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Hallett v Commissioner of the Queensland Police Service[2016] QDC 209

Hallett v Commissioner of the Queensland Police Service[2016] QDC 209

DISTRICT COURT OF QUEENSLAND

 

 

CITATION:

Hallett v Commissioner of the Queensland Police Service [2016] QDC 209

PARTIES:

HALLETT, Robert Glen

(applicant)

v

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(respondent)

FILE NO:

D 45 of 2013

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 131 of the Transport Operations Road Use Management Act 1995

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

13 May 2016 (ex tempore)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

13 May 2016

JUDGE:

Long SC DCJ

ORDER:

Application dismissed.

CATCHWORDS:

APPLICATION – s 131 of the Transport Operations Road Use Management Act 1995 – Where on 23 December 2008 and as part of the applicant’s sentence for an offence of dangerous operation of a motor vehicle causing death while adversely affected by drugs, the applicant was absolutely disqualified from holding or obtaining a driver’s licence – Where the applicant now seeks the removal of such a disqualification pursuant to s 131(2) of the Transport Operations Road Use Management Act 1995 – Where there was not a breach-free history of the applicant’s progress on parole or which included abstinence from the consumption of alcohol – Whether it would be a proper exercise of judicial discretion, to remove the applicant’s disqualification

COUNSEL:

The applicant appeared on his own behalf

D Brown for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Commissioner of the Queensland Police Service for the respondent

 

 

 

HIS HONOUR:   This matter comes before the Court today, upon a re-listing pursuant to an order made on the 13th of December 2013.  On that date, I ordered that the application filed on 2 April 2013, for an order pursuant to s 131 of the Transport Operations Road Use Management Act 1995 (TORUM), to remove the order made on 23 December 2008 and as part of the applicant’s sentence for an offence of dangerous operation of a motor vehicle causing the death of his father whilst adversely affected by drugs and that he be absolutely disqualified from holding or obtaining a driver’s licence. 

 

As was then noted that, pursuant to s 131(2)(c) of TORUM, a discretion is reposed in this Court to remove the disqualification, as from such a date as may be specified in the order, or refuse the application.  That discretion is to be exercised 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.

 

It was then also further noted, as follows:

 

On 23 December 2008, the applicant was sentenced for an offence of dangerous operation of a motor vehicle causing the death of his father whilst adversely affected by drugs to a term of 7 years imprisonment with a parole eligibility date fixed after serving 2 years and 4 months at 23 April 2011.  It was noted that at the time that this offence occurred, the applicant was unlicensed to drive a motor vehicle. The applicant was born on 26 July 1958 and he is now, therefore, 55 years of age.  He was released to parole on 6 June 2011 and has, therefore, been on parole in the community for the last 2 and a-half years, after serving a similar period in custody and has a further period of approximately 2 years left in his parole period. 

 

Essentially, the application is made with a view to facilitating the applicant’s continued rehabilitation and reintegration into the community and the applicant particularly points to his now being in a stable relationship, having employment as a bricklayer, which would be assisted by his having a driver’s licence in order to make his own way to job sites and his present inability to assist his 83 year old mother by driving her at times that she needs assistance.  Essentially, and having regard to the circumstances that are before the Court, the respondent remains opposed to the application.

 

Further and in respect of an exercise of discretion under s 131 of TORUM, I then observed,

 

In considering whether it is thought proper to remove the disqualification, it can first be noted that the original order was made as part of a sentence imposed on the applicant and, in this case, that can be seen to have been particularly reflective of the purposes of punishing the applicant and making clear the denunciation of his conduct, but also to provide for the necessary elements of deterrence and protection of the community from the applicant’s offending.  At this stage, it can be noted that the conjunctive elements of the applicant’s punishment have been substantially completed and that the feature which most relevantly remains is the purpose of the protection of the community from the continuing risk that the applicant presents to it.  In that regard, it is also important to note that the remaining purpose for which sentences may be imposed, under s 9 of the Penalties and Sentences Act 1992, is to provide conditions that are considered will help an offender to be rehabilitated. 

 

Whilst it may be concluded that the applicant’s progress and his rehabilitative endeavours would be enhanced by the removal of the disqualification, the need to have regard to the protective function of the order remains and, unfortunately, is not overcome by the absence of a breach-free progress on parole.  The most recent blemish marks what might have otherwise been regarded as such a period.  It was rightly treated as a minor breach within the parole regime, but having regard to the applicant’s history, experience demands that he both strives for and attains complete abstinence from drug and alcohol consumption and, accordingly, it remains premature and not proper that the disqualification be removed.

 

Therefore and in the context of noting that the most evident remaining purpose of the applicant’s sentence was community protection and that there was not a breach-free history of the applicant’s progress on parole, including in respect of abstinence from the consumption of alcohol, at least, it was determined that the applicant had not then satisfied the onus of satisfying the Court that it would be a proper exercise of discretion to make the order he sought.  Instead and noting the otherwise largely satisfactory progress made on parole, the parties agreed to the option proposed by the Court of providing the applicant with the prospect of bringing the matter back before the Court, earlier than might otherwise have been the case, if the application had been refused and he was precluded for 12 months by s 131(2)(d) of TORUM from making any further application. 

 

Accordingly, the following directions were made:

  1. (1)
    Not before 30 June 2014, the applicant has leave to file and serve a further affidavit updating his application and seeking a further hearing date;
  2. (2)
    Upon that affidavit being filed, the registrar is to:
    1. Seek an updated court report; and
    2. Then list this matter for further hearing at an appropriate available time; and
  3. (3)
    The respondent is to file and serve any further outline of submissions and/or materials not later than 7 days before the listed date for further hearing.

 

However, what may have been the expected advantage of these directions has not eventuated.  Rather, the matter has been re-listed on the filing of a very brief affidavit of the applicant and in which the only information supplied in further support of the application is:

 

I have not committed any offence, criminal nor traffic, since 2007.  I have completed my sentence for which this disqualification was ordered.  Having this lifted would be a new outlook for me.

 

Accordingly and in accordance with the directions, there was a further Court Report which I have marked as Exhibit 1, and the respondent has filed further submissions indicating that the respondent remains opposed and, particularly, points to the breaches of parole that have occurred since June 2011 and the extent to which returns to custody, as a consequence, have eroded the period of time that the applicant has spent in the community and therefore, actually deprived of the advantage of a drivers licence. 

 

The updated traffic record and criminal history, which have been marked as Exhibit 2, confirm the applicant’s statements that he has not further offended and some explanation has been provided this morning as to the entries in relation to SPER suspensions in respect of his entitlement to a licence, most recently in March this year and also in 2014 and 2015. 

 

The particular matters which are highlighted in relation to the applicant’s performance on parole involve the testing in October 2011, in a positive way for the drug methylamphetamine, which involved him returning him to custody for a period of 3 months.  And also in May 2012, for breaching conditions, by consuming a small amount of alcohol and entering a licenced premises for which he, again, served some weeks back in custody.  Those were the matters in contemplation in the orders made by the Court at the end of 2013.

 

However and since then and as the Court Report points out, there have been further difficulties.  In March 2014, there was a transfer of Mr Hallett’s supervision from Maroochydore to Caboolture following a reported domestic dispute with his partner.

He was subjected to a urinalysis test on 4 March 2014, with confirmatory results indicating residual levels of amphetamine and methylamphetamine.  Then on the 26th of May 2014, it is recorded that there was a breach of parole in relation to the place at which the applicant was to reside.  The details of that are set out in the Court Report and it indicates that that breach was established by various visits and was met with the result of a suspension of the parole order on 27 May 2014 and the applicant’s return to prison.  He remained there until 14 August 2014, when the suspension order was lifted and he was released to the community.  Further and on 19 March 2015, it is recorded that the applicant provided a presumptive positive test for methylamphetamines and that he became evasive regarding attending for a urine test and, as a result, his order was suspended.  On 10 April 2015, the order was cancelled by the Queensland Parole Board. 

 

Subsequently, the applicant applied for parole and a new parole order was granted, which resulted in him being released on 1 October 2015 and it is noted that the applicant completed that order without further incident and that it had expired on 31st December 2015. 

 

The report fairly notes that whilst there had been two positive urine tests and a positive breath test during the supervision period, the applicant had otherwise provided nine clean urine samples and nine clean breath tests.  The conclusion of the Court Report should be noted:

 

In summary, on a positive note, Mr Hallett was compliant with reporting conditions, intervention attendance and to his credit did not reoffend at all during the entire parole supervision period.  However, he maintained a volatile relationship, continued to use alcohol and illicit substances from time to time and breached numerous technical requirements of his order.  These breaches resulted in three suspensions and eventual cancellation of his original order.  It was considered that at times, Mr Hallett was only engaging superficially in his order requirements.

 

In the circumstances, the needs for which the disqualification was imposed and particularly the protection of the community, remain.  It has not been demonstrated that it is now appropriate to make the order that is sought. 

 

Accordingly, the order is that the application is dismissed.  I note that you have indicated, Ms Brown, that in those circumstances, you do not seek any orders as to costs?

 

MS BROWN:   No, we seek no orders as to costs.

 

HIS HONOUR:   All right.  Mr Hallett, that deals with the matter.  You will need to consider your position.  You will need to consider when and if you make a further application, in the future.

 

DEFENDANT:   All right.

 

HIS HONOUR:   All right.  Thank you, Ms Brown.

 

MS BROWN:   Thank you.  If I could be excused.  Good morning.

 

 

______________________

 

Close

Editorial Notes

  • Published Case Name:

    Hallett v Commissioner of the Queensland Police Service

  • Shortened Case Name:

    Hallett v Commissioner of the Queensland Police Service

  • MNC:

    [2016] QDC 209

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    13 May 2016

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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