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Wyman v Commissioner of Police[2015] QDC 231

Wyman v Commissioner of Police[2015] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

Wyman v Commissioner of Police [2015] QDC 231

PARTIES:

BRIAN ARTHUR WYMAN

(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

2874/ 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

27 August 2015, delivered ex-tempore

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2015

JUDGE:

Farr SC DCJ

ORDER:

The disqualification of the applicant’s driver’s licence ordered on the 7th of March 2013 is removed.

CATCHWORDS:

APPEAL- s 222 Justices Act 1886- whether the appellant’s disqualification from holding or obtaining a Queensland driver’s license for four years should be removed.

COUNSEL:

D H Keim for the appellant

E A Gullo for the respondent

SOLICITORS:

Guest Lawyers for the appellant

Public Safety Business Agency for the respondent

  1. [1]
    This is an application pursuant to section 131, subsection (2) of the Transport Operation (Road Use Management) Act 1995 (“the Act”) for the removal of the disqualification of Brian Arthur Wyman from holding or obtaining a Queensland driver’s license for four years, which was imposed by the District Court of Queensland at Southport on the 7th of March 2013.
  1. [2]
    Under section 131, subsection (2)(c), when hearing such an application, the Court may have regard to the following considerations: (a) the character of the person disqualified and the person’s conduct subsequent to the order, (b) the nature of the offence and (c) any other circumstances of the case. The purpose of section 131 was highlighted in Tabakovic v Commissioner of Police (2009) QDC 191 by his Honour Judge Robin QC where he 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.”
  1. [3]
    The applicant has submitted this application under section 131, subsection (2) of the Act and has done so more than two years after the disqualification was ordered and is therefore eligible to make the application. An application of this nature causes the Court to consider the exercise of discretion as to whether the application should be allowed. There is no requirement to allow the application. It’s a matter that must be considered in view of all relevant circumstances. Ultimately, the Court must be satisfied on the balance of probabilities that it is appropriate to dispense with the sentencing Judge’s finding that a disqualification period of four years was appropriate. The onus of proof is on the applicant to demonstrate that it is proper to remove the disqualification and if the applicant cannot do so, then the application will be refused.
  1. [4]
    Turning now to the character of the applicant and his conduct subsequent to the order. The applicant is a man with a significant criminal history who has struggled with issues of substance abuse throughout his adult life until a few years ago. In his affidavit, he speaks of – or speaks to the fact that his youth and young adulthood was marked by drug use, criminal conduct and incarceration. It was in that context that his criminal history was compiled and his traffic history was compiled. And I’ll come back to that. Insofar as the offences that are relevant to the sentence that was imposed upon him that I am considering today, he appeared in the District Court at Southport, as I say, on the 7th of March 2013 in relation to a number of criminal offences that were committed between the 10th of June 2011 and 29 October 2011. Those offences included receiving tainted property obtained by way of an act constituting a crime, fraud, possessing relevant substances or things, possessing anything used in the commission of a crime defined in part 2, wilful damage and enter premises and commit indictable offence by break. The following traffic matters were also dealt with at sentence: exceeding the speed limit by less than 13 kilometres per hour. That occurred on the 15th of December 2010. And then six charges of disqualified driving, those offences having occurred on the 28th of December 2010, 31st of January 2011, 23rd of May 2011, 12th of August 2011, 21st of August 2011 and the 25th of August 2011. He was also convicted of one count of unlicensed driving on the 25th of October 2011.
  1. [5]
    He was sentenced overall to a period of two years’ imprisonment, although six months imprisonment was imposed in relation to the driving offences. But those terms of imprisonment were ameliorated with an immediate parole release order. And he was disqualified from holding or obtaining a driver’s license for four years. I note that he had 159 days of pre-sentence custody at the time of his sentence, which was declared. At that sentence, his Honour Judge O'Brien considered the applicant’s criminal history and that some of the offences were committed whilst on bail. I note, however, that it was accepted that the applicant had made significant changes to his life since at least April of 2012. And, of course, he entered pleas of guilty to the charges in question.
  1. [6]
    It is the applicant’s traffic history which is of most relevance to this application. When a young man, he resided in New South Wales. He was a repeat traffic offender, which ultimately resulted in him being declared a habitual offender under the Road Transport Act in that state and he received a cumulative disqualification that ran until the 13th of December 2014. He subsequently moved to Victoria and applied for a driver’s license there, which he obtained. He then later moved to Queensland and obtained a Queensland driver’s license. It was as a result of his criminal activity related to his drug use that the applicant came to the attention of Queensland Police, who then discovered that he had been disqualified from holding or obtaining a license in New South Wales.
  1. [7]
    On discovering that information, police then investigated all previous interactions with the applicant and he was subsequently charged in relation to six instances where he had been intercepted or observed by police to be driving a motor vehicle. Those are the six cases of – six charges of disqualified driving that I have already referred to. So it’s not the case that he was apprehended on each of those six occasions, but rather they were all charged at the one time at some subsequent time.
  1. [8]
    Now, with that background in mind, I return to the issue of the character of the applicant and his conduct subsequent to the order. I note that he was imprisoned in November of 2011 and spent approximately five months in custody. It appears that he used that time effectively and completed a number of courses, including drug and alcohol rehabilitation courses. Of cosurse, that is something which occurred prior to his appearance in the Southport District Court, but, nevertheless, he has been drug-free since the time of his release from custody, which is now a number of years.
  1. [9]
    He has maintained full-time employment since his release from custody in 2012. Shortly after his release, he obtained work for Filter Systems Australia, a company which services and supplies domestic and commercial water filtration systems. An affidavit of Mr Ian Gundrill is before the court. He is the director of that business, and he deposes to the circumstances of the applicant’s employment and the fact that he has, since being first employed on a part-time basis, proven himself to be a diligent, reliable and extremely capable employee to the point where Mr Gundrill wishes to entrust him with the responsibility of managing the company. Mr Gundrill has known the applicant most of his life and speaks very highly of him and regards him as a true professional and having full faith in him.
  1. [10]
    I note, however, that since his sentence in March of 2013, the applicant has committed one further offence, that of assault or obstruct a police officer, such offence occurring on 19 June 2014, for which he was convicted and fined $400. The facts of that offence involve the police attending at an address in Oxenford to conduct a welfare check on a female person. At that time, the applicant approached police. They noted that he appeared to be intoxicated. When he went to leave police detained him in order to investigate matters concerning the female person, and the applicant was then uncooperative and struggled when they attempted to restrain him with handcuffs. He was subsequently charged with the obstruct police offence.
  1. [11]
    Significantly, I note that the applicant has not committed any driving offences since the 24th of August 2011. Additionally, it’s been submitted by the applicant, and there is no evidence to the contrary, that he has not driven since the disqualification of his licence on the 7th of March 2013. In submissions, the respondent has accepted that there is no evidence to suggest that the applicant is now not of good character. I note also the information before the court demonstrates that the applicant’s personal life has also changed significantly since the time of his release. He is now the father of a two year old daughter. He shares custody of his daughter with the girl’s mother and has indicated that he wishes to have shared custody of his daughter for a number of days per fortnight. I note that there is considerable distance between where his daughter lives, which is near Ipswich, and where the applicant lives, which is at Oxenford, and that public transport is problematic between those two locations.
  1. [12]
    To date, the applicant has been able to maintain his current position at his place of employment by relying on public transport and lifts from co-workers. As I’ve indicated already however, he has been offered the position as general manager with the company. Mr Gundrill has indicated however, in his affidavit, that the new position is conditional on the applicant obtaining a drivers licence in order to enable him to facilitate interaction with other companies and customers. In Johnson v DPP (2009) QDC 300, his Honour, Judge Irwin, at page 17 discussed inconvenience as a consequence of disqualification, and also the possible loss of employment for not holding a driver’s licence. His Honour said: “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 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 him – from he not holding a driver’s licence.”
  1. [13]
    Judge Irwin also considered the case of Burton and the Commissioner of Police (1990) 10 MVR 329 where he said: “it is in the interest of the community that this young man – [indistinct] to only 31 years of age – be able to continue a law abiding self-sufficient lifestyle and not become a further burden on the public purse. He can best do that if he’s able to retain his employment and provide for his wife and family.”
  1. [14]
    Similarly, the question of whether the Court should assist an offender in resuming his or her place in society with ordinary privileges, such as the holding of a driver’s licence, was discussed in the case of Kennedy and the Queensland Police Service (2009) QDC 181 where his Honour, Judge Robin QC said: “the ability to drive in modern conditions in our society is extremely important. In my opinion, the proper approach to section 131 subsection (2) in particular, is that the courts ought to be open to assisting an offender to resume a place in society with the ordinary privileges most of us enjoy, and, indeed, need.” His Honour went on shortly thereafter to say: “of course, an application under the provision is only likely to succeed where the character of the applicant warrants it.
  1. [15]
    The purpose of the disqualification is no doubt based in safety, punishment and deterrence considerations. It has been submitted that the applicant has experienced the effect of this disqualification for almost, now, two and a-half years. And given the circumstances of his offending that that period of time accords with community expectations as being an appropriate amount of time to be without a licence. In my view the applicant has demonstrated that since his appearance before the District Court at Southport in March of 2013 that he has continued to rehabilitate, to change his life, to ensure that he does not fall victim to drug abuse again, and to take all steps that are available to him to further what would appear to be a promising career, and to enable him to become a good father to his child.
  1. [16]
    I note also, that the original offending conduct, in so far as it related to driving is concerned, did not involve offences that had elements of negligence or danger to others, or recklessness involved in them. That is, in my view, a particularly relevant consideration as I am not dealing with a matter where the applicant’s attitude towards the safety of either himself or other road users has been, or was, at any stage, an issue. In all the circumstances, I’m satisfied that the elements of section 131 subsection (2)(c) have been satisfied and that this is an appropriate matter in which the Court should exercise its discretion and remove the disqualification of the applicant’s driver’s licence ordered on the 7th of March 2013.
Close

Editorial Notes

  • Published Case Name:

    Wyman v Commissioner of Police

  • Shortened Case Name:

    Wyman v Commissioner of Police

  • MNC:

    [2015] QDC 231

  • Court:

    QDC

  • Judge(s):

    Farr DCJ

  • Date:

    27 Aug 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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