Webster v The Commissioner of Queensland Police
[2011] QDC 162
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- Unreported Judgment
- Webster v The Commissioner of Queensland Police[2011] QDC 162
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Webster v The Commissioner of Queensland Police[2011] QDC 162
Webster v The Commissioner of Queensland Police[2011] QDC 162
DISTRICT COURT OF QUEENSLAND
CITATION: | Webster v The Commissioner of Queensland Police [2011] QDC 162 |
PARTIES: | Paul James Webster (Applicant) AND The Commissioner of Queensland Police (Respondent) |
FILE NOS: | D30/11 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 29 July 2011; ex tempore |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 29 July 2011 |
JUDGE: | J.M. Robertson DCJ |
ORDER: | Pursuant to s 131(2C) of the Transport Operations (Road Use Management) Act 1995 (Qld) order that the disqualification order made by me on the 23 May 2005 be lifted as at today's date. |
CATCHWORDS: | APPLICATION – TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT 1995 (QLD) (THE TORUM) – where applicant’s licence was disqualified absolutely on 23 May 2005 after he had pleaded guilty to dangerous driving causing grievous bodily harm to two people while adversely affected by illicit drugs – where applicant now applies under s 131(2) of the TORUM for the removal of the absolute disqualification – whether the considerations under s 131(2C) warrant the removal – where since the applicant’s release from prison in August 2006 he has not offended against any traffic laws and has been in compliance with his parole order since December 2010 – where matter affecting removal is the applicant pleading guilty to four offences of supply of dangerous drugs in December 2010 Legislation: Transport Operations (Road Use Management) Act 1995 (Qld) Cases Considered: Kennedy v Commissioner of Police [2009] QDC 181 Lolagis v Chief Executive Officer Queensland Transport [2002] QDC 162. Tabakovic v Commissioner of Police [2009] QDC 191 |
SOLICITORS: | Ms C. Emery from Chelsea Emery & Associates for the applicant Ms K. Boileau and Mr W. Kelly for the respondent |
- [1]On the 23 May 2005, Mr Paul Webster was sentenced by me to three and a half years imprisonment after he had pleaded guilty to dangerous driving causing grievous bodily harm to two people while adversely affected by a concoction of illicit drugs. I also ordered, as I was empowered to do at that time, that he be disqualified from holding or obtaining a driver's licence absolutely.
- [2]He has applied, pursuant to section 131 of the Transport Operations (Road Use Management) Act 1995 (Qld) (the TORUM), for an order that the absolute disqualification ordered on that day be removed.
- [3]Section 131(2) of the TORUM provides:
"A person who has been disqualified, by operation of law or an order, from holding or obtaining a Queensland driver licence absolutely or for a period of more than 2 years, may, at any time after the expiration of 2 years from the start of the disqualification period, apply for the disqualification to be removed".
- [4]Section 131(2C) of the TORUM provides:
"Upon hearing any such application a 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".
- [5]As both Mr Kelly and Ms Boileau as counsel for the Commissioner have noted in their written submissions, in deciding whether to exercise its discretion, the Court is guided primarily by section 131(2C) of the TORUM, which requires the Court to consider (1) the character of the person disqualified; (2) the person's conduct subsequent to the order; (3) the nature of the offence; and (4) any other circumstances of the case.
- [6]The purpose of section 131 of the TORUM was highlighted in Tabakovic v Commissioner of Police [2009] QDC 191 by his Honour Judge Robin QC:
"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".
- [7]The offence for which Mr Webster was sentenced by me took place late in the afternoon of the 29 October 2003 on Bradman Avenue at Maroochydore. Mr Webster was born on the 25 January 1971, so he was 32 at the time of the offence and 34 at the time of sentencing. He was adversely affected by a cocktail of illicit drugs, including methyl amphetamines, and had not slept for many days, and late in the afternoon of that day he simply drove head-on into the vehicle driven by Mr and Mrs Geitz both of whom were very seriously injured.
- [8]He had a significant antecedent traffic history and a criminal history which included a conviction on the 26 July 1991 for dangerous driving causing grievous bodily harm whilst adversely affected by alcohol, for which he was sentenced on that day to three years imprisonment with a parole recommendation that he be released after serving one-third of the term of imprisonment. He was disqualified from holding or obtaining a driver's licence for five years. That was his first criminal conviction when he was 20 years of age.
- [9]His traffic history however commenced in 1988, and when he was sentenced by me, he'd accumulated another three entries in his criminal history, albeit not of a serious nature, two of which involved very low level dishonesty. That he reached 20 years of age without any prior criminal history is, in the context of proceedings in this Court, unusual, and this unusual and apparent descent into anti-social behaviour at an older than usual age was explained to some extent by a report from a psychiatrist which was placed before me.
- [10]Whilst in custody for the earlier offence of dangerous driving, Mr Webster, who had hitherto led a productive and promising life, was introduced to heroin to which he became addicted. He had also suffered and continued to suffer thereafter from long-term initially undiagnosed depression and had resorted to illicit drugs along with prescribed drugs as a means to relieve his distress.
- [11]Since his release from prison in relation to the sentence I imposed, which would have occurred on the 23 August 2006, he has not offended against the traffic laws. He has however been convicted of a drug offence, and that is the focus of the submission made by the Commissioner, as it clearly bears on relevant discretionary matters, particularly those set out in section 131(2C)(a) and (b).
- [12]On the 1 December 2010, he pleaded guilty to four offences of supply of dangerous drugs between the 31 August 2008 and the 3 January 2009, and he was sentenced by Justice Peter Lyons. As can be seen from his Honour's sentencing remarks, the supplies related to one of cannabis and three of amphetamines. His Honour described Mr Webster's level of criminality as low, in that the supplies were of small quantities to his then-girlfriend, who he knew was already a drug user, which he facilitated only in the sense of bringing the actual supplier into contact with the user.
- [13]As Justice Lyons noted, Mr Webster's offending only came to light as a result of admissions that he had made to the police, and he also provided a high level of co-operation to the police in relation to other offenders. In his lengthy sentencing remarks, which are very helpful, his Honour set out Mr Webster's many attempts upon his release from the imprisonment that I'd imposed, to overcome his drug addiction and the many relapses, although only on these occasions before his Honour did Mr Webster actually descend into re-offending.
- [14]His Honour imposed a sentence of six months on each count and activated 12 months of the suspended sentence imposed by me and ordered that all sentences be served concurrently and he ordered that Mr Webster be released that day on immediate parole.
- [15]Both in an affidavit filed by his solicitor Ms Emery and an affidavit filed by Mr Webster on the 7 April 2011, and in addendum affidavits filed by leave today by both persons, it is clear from the information obtained from Priscilla Berry, the parole officer with the supervision of Mr Webster under his Honour's order, that he is continuing to engage with alcohol, tobacco and other drug services and has not been targeted for any drug screen and has not breached his parole.
- [16]His reporting obligation under the parole order had been reduced to monthly rather than fortnightly visits as at the 28 July 2011, which the parole officer indicated to Ms Emery was because he was complying well with the parole order. Ms Berry indicated to Ms Emery that there were no psychological or psychiatric concerns recorded in the original assessment of the applicant in 2010, however this was completed by self-reporting. It is obvious that since the sentence that I imposed, Mr Webster continued to struggle with drugs and his involvement in the drug culture and people associated with the use of dangerous drugs.
- [17]When I sentenced him on the 23 May 2005, I made this comment: "As is often the case, that disqualification involves the peculiar fiction in that after a certain time you can apply to have that licence reinstated. Until there are persuasive medical reports to suggest that you are free from drugs absolutely, I would state now that you would represent a significant danger to the community if your licence was reinstated without that qualification". Not surprisingly, the Commissioner relies upon that statement and makes the submission that, as there are no such medical reports, the application should be refused.
- [18]Mr Kelly and Ms Boileau today have, however, made the concession - if I could call it that - that were I to grant the order to lift the disqualification, I could make it on the day that he completes his parole, as it is clear under section 132(2C) that the Court has that power: see also the judgment of his Honour Judge Alan Wilson SC (as his Honour then was) in Lolagis v Chief Executive Officer Queensland Transport [2002] QDC 162.
- [19]Mr Webster also attests to the fact that he has had difficulty in obtaining employment, (a) because of the economic conditions at the moment and his lack of qualifications, and (b) because he does not hold a driver's licence. He has since his appearance before Justice Lyons expressed a hope to obtain work in the mining industry, which clearly would require a driver's licence.
- [20]Although there are no medical reports, there are the quite persuasive responses to Ms Emery from his parole officer which suggest that Mr Webster is adhering to the conditions of his parole and not using drugs.
- [21]I think the most important factor here, however, is that he has now served over six years on the disqualification since I made the order on the 23 May 2005. In Mr Kelly's earlier submission, he referred to Judge Robin's judgment in Kennedy v Commissioner of Police [2009] QDC 181, in which his Honour conveniently summarised a number of his Honour's recent decisions in relation to applications under section 131 of the TORUM, which provide guidance as to the appropriate exercises of discretion in which to remove a disqualification. I have had regard to those decisions, which I agree with Mr Kelly and Ms Boileau are very helpful.
- [22]I'm satisfied, having regard to the matters set out in section 131(2C), that it is appropriate in this case to order the removal of the disqualification, and I order that the disqualification order made by me on the 23 May 2005 be lifted as at today's date.