Whiting v Commissioner of Police (Qld)
[2011] QDC 252
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Whiting v Commissioner of Police (Qld)[2011] QDC 252
- Add to List
Whiting v Commissioner of Police (Qld)[2011] QDC 252
Whiting v Commissioner of Police (Qld)[2011] QDC 252
DISTRICT COURT OF QUEENSLAND
CITATION: | Whiting v Commissioner of Police (Qld) [2011] QDC 252 |
PARTIES: | Peter Cedric Whiting (Applicant) v Commissioner of Police (Qld) (Respondent) |
FILE NO: | 318/11 |
DIVISION: | Civil |
PROCEEDING: | Application for Removal of Licence Disqualification |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 2 September, 2011 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 2 September, 2011 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | APPLICATION for removal of absolute disqualification of licence |
LEGISLATION: | Transport Operations (Road Use Management) Act 1995 (Qld) s.131 |
COUNSEL: | Mr MJ Reeves (solicitor) for the Applicant Ms K Boileau (solicitor) for the Respondent |
SOLICITORS: | Reeves Lawyers as solicitors for the Applicant Commissioner of Police (Qld)as solicitors for the Respondent |
- HIS HONOUR: This is an application to remove an absolute disqualification imposed by Judge Clare in the Brisbane District Court on 13 March 2009 in respect of an offence of dangerous driving, or as Judge Clare described it, in informal terms, an example of road rage.
- The application proceeds under section 131 of the Transport Operations (Road Use Management) Act 1995 (TORUM). The application was filed on 15 July 2011 and served on the Commissioner of the Queensland Police Service who, through his legal representative, is represented at these proceedings today.
- The circumstances of the original offence for which the applicant was sentenced by Judge Clare on 13 March 2009 are deeply disturbing. It was a situation where the applicant, who was the driver of a heavy vehicle, drove closely behind a complainant who then slowed down, perhaps in response to what the complainant perceived as a threatening gesture in the way in which the applicant drove, and then a rude gesture was made to the applicant, to which the applicant responded by stopping shortly afterwards at a set of lights and going and punching the 75 year old complainant four times in the face before driving off.
- The proceedings at which the applicant was absolutely disqualified occurred on 13 March 2009 before Judge Clare but the matter was then the subject of an appeal delivered by the Court of Appeal on 3 November 2009.
- The Court of Appeal, in addressing the appeal, noted that although, "the applicant's licence disqualification was a hardship for him and his wife" (per Keane JA), "the loss of his driver's licence has no doubt had a substantial adverse effect on the applicant and his family, but it must be understood that holding a driver's licence is a privilege. The applicant has, in the past, abused the privilege of holding a driver's licence. On the occasion of present concern, he committed a senseless attack on an elderly man... The licence disqualification imposed by the learned sentencing Judge was amply justified by considerations of personal deterrence, especially having regard to the lack of insight apparent from the applicant's subsequent behaviour...”
- The applicant may apply for the removal of his disqualification after two years pursuant to s.131(2) of the Transport Operations (Road Use Management) Act 1995 (Qld)."
- I note that Keane JA then concluded by saying, "The sentence which was imposed in this case was no more than was called for. It was not excessive, much less, manifestly so."
- What flows from that, of course, was a very clear endorsement by the Court of Appeal of the sentence imposed by her Honour Judge Clare, a sentence which clearly contemplated that, having been absolutely disqualified, the applicant would then need after the expiry of two years to persuade a Court that he was now in a position to have a licence restored to him and if that licence were restored, that it would be recognised as the privilege that it is and that, in essence, the applicant had taken appropriate steps to persuade a Court that if relicensed, he would treat any such licence with appropriate respect.
- I note that the applicant indicates, as of course he should, that he has not driven since the absolute disqualification was imposed on him. In respect of that issue, Ms Boileau on behalf of the Commissioner of Police advises that the fame and character report of Senior Constable Waugh of Jimboomba Station indicates that there is no evidence to suggest that the applicant has driven a motor vehicle during his period of disqualification or committed any further offences other than those outlined in the criminal and traffic history. That, in my view, is a critical and appropriate first step in my consideration of this application, particularly, of course, leading up to and including the sentence in respect of which the absolute disqualification was imposed.
- It is quite clear that the psychological dynamics under which the applicant was operating were dynamics which were damaging to him personally (and that, of course, if it didn't affect others, would only be his problem). However, what is also clear is that the dynamics, the psychological dynamics, driving the applicant, have not only caused significant difficulties for him personally, but in the way that they have been played out have caused significant stress, distress and in fact, criminal and traffic offending affecting others.
- The applicant himself, to his credit, acknowledges that this psychological build-up of pressure has allowed him "to become enraged and the results have been [the applicant] acting atrociously" (Paragraph 21, affidavit of Peter Cedric Whiting sworn 13 July 2011).
- As a result of the offences (including the offence for which the absolute disqualification was imposed, and what has occurred since), the applicant sets out in his affidavit the significant legal fees incurred, the fines and restitution incurred; the narrow escape from a period of actual custody; the carrying out of the onerous obligations of intensive corrections order; the loss of a dream home, and the reduced circumstances in which the applicant and his wife are now living
- I hope and trust that the applicant's insight that the two years off the road has allowed him "to reflect on just how stupid and misguided [his] behaviour has been" is a true and genuine insight.
- I note that since the loss of his licence the applicant has survived with some intermittent labouring work, a modest income brought in by his wife, and some unemployment benefits to which he has become entitled. The applicant acknowledges the unacceptability of his conduct between 2007 and 2009, and the traffic and criminal offences which were committed in that time.
- Importantly, the applicant has undertaken psychological treatment with psychologist Jacobus Kleynhans who has provided a report of March 2011 (the precise date appears to have been lost in the photocopying). That report indicates that the applicant has been assisted in understanding risk factors associated with escalating patterns of aggression; has sought to provide him with a repertoire of skills and strategies for dealing more effectively with the factors that put him at risk of becoming embroiled in situations marked by patterns of escalating aggression; has involved the successful completion of an anger management course; and has provided the applicant with relevant skills to seek to manage a reasonable and appropriate working schedule in the future.
- In addition, Mr Kleynhans has assisted the applicant in coming to terms with the risks of becoming embroiled in a physical altercation if he steps out of his vehicle to confront a fellow road user, and has assisted him to understand that whatever his views may be about other road users and whether or not they meet an appropriate standard, he has to drive (if he is to return to the road) effectively on the basis that he needs to manage other people's driving and work around it, rather than (as he appears to have done on the relevant day) seek to solve the concern that he had by the unacceptable and gratuitous use of violence, as it turned out, to an elderly road user.
- Mr Kleynhans notes further in his report, "Perhaps the most important feature of the rehabilitation program was a component dealing with the problem of interpreting the motives and intentions of others and the potential risks of misconstruing the actions of others based on erroneous assumption etc. [The applicant] was furnished with a set of skills to check out his assumptions before acting on an interpretation" (Exhibit PCW3, p.1, affidavit of Peter Whiting, sworn 13 July 2001).
- I note as an aside that it seems to me that Mr Kleynhans, psychologist, has exhibited significant insight into the applicant's issues, on my reading of the material, not that any form of violence is justified, but it seemed to me that it was the car driver rather than Mr Whiting who was entitled to be upset about what had occurred on that road on that day, and that of course only makes the actions of the applicant even more outrageous, that he failed to exhibit any insight into his own responsibility for what occurred leading to his offending.
- Finally, I note the following two important matters raised by Mr Kleynhans. These are firstly, that he (Mr Kleynhans) judges the risk of the applicant becoming involved in another road rage incident as "low". And secondly, he ascribes this assessment to the fact that the applicant "has come to the profound realisation that the consequences of being caught up in such incidence significantly reduces his capacity to work, which in turn jeopardises his family's well-being".
- Mr Kleynhans notes further, that there is no doubt that the applicant "feels deep shame for potentially compromising his family's well-being and security", and that (in essence) Mr Kleynhans feels confident that the applicant "will use his capacity for self restraint to avoid any further incidents of 'road rage'". (Exhibit PCW3, affidavit of Peter Whiting sworn 13 July 2011.)
- The provisions of section 131(2C) require me (given that the disqualification was imposed by a Judge of the District Court) to have regard to (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 in deciding whether or not to remove the disqualification or to refuse this application.
- It is clear of course that the original offence as described by Keane JA was a "senseless attack on an elderly man", and as Keane JA indicated, "considerations of general and personal deterrence warranted a stern rebuke from the Court" (R v Whiting [2009] QCA 338, para 15 per Keane JA). However, I note that Keane JA contemplated in his remarks on appeal that the applicant had the capacity to apply for the removal and disqualification after two years, and it's also clear from those remarks on appeal that it was the lack of insight of the applicant which was most concerning. No doubt, the acquisition of insight would have been seen by the Court of Appeal as an important step in response to their comments.
- I consider, in particular, the report of the psychologist, Yarkimus Kleynhans, taken together with the contents of the applicant's affidavit and the lack of subsequent criminal offending which ultimately persuade me that the application should be granted. I note, quite appropriately, the submission by Ms Boileau that this Court should exercise some degree of caution and in that respect, I consider that an appropriate point at which the disqualification should be removed would be a date exactly two and a-half years from the imposition of the disqualification period.
- Accordingly, I make the following orders.
- Application granted.
- The absolute disqualification imposed by Judge Clare SC in the Brisbane District Court on 13 March 2009 be removed as of 12 September 2011.
- Just stand up please, Mr Whiting. Mr Whiting, the nature of the way in which I've provided those reasons has meant that I've had to look down and read paper rather than look directly in your direction as I provided the reasons, but I certainly hope that you've listened very, very carefully to what I've said.
- We say it frequently, but we do not say it lightly. The ability to hold a driver's licence is a privilege. When we drive on the roads, we are all taking part in a huge interlocking social contract. We expect that everyone will drive with respect for the vehicle we're driving and for the personal health of ourselves and our passengers. It doesn’t always happen, I understand that, but that's what we expect. But at the same time, everybody else whom we interact with on any given day, it might be thousands of other vehicles that we drive past, we are providing that same level of respect to each of those people and their vehicles.
- What that means is that if we fall below the expected standard and that becomes a traffic or criminal offence or both, then we are quite appropriately at risk of losing our privilege to legitimately drive on a road. The behaviour that you exhibited that resulted in your sentence in 2009 was, not to put to fine a point on it, appalling and quite frankly, I said it in my reasons and I'll say it again, seems to me to be entirely your fault, not anyone else's.
- It does seem to me, though, as I said in my reasons, that you have gained an understanding of the how, when and why that happened and as the psychologist has indicated, he's expressed his professional opinion that the risk of that happening again is low. But of course, once you get your licence back effective the 12th of March this year, so just a few days away, firstly, you're not getting your licence back, you're actually getting the right to apply for your licence back so that's the first step. Secondly, you will have to satisfy in respect of any heavy vehicle licence any further licensing requirements that the Department of Transport may require.
- So, there are a number of steps, the removal of the disqualification, secondly the application for a licence. But if and when you do get it back and in particular, if you again become a professional driver, then you need to understand the meaning of that word "professional". And that's driving in a way that, by all means meets your obligations to your employer or to yourself if you're self employed, but respects everybody else on the road. If that means running late, not sticking to a timetable as you would hope, well, that's life. I like to run my court on time but it doesn't always happen either. These are all just part of the gives and takes of daily life that we have to understand and importantly, that you have to understand to make sure that you do not put other people or their property at risk as a result of your driving behaviour.
- I'm quietly confident from all the material I've been given that you will in the future comply strictly with those obligations that every licensed driver has. But I just want to make it very, very clear that if, in any way, you fall beneath those obligations, then you would expect any future court to absolutely disqualify you, and any future Court in my position considering an application to be most unlikely to return a licence to you again in the future.
- So, today, you have been successful. You will in about 10 days time be the beneficiary of an order that your licence disqualification be removed. It's been a long period, I understand that. It's been a catastrophic personal and financial situation for you. What I'm now hoping is that when you get whichever licences back that the Transport Department issues to you, firstly that you don't drive until you have a licence of course, that's important, and secondly, that you treat those licences with enormous respect in the future.