he has attended the defensive driving program of his own volition and successfully completed it, demonstrating his genuine commitment to rehabilitation. He makes this application with a view to enlarging his employment opportunities and consequent earning capacity, and certainly with the motivation of maintaining his current employment at the mine site with the increased earning capacity which that provides.

This will undoubtedly assist him in paying off his mortgage on the house and providing a stable environment for him, his partner and his son.  This would also be a contributor toward his rehabilitation.

I accept that the offence was a serious one.  The circumstances of the offending are summarised in the respondent's outline of submissions with footnoted page references.  As this is consistent with his Honour's sentencing remarks, it is convenient to adopt it for the purpose of my decision.  The circumstances of the offending are therefore as follows:

"On 9 July 2006 the applicant had been drinking from lunchtime at a hotel.  Later that day the applicant had taken a taxi home with a friend.  He later took some sleeping tablets.Some time later the applicant received a telephone call which he found distressing and involved his partner from whom he was, at the time, estranged.  The applicant then drove his motor vehicle and subsequently collided with another vehicle. The applicant then supplied a false name and drove off. Within a short distance the applicant collided with another vehicle, causing that vehicle to collide with a third vehicle. The damage caused was in excess of $20,000."

Reference is made in his Honour's sentencing remarks to some of the occupants of the vehicles suffering from whiplash.

I note, as the respondent points out, that in paragraph 9(a)of his affidavit the applicant expresses a differentre collection as to when he took the sleeping tablets, saying that he took them after receiving the distressing news about his partner.  I do not proceed on the basis of this recollection but give the applicant the benefit of the doubt that, as submitted by Mr Finlayson, the difference in his account at this point of time is simply the result of a fading in recollection over the passage of time.

Despite the very serious nature of the offence which the respondent, in any event, accepts is not towards the top of the scale, because it did not involve any death or grievous bodily harm, I am satisfied for the reasons I have given that since this offending has occurred, and particularly since his Honour's order, the applicant has demonstrated a conscientious attitude towards rehabilitation.

In relation to other matters, I note the observation by the respondent that there is no evidence that suggests that the applicant will in fact lose his employment if he is unsuccessful in his appeal.  This is true.  However, unlike other provisions of the Act, it is not essential for the Court to be satisfied that a suspension would cause extreme hardship to the applicant or the applicant's family by depriving him of the means of earning a living.  I refer, for example, to sections 29(2) and 30D(2) of the Act.

Nor is it necessary to establish this by affidavit evidence. That, of course, is not to say that the issue of whether or not he will lose employment if unsuccessful on the appeal is irrelevant.  Mr Kelly, for the respondent, has referred me in that respect to the decision of Judge Robertson in Kennedy v. QPS (2007) QDC at 353 where despite other circumstances favourable to the applicant in that case, including the fact he was considered as being fully rehabilitated, his Honour rejected the application in circumstances where there was nothing to suggest he would lose his employment should the disqualification continue.

However, in the present case what is relevant is that on the material provided this morning, the potential of the applicant losing his employment emerges from Mr Staib's correspondence and his continued employment, according to Mr Dennis, depends on his being able to get to the work sites on time and that this, in turn, depends on the availability of other people todrive him from Toowoomba to Chinchilla.  As I have said, particularly so far as his site supervisor is concerned, the reappears to be a hardening of attitude by his employer to the absence of his driver's licence.  It appears that the patience and for bearance that they have shown to date is wearing thin.

Further, it is relevant that the removal of the licence disqualification will at least ensure that he will be able to continue to engage in employment activities which enlarge his earning capacity, thereby enhancing his rehabilitation.

For completeness, I observe that I do not consider the inconvenience to the applicant and his wife arising from the licence disqualification in his day-to-day life is a factor in favour of removing it.  Some level of inconvenience can always be expected to flow from a disqualification.  If it did not, a disqualification would not have the essential deterrent effect.  However, it is another matter when there is an indication of the potential loss of employment arising from his not holding a driver's licence.

Generally, the applicant has shown genuine remorse, as expressed in his affidavit, for his serious criminal misconduct and has further shown a willingness to become a useful member of society.  This is the conclusion that Judge Tutt recently came to in Nolan v. The Queen (2009) QDC 216 in removing a licence disqualification pursuant to section 131(2) of the Act.

In that case his Honour applied the statement of Williams J in Burton v. Commission of Police (QLD) (1990) 10 MVR at 322 that:

"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 do best 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 are also apposite to the present case, although the applicant is not a young man.  In my view, he can do best if he is not only able to retain his employment but is also able to ensure that he can continue to engage in employment opportunities which will enlarge his earning capacity and provide for his wife and family.  In my view, he ought to begiven the opportunity of driving a motor vehicle again so that he can further his law abiding, self sufficient lifestyle.

Having said this, I am conscious that in disqualifying the applicant's driver's licence for three years his Honour was bound by section 78(3) of the Act to disqualify him for a period of between two and five years.  In these circumstances I have considered whether the disqualification imposed on the applicant on 7 March 2002 should not be removed until the halfway point between two and three years - that is, after the passage of another month - or possibly for a period of another two months in accordance with the alternative submission made to me by Mr Kelly today.

Consistently with section 131(2c) this removal may be effected from a specified future date as confirmed by Judge Wilson in Lolagis v. Chief Executive Officer Queensland Transport (2002) QDC 162 at page 4.  However, I have concluded that in circumstances in which, as I have said, Mr Staib's correspondence demonstrates some loss of patience by his employer, at least on the site where the applicant is working, there is now a potential that his employment could be lost if there is further delay despite the tolerance which his employer had shown over the period of three months since the application was initially filed.

In these circumstances, given that I consider that his continued employment is important to his continued rehabilitation, my order is that the disqualification of driver's licence imposed on the applicant on 7 March 2004 be removed from this date, 6 August 2009, pursuant to section 131(2) of the Act.

I thank both legal representatives for their assistance. Unless there are any further orders sought, that is the order of the Court.

MR FINLAYSON:  Thank you, your Honour.  I have a draft order. Did you want me to hand that up, your Honour?

HIS HONOUR:  Yes.  Has Mr Kelly seen it?

MR FINLAYSON:  I don't believe so.  It just merely states, "The disqualification imposed in the Toowoomba District Courton 7th March 2007 be removed as from" - it says "3rd August". I assumed it was going to be on last Monday, but that can be changed.

HIS HONOUR:  I can change that.

MR FINLAYSON:  Do you have any objection if I hand that up, Mr Kelly?

INSPECTOR KELLY:  No.

.MR FINLAYSON:  Does your Honour just require one?

HIS HONOUR:  I believe one is enough for the file and then it can be given to the Registrar so that the order can be settled.

MR FINLAYSON:  Just those two dates will have to be changed, the one where it has date 3rd August and the one in the actual date, your Honour.

HIS HONOUR:   So the order will be that the disqualification imposed in the Toowoomba District Court on 7th March 2007 be removed as from 6th August 2009 in accordance with the draft which has been initialled and dated by me on this date.  That document will be placed with the file so that it can be perfected.