Gonsalves v Commissioner of Police
[2014] QDC 36
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- Gonsalves v Commissioner of Police[2014] QDC 36
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Gonsalves v Commissioner of Police[2014] QDC 36
Gonsalves v Commissioner of Police[2014] QDC 36
DISTRICT COURT OF QUEENSLAND
CITATION: | Gonsalves v Commissioner of Police [2014] QDC 36 |
PARTIES: | DAVID ALAN GONSALVES v COMMISSIONER OF POLICE |
FILE NO/S: | 781/2012 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane Registry |
DELIVERED ON: | 20 February 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 February 2014 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | Absolute disqualification from holding or obtaining a drivers licence – removal of orders – significant rehabilitation – relevance of employment to rehabilitation. Tabakovic v Commissioner of Police (2009) QDC 191 considered. Penalties and Sentences Act 1992; s. 187 Transport Operations (Road Use Management) Act 1995; s. 131 |
COUNSEL: | G Palk for the applicant E Kennedy for the respondent |
SOLICITORS: | Commissioner of Police for the respondent |
- [1]The applicant seeks removal of orders, made pursuant to s. 187 of the Penalties and Sentences Act 1992, relating to his being absolutely disqualified from holding or obtaining a drivers licence. The application is made pursuant to s. 131 of the Transport Operations (Road Use Management) Act 1995. The order disqualifying him from obtaining or holding a drivers licence was made by her Honour Judge Clare SC on 17 October 2008.
- [2]On that date, her Honour sentenced the applicant on pleas of guilty to 36 offences relating to five separate indictments. The applicant was imprisoned for a period of four and a half years, and a parole eligibility date after nine months was set. He had served a period of presentence custody, having been in prison on remand since June of that year. In fact, he spent a considerably longer period than the nine months in prison. I shall set out details of this later.
- [3]Her Honour described the offending as representing ‘over 18months of lawlessness in which you committed a wide gamut of offences from violence, to property offending, to peripheral drug offences. In the course of that period of offending, you demonstrated a complete contempt for the rights of others.’
- [4]The offending included offences of dangerous overtaking on a busy road, crossing double white lines, running a red light and leaving the police behind at a speed of up to 150 kilometres an hour. Her Honour noted that, at times, the applicant was a disqualified driver. She continued, ‘You have a terrible driving record for someone as young as yourself. That first episode of dangerous driving was the first of seven separate episodes, and in respect of the other offences, you were on bail for those first offences.’
- [5]‘Most of the episodes of dangerous driving involve stolen cars. Six charges relate to police pursuits. In each of those pursuits, your driving was so fast, and so dangerously, that the police could not continue to follow you and were unable to apprehend you. On two occasions, you engaged in burnouts of the car until you lost control of the vehicle and caused a great deal of damage to other people’s property, and then, of course, you fled.’
- [6]On another occasion, the applicant drove his motor vehicle at a police officer who was trying to stop him. On another, he overtook a vehicle and so was on the incorrect side of the road, with oncoming traffic, up a blind hill. One car that had been stolen was burnt, and another dumped. Other offences involved burglary and assaults. At the time of his offending, the applicant was 18 to 20 years of age. It will surprise no one familiar with our courts that he was a significant drug user.
- [7]Her Honour regarded the applicant’s appalling driving ‘as the most serious aspect’ of his offending. She described it as being ‘in the worst category’ of such offending, though I note that no injuries appear to have been caused as a result of the driving.
- [8]In imposing the head sentence of four and a half years, her Honour said, ‘there is no real option but to sentence you to a term of imprisonment of a significant length. This is because of the deliberate and persistent dangerous driving; the flaunting of the lawlessness; the substantial loss of property; the number of offences; the number of offences in breach of bail and the community service order; the period of time over which you offended; the fact that there were episodes of violence in the course of the offending.’
- [9]The total damage caused by the applicant to property other than the cars was some $42,994 and about another $35,000 related to damaged cars.
- [10]Prior to her Honour’s sentence, the applicant had a criminal history involving wilful damage, public nuisance, possession of drugs and related equipment, possession of a knife in a public place, obstructing police, breach of community service order and an entering premises and committing an indictable offence, over the period from 2004, when the applicant was 16 years of age, up until 2007.
- [11]The applicant himself says in his affidavit that between 2000 and 2008, that is, from age 13 to age 20, he was drug dependent, but says that he has now ceased all drug use. He says, in fact, he has only limited recollections of his offending, due to his drug use.
- [12]During his imprisonment, the application did much to address his drug addictions. He completed the ‘Get SMART’ substance abuse prevention program, incorporating, among other things, an individual relapse prevention management plan. He completed the ‘Making Choices’ program and a number of vocational and self-improvement certificate courses. He returned a significant number of drug-free screening tests in prison and has done so again since, most recently on 10 January 2014.
- [13]He was initially released from prison on 1 June 2011, after serving three years of prison in total, and has committed no subsequent criminal or traffic offences. It must be remembered that if he had been caught driving, even if committing no other offence, that itself could have constituted the offence of driving whilst disqualified.
- [14]He initially found employment at Bunnings but, due to a breach of parole was returned to prison on 31 August 2012. A condition of his parole was that he not attend licensed premises. He did so, in breach of this order, but apparently intended only to meet a friend and did not drink. He and his friend were recognised by police, and that is the reason his breach was detected. Nevertheless, he remained in prison until 21 March 2013, about six and a half months. His parole ultimately expired on 22 August last year.
- [15]In all, therefore, he has spent from June 2008 until 1 June 2011, and then from 31 August 2012 to 21 March 2013 in prison. A total, I calculate, of a little over three and a half years. Since his sentence on 17 October, he has spent from 1 June 2011 to 31 August 2012 and the period to-date, from 21 March 2013, a total of 26 months, in the community. During this time, he has, of course, been unable to drive, by reason of the disqualifying order.
- [16]He worked for Traditional Funerals at Burpengary from July 2013 until 8 January 2014. He had been placed on six months probation. It seems that he was a good worker. A letter from Alex Medcalf, the firm’s general manager, indicates, however, that the lack of a licence ‘was a real issue that had to be catered for, and it was very unproductive to support him constantly with a personal driver for work tasks.’ I readily conclude, from Mr Medcalf’s affidavit and from the applicant’s own affidavit, that if the applicant had held a drivers licence, he would not have lost that employment.
- [17]The applicant has also recently enrolled in and completed an online RACQ driving awareness course.
- [18]The applicant currently lives with his sister and her children at Murrumba Downs. It is clear that he has reconciled with his family. His mother, Desley Gonsalves, says, in a affidavit filed by leave today, that he is ‘doing well’ and has the support of his family. She says she is ‘proud of his efforts at making a new life’. Often enough material provided by family can, of course, be much influenced by the personal relations between them. For that reason, I think the evidence of Alec Jones is of greater importance. He is a consultant forensic psychologist. He was initially engaged by the Queensland Corrective Service to manage the applicant’s psychological treatment. In an affidavit of 13 November 2013 he says:
- The material filed in support of the application, which he says he had read, was consistent with material presented to him by the Department of Probation and Parole;
- That the applicant has developed insight into his offending and discussed his rehabilitation and methods of self management with Mr Jones in detail;
- The applicant currently rides everywhere on bicycles or takes public transport;
- The applicant’s capacity to attend Mr Jones’ clinic at Woolloongabba is itself compromised by the difficulties he has with transport (it must be remembered, he is living at Murrumba Downs) but he has nevertheless maintained constant contact by phone. Mr Jones says such calls exceed 20 hours in duration;
- The applicant grew up in a dysfunctional family (which I interpose might have been expected given his drug use from age 12 and his first driving offence at age 13 as referred to in Mr Jones’ material);
- The applicant, up to the time of his being taken into custody, might have been diagnosed as suffering post-traumatic stress disorder with dissociative symptoms and with a co-morbid substance abuse disorder and a depressive disorder;
- Frequent substance abuse tests by Queensland Corrective Services officers have, to Mr Jones’ knowledge, returned negative results. Mr Jones says he has seen a number of the test certificates himself and it must, of course, be remembered that he was initially engaged by the service to manage the applicant’s psychological treatment;
- The applicant has indicated to Mr Jones he also undertook a parenting program in prison to help understand his own offending and importantly, in my view, to make sure such problems as domestic violence do not happen in his own life. His maturity in this regard is demonstrated by the level of his involvement, Mr Jones says, in the care of his sister’s young children.
- [19]Mr Jones expresses the opinion that the applicant has, ‘demonstrated a marked stability,’ and, ‘is capable of acting as a model rehabilitated behaviour for others and acts most responsibly within society.’ He also said the applicant ‘indicated that he is committed to an ongoing therapeutic relationship for the distant future.’
- [20]Importantly, Mr Jones says that the applicant is ‘unable to advance his employment potential unless he is able to obtain a driving license’. He says the impact of not being able to do so, on his mental health could be significant in creating a sense of hopelessness and helplessness.
- [21]I am, myself, incognisant of the significant relationship between employment and the likelihood of person engaging in criminal offending. Indeed, it might be said, in my view, that the lack of regular employment is one of the most marked indicia of likely future offending.
- [22]The respondent opposes the application. In the respondent’s submissions reference is made to s. 131(2)(C) . Transport Operations (Road Use Management) Act 1995 and to s. 131(2)(C) 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
- [23]The respondent refers also to a decision of Judge Robin QC DCJ in Tabakovic v Commissioner of Police (2009) QDC 191 in which his Honour said:
‘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.’
- [24]The respondent accepts that the applicant is eligible to make the application, and submits that in order to remove the disqualification the court must be satisfied it is appropriate and proper to dispense with the disqualification.
- [25]The respondent relies on the following in opposing the application:
- the significant nature of the applicant’s offending, especially his driving offences, to which I’ve already referred;
- the fact that the practical imposition of the disqualification is limited to 26 months (as I have earlier explained) and indeed that the period since his last release on parole is very significantly less, only a little over six months;
- that his criminal and traffic history was properly described as ‘appalling’; and
- his parole breach – through the respondent does not gainsay the applicant’s explanation of the circumstances of it.
- [26]The respondent submits that the application is premature, given the volume of absolute disqualifications against the applicant, 11 in all, and the serious nature of his repeat offending and the fact he has effectively been disqualified only for 26 months, the period since his sentence during which he’s been living in the community.
- [27]In my view, the respondent’s submissions do not give sufficient consideration to the significant, indeed, impressive, rehabilitation that the applicant has undertaken and does not recognise the potentially adverse effect on his rehabilitation of significant periods of unemployment which are, in my opinion, more likely if the application is refused. As I have said, I am cognisant of the significant relationship between unemployment and the likelihood of engaging in criminal activity. I have no doubt in this case that the cause of the applicant’s rehabilitation is best served by allowing him to obtain a drivers licence which will undoubtedly assist him in obtaining work, and so increase his prospects of rehabilitation in the future.
- [28]If the applicant could stand up. I am just going to say that it is important that you continue with your rehabilitation. It is excellent that you have managed to do so. That is, of course, not to absolve you of the significant responsibility for that initial offending. Whilst your addiction to drugs at the time is understandable, because of your personal circumstances, it does not absolve you from responsibility from it. But that is something that has occurred in the past. All you could do after her Honour sentenced you in October 2008 was to try to do everything in your life to ensure that you did not offend again. And it seems to me that the attempts you have made to rehabilitate yourself have been significant and impressive and it is very much to your credit that you are able to do that. I think if you continue along that vein and continue your relationship with Mr Jones, then you have every prospect of becoming a worthwhile citizen and that is very much to your credit.
Orders
- In the circumstances, the application is allowed.
- I order that the disqualification upon the applicant’s holding or obtaining a drivers licence imposed 17 October 2008 is removed immediately.