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Hopper v Commissioner of Queensland Police[2016] QDC 210

Hopper v Commissioner of Queensland Police[2016] QDC 210

DISTRICT COURT OF QUEENSLAND

CITATION:

Hopper v Commissioner of Queensland Police [2016] QDC 210

PARTIES:

HOPPER, Benjamin Lloyd

(applicant)

v

THE COMMISSIONER OF QUEENSLAND POLICE
(respondent)

FILE NO/S:

D 85 of 2016

DIVISION:

Criminal

PROCEEDING:

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

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

12 August 2016 (ex tempore)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

12 August 2016

JUDGE:

Long SC DCJ

ORDER:

The absolute disqualification from holding or obtaining a driver’s licence, imposed on the Applicant on 15 June 2011, is removed, as from 12 August 2016.

CATCHWORDS:

APPLICATION – s 131 of the Transport Operations Road Use Management Act 1995 – Where on 15 June 2011 and as part of the sentence of the applicant for the offence of dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance and excessively speeding, 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 the applicant has not driven nor reoffended in any way since the date of sentence – Where the absence of a driver’s licence is placing a limitation on the applicant’s reintegration into the community – Where the applicant relies on his employer, fellow employees and mother for transport to and from various worksites – Where there is a prospect that the applicant could take on more responsibility and earnings at work, if the disqualification is removed – Whether it would be a proper exercise of judicial discretion, to remove the applicant’s disqualification

COUNSEL:

The applicant appeared on his own behalf

J Maccarone for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Commissioner of Queensland Police for the respondent

HIS HONOUR: This matter relates to an application for removal an absolute driver’s licence disqualification, pursuant to s 131(2) of the Transport Operations Road Use Management Act 1995 (‘TORUM’).

That application was filed on 29 June 2016. The disqualification was imposed on 15 June 2011 in the District Court at Bundaberg and as part of the sentence of the applicant for the offence of dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance and excessively speeding. The disqualification was imposed in conjunction with orders that the applicant be imprisoned for 8 years, with parole eligibility fixed at 3 years.

The applicant, unsuccessfully, sought leave to appeal against that sentence and the application was refused on 21 October 2011 (see: R v Hopper [2011] QCA 296). From that judgment, it may be discerned that no complaint was raised as to the absolute disqualification and the reason for that is apparent, when regard is had to the level of culpability of the applicant’s offending conduct, as that is summarised at paragraphs 3 to 6 of that judgment, and which, it was noted, was particularly characterised by the sentencing judge, as involving circumstances that:

  1. (a)
    you had consumed a large quantity of alcohol;
  2. (b)
    you had a night driving restriction on your licence because of your traffic history…; and
  3. (c)
    [y]ou deliberately drove at an excessive speed, even when asked to slow down on several occasions, thus acting in a reckless and callous manner with complete indifference to the safety of your passengers.

It was further noted that the sentencing judge had, whilst noting the aspects of youth and timely guilty plea, otherwise observed that:

While you have a criminal history it is not significant, but it is symptomatic of your contempt for authority and your obligations under the law … demonstrating an absence of any commitment to rehabilitation or reform. Simply your traffic history is symptomatic of your absence of remorse by persistent offending, albeit of a minor nature at times.

In that judgment, the criminal and traffic histories were summarised, as follows:

[7]  The applicant had a relatively minor criminal history. He had committed a public nuisance on three occasions on each of which he was fined a small sum. He was found in possession of cannabis for which he was put on a good behaviour bond which he breached by a further offence of public nuisance. He was dealt with for those offences collectively by a period of six months’ probation which he completed satisfactorily on 15 February 2009.

[8]  The applicant’s traffic history is more relevant. There is an entry for careless driving in March 2008, one for driving whilst under the influence of liquor in June 2008 and another for driving at a speed more than 20 kmph in excess of the limit in April 2009. On two occasions the applicant’s driver licence was suspended by reason of an accumulation of demerit points. On 17 May 2010 the applicant’s licence was restricted by an order prohibiting him from driving between 11.00 pm and 5.00 am. On one occasion prior to 24 July 2010 he drove in defiance of the restriction which was in effect when the applicant committed the present offence.

The applicant was born on 13 October 1989 and was therefore, 20 when he offended, 21 when sentenced and is now approaching 27 years of age. The application is based on materials that present a different picture as to the applicant’s behaviour and attitudes since he was sentenced:

  1. (a)
    he served 3 years imprisonment before being released on parole, and it is confirmed that his compliance with and performance under the parole order has been regarded as good and without blemish;
  2. (b)
    he has not driven since the date of sentence nor reoffended in any way. In fact, his last offence occurred on 24 July 2010;
  3. (c)
    he is single and lives with his mother in Caloundra. It is noted that, apart from contributing to household expenses, he provides support for his mother, who is now aged 60, and whose capacity to work as a nurse in aged care is now limited to part-time and becoming more limited due to the ongoing progression of rheumatoid arthritis;
  4. (d)
    since mid 2015, he has been employed as a roofer by Total Roofing and Plumbing Pty Ltd, which is a business based at Coolum Beach and, in that capacity, is required to work at various site locations in South East Queensland. His usual work hours are for 10 hours daily, between 6 and 5:15pm, Monday to Friday and also, on occasions, on weekends; and
  5. (e)
    he deposes to having to live with the consequences of his offending and, particularly, the death of a close friend and the ramifications, generally, of that type of conduct and that he has sought, since his release from custody, to lead a healthy lifestyle, in which drugs and alcohol do not feature; and
  6. (f)
    in addition, it can be noted that on 12 July 2016, he attended a safe driving awareness presentation by Road Services Queensland.

The application, as it is supported by both the applicant’s mother and employer, in that context of this history of good behaviour over the last 5 to 6 years, is particularly premised upon the limitations that the absence of a driver’s licence is placing on the progression of the applicant’s reintegration into the community and, most particularly, in terms of his reliance upon his employer, fellow employees and mother for transport to and from various worksites. In that context, the unavailability of public transport as an option, due to his working hours and particularly, the variability of worksites, is also pointed out.

The applicant’s reliability and regard that is held, in respect of his work performance, is attested by his employer, as is the prospect of his taking on more responsibility and more earnings, with an ability to drive an available work truck and the capacity to be sent, unaccompanied, to job sites, particularly, away from the Sunshine Coast area.

Pursuant to s 131(2C) of TORUM, a power is given to this Court to remove such a disqualification as from such a date as may be specified in the order or to refuse the application. The power is in the nature of a discretion and 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 and the nature of the offence and any other circumstances of the case.

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. Except that he remains on parole and, subject to this disqualification, 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 any continuing risk that the applicant presents to it.

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.

Essentially, this application is made with a view to facilitating the applicant’s continued rehabilitation and reintegration into the community and it is, obviously, in the general interest of the community that such rehabilitation and reintegration be appropriately facilitated. Consideration must also be given to the community interest in the safety of all road users and therefore, there is a need for satisfaction that the applicant is prepared to conduct himself with due regard to such community expectations and also, that the purposes of punishment, denunciation and deterrence inherent in the original sentence are, nevertheless, met and not compromised by acceptance of the application.

Whilst it may be recognised that for the first 3 years of the expired period of the disqualification, the applicant was incarcerated and therefore, not, in that sense, deprived of the ability to drive in the community. It should also be recognised that the disqualification was imposed in combination with the incarceration and for the same offending and that the applicant has now spent a period in excess of 2 years in the community under that deprivation and on the parole order, which will continue until 14 June 2019.

The respondent neither opposes nor supports the application and the materials before the Court, as have been noted, support the conclusion that, notwithstanding the concerning nature of the applicant’s offending, he is now a more mature person who has demonstrated some insight into his past offending behaviours and some appreciation of and capacity for, positive contribution to the community, and that an exercise of discretion to now remove the disqualification is both proper and appropriate to the facilitation of the public interest in his ongoing rehabilitation and continued reintegration into the community, and the purposes for which he was sentenced on 15 June 2011.

The order of the Court is that the absolute disqualification from holding or obtaining a driver’s licence, imposed on the Applicant on 15 June 2011, is removed, as from 12 August 2016.

Close

Editorial Notes

  • Published Case Name:

    Benjamin Lloyd Hopper v Commissioner of Queensland Police

  • Shortened Case Name:

    Hopper v Commissioner of Queensland Police

  • MNC:

    [2016] QDC 210

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    12 Aug 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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