Needham v Commission of Police
[2011] QDC 273
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- Needham v Commission of Police[2011] QDC 273
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Needham v Commission of Police[2011] QDC 273
Needham v Commission of Police[2011] QDC 273
DISTRICT COURT OF QUEENSLAND
CITATION: | Needham v Commission of Police [2011] QDC 273 |
PARTIES: | DANIEL ARTHUR NEEDHAM (Applicant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | BD 676 of 2007 |
DIVISION: | Criminal |
PROCEEDING: | Application |
ORIGINATING COURT: | Beenleigh |
DELIVERED ON: | 08/12/2011 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 08/12/2011 |
JUDGE: | Dearden DCJ |
ORDER: | 1) Application granted; 2) Disqualification of five years imposed on 25 August 2008 be set aside effective 8 December 2011. |
CATCHWORDS: | CRIMINAL LAW – APPLICATION – disqualification from holding or obtaining a driver's licence – original sentence for dangerous driving causing grievous bodily harm – purpose of Transport Operations (Road Use Management) Act 1995 (Qld) s 131 |
LEGISLATION: | Transport Operations (Road Use Management) Act 1995 (Qld) s 131 |
CASES: | Tabakovic v. the Commissioner of Police [2009] QDC 191 |
COUNSEL: | Mr D Kelly for the applicant Ms E Kennedy for the respondent |
SOLICITORS: | Dragon Kelly solicitors for the applicant Commissioner of Police for the respondent |
- HIS HONOUR: This is an application pursuant to section 131 of the Transport Operations (Road Use Management) Act 1995 (TORUMA) by the applicant, Daniel Arthur Needham, seeking to set aside the disqualification of five years imposed by me in this court on 25 August 2008 in respect of a single count of dangerous driving causing grievous bodily harm while adversely affected by an intoxicating substance.
- In respect of that offence, I sentenced Mr Needham on that date (25 August 2008) to a sentence of three years imprisonment, suspended after serving 12 months, with an operational period of four years and (relevantly to this application) disqualified him from holding or obtaining a driver's licence for a period of five years.
- The relevant legislation under which this application is filed (TORUMA) s. 131(2) 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 two years, may at any time after the expiration of two years from the start of the disqualification period, apply for the disqualification to be removed."
- The role of this court is set out at TORUMA s. 131(2C) which provides:-
"Upon hearing any such application the 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."
- As Judge Robin helpfully highlighted in Tabakovic v. the Commissioner of Police [2009] QDC 191:-
"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 sufficient lengthy deprivation of the ability to drive to satisfy the community's demand for punishment."
- I might add by way of a further observation that not only is it an aspect of punishment but it is very clearly an aspect of community safety. The offence committed by the applicant in this case was an offence in which, although his period of dangerous driving was very short, the consequences of his dangerous driving cast a lengthy and devastating shadow, in particular, on the complainant in the proceedings who suffered a range of catastrophic injuries (that complainant being Mr Harris).
- As I indicated at the time of the sentence, Mr Harris was immediately prior to the collision, "a fit, happy and very productive 31 year-old man; he had a wife; he had children and including a three week-old baby, and it comes sadly as no surprise that this accident has had an enormous detrimental effect on his life; on his family's life; on his relationship with his wife. It has affected him...emotionally, physically, financially and literally in every way; not only on a day-to-day basis, not only his period in hospital, where he spent some time, his period off work, which took some significant time, but because he will pay the cost of this for the rest of his life."
- As I went on to observe, "Literally the life that he [Mr Harris] had before this accident is no longer the life that he has now, nor the life that he will have for the rest of his days" (Exhibit 2 - Sentencing remarks 25 August 2008 pp. 5-6).
- The legislation of course contemplates that where a disqualification in excess of two years is imposed (in this case it was relevantly five years), the court effectively has the power to retrospectively reassess that disqualification period in the light of the response by the applicant to the punishment that was imposed.
- In respect of Mr Needham, it is comforting, as a starting point, to see that his criminal history has no other matters either before or after the conviction in this court on 25 August 2008 for dangerous operation of a vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance. That is a clear indication that the otherwise good character of Mr Needham, which I took the opportunity to refer to in my sentencing remarks, has continued post-sentence and post the period of 12 months that Mr Needham spent in custody.
- The traffic history of Mr Needham (Exhibit 3) does have that concerning entry for a speeding after the incident which led to the dangerous driving conviction but before sentence in this court, but importantly, it has no entries subsequent to that. Ms Kennedy who appears on behalf of the Commissioner of Police and has very helpfully provided detailed written submissions which she has supplemented and updated with oral submissions here today, indicates that the investigation of local police, which is the usual process in such applications, has not revealed anything which would dispute the applicant's claim that he has not driven a motor vehicle on a public road since the disqualification period.
- It appears clear, therefore, that in terms of the first factor which this court has to consider, the character of the person disqualified, that both before and after the disqualification (and sentence) the applicant has otherwise been a person of good character and, as the material attests, has had a long and very positive history of employment and has otherwise been a positive contributor to the community.
- In terms of the second factor, that is the conduct subsequent to the order, it's clear (and sadly unsurprising) that given the applicant's effectively adult life long involvement in the construction industry and given his particular qualifications primarily in road building, the lack of a licence has had a catastrophic affect on his ability to obtain employment.
- The applicant's partner, in her brief but helpful affidavit (affidavit of Marie Barnier sworn 6 December 2010), confirms that the applicant has been unemployed since his release from prison (presumably at or around August 2009) and confirms the significant effect that it's had on the applicant, and also on her, because she has been his full time driver. There is no doubt a special place reserved in heaven for those such as Ms Barnier who take on the extraordinary load of assisting someone in the applicant's position. I commend her for her dedication to that otherwise thankless task.
- The nature of the offence is, of course, relevant, and as I have indicated, there was a catastrophic effect for the complainant Mr Harris and the dangerous operation, although relatively brief in nature, was a sadly predictable consequence of the time of the morning at which the applicant was driving and the effect of alcohol remaining in his system from the prior consumption of that alcohol.
- Importantly, in respect of that, although Mr Kelly who appears for the applicant concedes that there's no documentary evidence to support this (which would have been perhaps of more comfort to the court), Mr Needham in his affidavit attests to having "received alcohol rehabilitation, counselling and assistance" (affidavit of Daniel Needham sworn 12 August 2011 para. 9) and he goes on to attest that on his release from prison, he has modified his consumption of alcohol and has rarely taken alcohol for two years since his release (affidavit of Daniel Needham sworn 12 August 2011, paras. 9 and 10).
- The critical issue for the applicant, as he indicates at paragraph 13 (affidavit of Daniel Needham sworn 12 August 2011) is that while he is disqualified, he is unable to drive, and as a heavy machinery operator (roller) on construction sites, he is unable to get work or drive the rollers. In particular he notes that at his age (55) and with his qualifications (he attests to this being the only occupation that he's worked in during his life), his ability to work has effectively been dramatically reduced while the disqualification remains in place.
- Mr Kelly has placed before me a letter (which again would and should more appropriately have been presented by way of affidavit material, but no point is taken on this) from Mr Brent McLuckie, the onsite supervisor of Boral Asphalt Queensland Pty Ltd, which speaks to Mr Needham's value as a member of (as he describes it) "my work team" for a period of two and a-half years prior to being imprisoned and states that if the applicant were to get his licence back "I would have a position for him immediately within the company in his old position" (Exhibit 1).
- Ms Kennedy, who appears on behalf of the Commissioner of Police, indicates orally that the concerns that were raised in the written submission filed on behalf of the Commissioner (Exhibit 6) have been substantially met by the further material filed (the affidavit of Ms Barnier, the letter from Mr McLuckie, and the sentencing remarks) and in those circumstances, the quite appropriate caution expressed on behalf of the Commissioner has been substantially alleviated.
- In all of the circumstances, having regard to the character of the applicant, his conduct subsequent to the order, the nature of the offence and in particular, the ongoing effect of a disqualification in preventing the applicant from returning to his usual line of work, I am ultimately persuaded, although I originally imposed a disqualification of five years, that it is appropriate to make an order that that disqualification be set aside as of today's date.
- Accordingly, I order as follows:
- Application granted;
- Disqualification of five years imposed on 25 August 2008 be set aside effective 8 December 2011.
- Can you stand up, please, Mr Needham? Mr Needham, you and I met in August 2008. It was of course a sad and difficult time for you, but it was also a sad and difficult time for Mr Harris who suffered significant injuries as I have just outlined as a result of your dangerous operation of a motor vehicle. The holding of a licence is a privilege. When you hold a licence, whether you realise it or not, you are participating in a social contract with everybody else who is driving or in some other way uses the road or in some other way interacts with the roads in Queensland.
- The social contract is a simple one. It is that we will all drive, knowing that our actions can affect others. You know very well just how catastrophically your actions have affected others and of course, we ask the same of everyone else. We ask that they drive with ongoing care and respect for each of us, so it’s what we give and it’s what we expect, that's the contract, that's the deal.
- What I've decided today, is that you should be able to reapply for your licence. My order doesn’t give you your licence back. My order will result in a piece of paper which, if you wait around at the Registry, should be able to be prepared fairy quickly, and that will be an order that sets aside the disqualification I imposed of five years. Once you've got that, you still have to go to the Transport Department and you have to jump through whatever hoops and requirements the Transport Department has of you. I don’t even know what they are. It will depend at least in part on how long you've been disqualified and what other requirements they might have of you. However, at whatever stage you get your licence back, because you will now be entitled to do it, and you won’t be entitled to drive until you get that licence in your hot little hand, but at whatever stage you get it back you need to make sure that for your own sake, so you can earn an income and get yourself around, for Ms Barnier's sake, so that she doesn’t have to drive you anywhere, unless that is something that you just do in the normal course of a relationship, and for the sake of other road users, you need to make sure that you treat that licence, when you get it back with enormous respect, because as I am sure you have now realised, it's probably the most precious thing that any working person has available to them and once you lose it, it makes life extremely difficult.
- I have been satisfied that you will treat it with respect but of course, once you get it back, you’re the one who has to make sure that you do that every time you drive, and I'm sure you've figured this out already, but if there's even the faintest hint of a possibility that you might be affected by alcohol when you drive, then you just don’t drive. It’s as simple as that. You have sadly but inevitably and quite appropriately paid a very substantial price for your offence, and I am now satisfied that it’s time that you be given the opportunity to contribute to the community again by returning to the workforce if that's hopefully what's going to happen, and that in the future neither this nor any other court sees you again. As Mr Kelly quite rightly pointed out, until the 24th of August next year, you've still got two years of the suspended sentence hanging over your head and any breach of the road rules punishable by imprisonment would bring you back to court for that suspended sentence as well, so please make sure that you drive carefully and respectfully and with enormous respect for all other road users when you drive in the future.