Vasey-Frankland v Commissioner of the Queensland Police Service
[2017] QDC 232
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- Vasey-Frankland v Commissioner of the Queensland Police Service[2017] QDC 232
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Vasey-Frankland v Commissioner of the Queensland Police Service[2017] QDC 232
Vasey-Frankland v Commissioner of the Queensland Police Service[2017] QDC 232
DISTRICT COURT OF QUEENSLAND
CITATION: | Vasey-Frankland v Commissioner of the Queensland Police Service [2017] QDC 232 |
PARTIES: | ROBERT LIAM VASEY-FRANKLAND (applicant) v COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 105/2017 |
DIVISION: | Criminal |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Beenleigh |
DELIVERED ON: | 15 September 2017 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 21 August 2017, 25 August 2017 |
JUDGE: | Chowdhury DCJ |
ORDER: | Application refused. |
CATCHWORDS: | DRIVERS LICENCE – Absolute disqualification – Dangerous operation of a vehicle – Application to remove disqualification |
COUNSEL: | The applicant appeared on his own behalf G Churchill for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Queensland Police Service for the respondent |
- [1]The applicant applies for the removal of an absolute disqualification to hold or obtain a driver’s licence pursuant to s 131(2) Transport Operations (Road Use Management) Act 1995 (the “Act”), by way of a written application filed in the court on 10 July 2017.
- [2]On 22 February 2013, his Honour Judge Dearden in the District Court at Beenleigh sentenced the applicant to 2½ years imprisonment for two counts of dangerous operation of a vehicle with prior convictions. His Honour ordered that the applicant be disqualified absolutely from holding or obtaining a driver’s licence.
The relevant legislation
- [3]Relevantly, s 131(2) of the Act states as follows:
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 2 years, may, at any time after the expiration of 2 years from the start of the disqualification period, apply for the disqualification to be removed.”
- [4]Section 131(2C) of the Act states as follows:
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.”
- [5]If an application is refused, a further application shall not be considered by the court if it is made within one year after the date of the refusal of the application: s 131(2D) of the Act.
- [6]As the application has been made more than two years after the disqualification was ordered, the applicant is entitled to make the application.
Relevant principles
- [7]In Slivo v Commissioner of Police [2016] QDC 66, his Honour Judge Farr SC observed that s 131 of the Act does not create a right for an applicant to have a disqualification removed; it bestows upon a court a discretion to make such an order. His Honour said this at para [9]:
“Ultimately the court must be satisfied, on the balance of probabilities, that it is appropriate to dispense with the original judicial officer’s finding that a disqualification was appropriate. The onus of proof is upon the applicant to demonstrate that it is proper to remove the disqualification. If the applicant cannot satisfy the court that it is proper to do so, the application ought be refused.”
- [8]In Johnson v DPP (Qld) [2009] QDC 300, his Honour Judge Irwin at page 17 of the judgment said this:
“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 is 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 his not holding a driver's licence.”
- [9]In Tabakovic v Commissioner of Police [2009] QDC 191, his Honour Judge Robin QC observed that:
“…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.”
His Honour observed that when an applicant has served a period of imprisonment during the disqualification period, then the disqualification has no actual effect until the offender was back in the community.
- [10]In Morgan v Commissioner of Police [2007] QDC 010, his Honour Judge Newton referred to the following observations of Sachs LJ in R v Shirley [1969] 1 WLR 1357 at 1358:
“Long periods of disqualification from driving may prove a very severe handicap to a man when he comes out of prison and desires to pursue a different type of life to that which has led him into that prison. Such periods of disqualification may shut out a large sector of employment, especially in certain areas. Moreover, if the length of disqualification is overlong, and amounts to a period such as a decade, the position may well seem hopeless to the man – and that of itself sows the seeds of an incentive to disregard the law on this point. However wrong such an attitude may be, it springs from a human factor which it is wise to take into account.”
- [11]After referring to the quote, his Honour Judge Newton said this at para [31] of his judgment:
“Ultimately, however, a judgement is required which, in a particular case, balances the interests of the applicant in having his or her licence restored with those of the community in not prematurely sanctioning the right of an offender to resume driving after committing a serious criminal offence which placed in jeopardy the safety of members of that community.”
The applicant’s criminal history and traffic history
- [12]The applicant’s criminal history and traffic history are exhibits to the affidavit of Mark O'Brien, filed on 16 August 2017. He has the following relevant convictions:
- (a)Unlawful possession of a motor vehicle in the Beenleigh Magistrates Court on 19 November 2003. Fined $450, no conviction recorded.
- (b)Dangerous operation of a vehicle in the Beenleigh Magistrates Court on 16 May 2006. Fined $840, no conviction recorded.
- (c)Dangerous operation of a vehicle, unlawful use of a motor vehicle, three charges of failure to stop motor vehicle, breach of bail condition and breach of intensive correction order in the Beenleigh Drug Court on 17 November 2009. Placed on an intensive drug rehabilitation order, and ordered to perform 100 hours of community service. Convictions recorded. Disqualified from driving for 6 months.
- (d)Three counts of unlawful possession of motor vehicles in the Beenleigh Drug Court on 15 January 2010. Intensive drug rehabilitation order made, sentenced to six months imprisonment wholly suspended for Drug Court order. Convictions recorded.
- (e)Enter premises and commit an indictable offence, enter premises with intent to commit an indictable offence, attempted unlawful use of a motor vehicle, unlawful use of a motor vehicle, dangerous operation of a vehicle with excessive speeding, dangerous operation of a vehicle with a prior conviction in the Beenleigh District Court on 20 May 2011. In total sentenced to 13 months imprisonment to be suspended for 20 months, cumulative upon existing terms of imprisonment. Disqualification period of licence 6 months.
- (f)Two counts of dangerous operation of a vehicle with a prior conviction, production of dangerous drug – Schedule 1, going armed so as to cause fear and other offences on 22 February 2013 in the Beenleigh District Court. Sentenced to a total of 2½ years imprisonment, disqualified absolutely from holding or obtaining a driver’s licence.
- (g)Grievous bodily harm in the Brisbane District Court on 31 October 2014. Sentenced to 18 months imprisonment, with parole eligibility date on 1 July 2015.
- [13]The traffic history is extensive, running to 16 pages, although there is an overlap with some of the entries on the traffic history with entries on the criminal history, especially in relation to the dangerous driving convictions. Relevantly, the following convictions appear:
- (i)Two charges of unlicensed driving in the Beenleigh Magistrates Court on 14 October 2004.
- (ii)Disqualified driving in the Beenleigh Magistrates Court on 6 January 2006, convicted and disqualified from driving or obtaining a licence for two years.
- (iii)Disqualified driving in the Holland Park Magistrates Court on 14 June 2006, disqualified for two years and imprisoned for three months.
- (iv)Two counts of disqualified driving in the Richlands Magistrates Court on 22 January 2009. Disqualified for two years.
- (v)Two charges of unlicensed driving and exceeding the speed limit by more than 30 km/hour but not more than 40 km/hour in the Richlands Magistrates Court on 22 January 2009.
- (vi)6 counts of unlicensed driving and 1 count of disqualified driving in the Beenleigh Magistrates Court on 17 November 2009.
- (vii)Disqualified driving, dealt with by the Beenleigh District Court on 20 May 2011.
- (viii)Three charges of disqualified driving dealt with by the Beenleigh District Court on 20 May 2011. Disqualified for two years.
- (ix)Seven charges of disqualified driving in the Beenleigh District Court on 22 February 2013. Convicted and not further punished, and disqualified for five years.
Circumstances of the offending that led to the absolute disqualification
- [14]On 1 January 2012, police attempted to intercept the applicant who was driving a Nissan 200SX, for a licence check. Police activated their emergency lights and siren. The applicant pulled over initially, but then took off at high speed. He continued to drive away from the police, weaving in and out of traffic, including driving on the wrong side of the road at high speed. Police discontinued the pursuit of the applicant due to the dangerous circumstances.
- [15]On 30 January 2012, police identified the Nissan 200SX as a vehicle of interest while conducting mobile patrols. Police followed the applicant at a distance before noticing the Nissan speed up and drive away in excess of 90 km/hour in a 60 km/hour zone. The applicant slowed up behind traffic as he came to an intersection where the light was red. He then pulled into the vacant turning lane and drove through the red light, causing other vehicles to brake heavily to avoid a collision. Police followed the applicant and activated the emergency lights and siren. The applicant failed to stop and continued through the red light. Police abandoned the pursuit due to its dangerous circumstances.
- [16]During his sentencing remarks his Honour Judge Dearden observed that the applicant had a “shocking traffic history” and a “poor criminal history”, further observing that the applicant was going to have to make a massive change of life if he was to stop offending.
Details of earlier dangerous driving offences
- [17]On 7 November 2008 police attempted to intercept the applicant in a vehicle. The police activated their emergency lights and siren. The applicant accelerated away, cutting in and out of traffic while driving at speeds up to 110 km/hour in a 60 km/hour zone. The applicant drove through a roundabout without stopping, almost colliding with other cars. Ultimately the police discontinued the pursuit.
- [18]In respect of the two charges of dangerous driving dealt with by the Beenleigh District Court on 20 May 2011, the first time occurred on 26 July 2010. The applicant accelerated away in a stolen car from a random breath test site. Police pursued the applicant, where he drove in excess of 100 km/hour in 60 km/hour zones. He cut off traffic as he made a right-hand turn and then proceeded to drive toward oncoming traffic, weaving in and out at speeds in excess of 80 km/hour in 40 km/hour zones. Police eventually discontinued the pursuit due to the dangerous circumstances.
- [19]Two days later on 28 July 2010, police followed the applicant after observing he was in a stolen car. The conditions were wet and slippery. The applicant attempted to make an illegal U-turn when he saw the police car. The applicant reversed his car and then drove down another street on the wrong side of the road, causing an oncoming car to take evasive action. The applicant then overtook approximately five other vehicles, travelling in excess of 80 km/hour in a 60 km/hour zone. Again, police discontinued the pursuit due to the dangerous circumstances.
Offence of grievous bodily harm
- [20]The applicant was released on parole in respect of the sentences imposed by his Honour Judge Dearden on 22 February 2013 on 8 April 2013.
- [21]On 21 April 2013, the applicant was at a nightclub in the Fortitude Valley. He was involved in an argument between some other persons and a friend of the complainant. The complainant’s friend attempted to punch one of the other men and then was restrained by security. At the same time, the applicant punched the complainant in the head, causing a broken jaw and knocking out a tooth. He was sentenced in the Brisbane District Court on 31 October 2014 to 18 months imprisonment, to commence from the end of the terms of imprisonment imposed on 22 February 2013, with a parole eligibility date of 1 July 2015.
Chronology of applicant’s time in the community
- [22]For the purposes of this application, the following chronology is relevant:
22 February 2013 -Applicant disqualified absolutely from holding or obtaining a driver’s licence by his Honour Judge Dearden.
1 May 2013 -Return to prison for a breach of parole as a result of being charged with grievous bodily harm.
31 October 2014 -Sentenced to 18 months imprisonment in the District Court at Brisbane for grievous bodily harm.
16 February 2016 -Released from prison, and immediately taken into immigration detention.
17 May 2016 -Deported from Australia to the United Kingdom. [Applicant had a driver’s licence while in the United Kingdom].
13 May 2017 -Applicant returned to Brisbane.
- [23]As the respondent has submitted, the applicant has been in the general community for about 18 months during the period that the disqualification order has been in place.
Applicant’s argument for removing the absolute disqualification
- [24]In an affidavit sworn on 8 July 2017, the applicant expresses the clear desire to put his offending behind him, and to be a law-abiding citizen. He stated that he had possible employment in a business position which would heavily rely on having a driver’s licence. The applicant states that over the last five years he has “grown up and matured a lot”, and that not being able to have a licence has a detrimental impact on him obtaining employment, and dealing with day-to-day activities such as transporting children to school, visiting doctors and other such activities. The applicant states that his younger brother is a “high level quadriplegic that requires 24-hour care”, and that having a driver’s licence would greatly assist his brother and his mother to pick up medication and to run household errands, and in case of an emergency to be able to drive his brother to hospital.
- [25]On behalf of the applicant, an affidavit was sworn by Daniel Russel on 8 July 2017. Mr Russel deposes that there is an opportunity for the applicant to join his business at Advantage Plus Concreting, provided that he had a driver’s licence and was able to drive to and from job sites, and pick up supplies when required. Mr Russell deposed that the applicant had worked for him in the past, and he was confident that the applicant would again be a hard-working and positive employee.
- [26]On the first hearing of this matter on 21 August 2017, the applicant stated that he now had employment as a bricklayer with another employer. A number of matters were raised by the applicant which were not supported by documentation, and therefore the hearing was adjourned to 25 August 2017 to allow the applicant to provide such further materials as he wished.
- [27]On the resumption of the hearing, the applicant tendered a copy of a letter from Reece Godfrey, dated 21 August 2017, which stated that the applicant had commenced work with him on 31 July 2017 as a bricklayer’s labourer. As the applicant had no licence, Mr Godfrey was collecting him from his home and dropping him off every day; Mr Godfrey said he was happy to do that at present as the applicant “has turned out to be an exceptionally reliable hard worker, but in saying that it takes an extra hour to an hour and a half of my time to do this.”
- [28]Mr Godfrey went on to state that he has taken on work at an estate of 250 houses with a building company, and that he required employees who could get themselves to and from work with their own transport.
- [29]The applicant, at length, discussed the efforts he has made to improve himself, and to turn away from his former offending past. In particular, the following certificates were tendered at the resumed hearing in support of this:
- Certificate of attendance at the Pathways Program Phase 1 and 2.
- Transcript of academic record for a Diploma of Management with Evocca College.
- A letter from Mr Brett Norden of Briston Training and Development confirming that the applicant had recently completed the diploma of management offered by Briston Training and Development and Evocca College.
- Certificate of completion of a basic health and fitness course.
- A letter from Uniting Care confirming that the applicant had attended the “Stepping Forward Seminar” at Woodford Correctional Centre on 6 March 2015 and 13 March 2015, and that the applicant engaged well with the content and was able to model positive behaviour to other members of the group.
- A statement of attainment from Wynnum Manly Employment and Training that the applicant had obtained a competency in work safety in the construction industry.
- A police certificate for immigration purposes from the United Kingdom National Police Chief’s Council, which indicates that his last court conviction was for grievous bodily harm in the Brisbane District Court on 31 October 2014.
- [30]At both occasions of the hearing, the applicant emphasised that there had been no further offending since April 2013, and that his opportunities to obtain regular employment to a large degree depended on him having a licence.
Argument of the respondent
- [31]The respondent submits that the two offences of dangerous operation of a vehicle with circumstances of aggravation for which the applicant had his driver’s licence disqualified absolutely were bad examples of the offence. They were similar in nature to the earlier offences of dangerous operation of a motor vehicle, and involved the applicant attempting to evade police in a dangerous manner, in a built-up area where there were numerous other road users. Significant danger was posed to a large number of other persons, and on each occasion police were required to discontinue the pursuit of the applicant due to the danger posed to the public.
- [32]The respondent submits that the commission of the offence of grievous bodily harm is a matter that should be given some weight, as it is a serious offence and was committed only 13 days after his release on parole from prison for the offences dealt with by his Honour Judge Dearden on 22 February 2013.
- [33]It is further submitted that the actual period that the applicant has been without a driver’s licence has been only about 18 months. It is submitted that the applicant can have no serious complaint about being deprived of a licence when he was serving sentences of imprisonment, and it seems that when he was in the United Kingdom he had a driver’s licence.
- [34]Ultimately, it is submitted that due to the serious criminal history of the applicant, especially in respect of offences of dangerous operation of a motor vehicle, and his bad traffic history, that there has simply been insufficient time to demonstrate that the character of the applicant has changed, and that his conduct has been so significant to justify the removal of the absolute disqualification.
Conclusions
- [35]There is much to be said in the applicant’s favour, in particular the efforts he has made to do numerous courses while in custody and in the community, and his clear capacity to be a hardworking employee. The applicant deserves to be commended for this. However this needs to be balanced by the nature of the offences that led an experienced District Court Judge to make an order for absolute disqualification. It is also highly relevant to consider that when released on parole for the offences including the two dangerous operation of a vehicle offences, dealt with by his Honour Judge Dearden, he committed the further serious offence of grievous bodily harm while on parole.
- [36]As I explained to the applicant during the course of the hearing, I fully accept that in this modern age it is extremely limiting for an adult person not to be able to drive a motor vehicle. The lack of reliable public transport in many suburban areas, the reality that many jobs require an employee to have a driver’s licence, and the fact that most people need a car highlight this point. It has been said on many occasions by courts that the holding of a driver’s licence is a privilege, not a right. All that is required to maintain that privilege is to abide by the traffic laws.
- [37]In my view, the seriousness of the dangerous operation offences committed by the applicant for which the absolute disqualification was imposed, coupled with the rest of his criminal history and importantly his traffic history, outweigh the commendable efforts made by the applicant to better himself. There has simply been an insufficient effluxion of time to allow a proper balance to tilt in the favour of the applicant having his licence restored, as against the right of the community not to be placed in jeopardy by the dangerous actions of an offender who has had so little regard to the safety of others.
- [38]In all of the circumstances, the application is refused.