Cash v The Commissioner of Police
[2017] QDC 38
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- Unreported Judgment
- Cash v The Commissioner of Police[2017] QDC 38
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Cash v The Commissioner of Police[2017] QDC 38
Cash v The Commissioner of Police[2017] QDC 38
DISTRICT COURT OF QUEENSLAND
CITATION: | Cash v The Commissioner of Police [2017] QDC 38 |
PARTIES: | PATRICK JOSEPH CASH (applicant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 4825/16 |
DIVISION: | Civil |
PROCEEDING: | Application for removal of licence disqualification |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 2 March 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 February 2017 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – DANGEROUS DRIVING – dangerous operation of a motor vehicle – driving whilst adversely affected by an intoxicating substance namely alcohol TRAFFIC LAW – LICENSING OF DRIVERS – QUEENSLAND – DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES – Section 131 of the Transport Operations (Road Use Management) Act 1995 – where the applicant was disqualified from holding or obtaining a driver licence for a cumulative total of four years – where the applicant made an application pursuant to s 131(2) of the Transport Operations (Road Use Management) Act 1995 for an order that the disqualification of his driver licence be removed – where the applicant and his employer would benefit from the applicant obtaining a driver licence – where the applicant has made a genuine commitment to rehabilitation – where the applicant has been of good character since disqualification and has complied strictly with sentences imposed – whether the application should be granted Transport Operations (Road Use Management) Act 1995, ss 90A, 90C, 131(2), 131(2AA), 131(2C), 131(2D) Criminal Code 1899, ss 328A(1) and (4), 651 Lolagis v Chief Executive Officer, Queensland Transport [2002] QDC 162 Project Blue Sky Inc. v The Australian Broadcasting Authority (1998) 194 CLR 355 Sebille v Dempsey [2009] QDC 58 Tabakovic v The Commissioner of Police [2009] QDC 191 |
COUNSEL: | P Saggers (sol) for the applicant M A Johnston (sol) for the respondent |
SOLICITORS: | Howden Saggers for the applicant Queensland Police Service Legal Unit for the respondent |
Introduction
- [2]The applicant, pursuant to s. 131(2) of the Transport Operations (Road Use Management) Act 1995 (TORUMA), seeks the removal of disqualifications imposed by Judge O'Brien (as the Chief Judge then was) in the Brisbane District Court on 10 October 2014.
Background
- [3]The applicant appeared in the Brisbane District Court on 10 October 2014 and pleaded guilty to a 14 count indictment, as well as 10 summary offences transmitted to the District Court under the Criminal Code 1899, s 651. The indictable offences were as follows:-
- 6 x dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance (counts 1-3, 5-7);
- stealing (count 4);
- 3 x common assault (counts 8, 9 & 11);
- 2 x wilful damage (counts 10 & 12);
- armed robbery (count 13); and
- attempted unlawful use of a motor vehicle (count 14).
- [4]The applicant’s summary charges were:-
- 2 x drive while disqualified;
- 2 x drive under the influence of liquor;
- 2 x commit public nuisance;
- 1 x fail to stop motor vehicle;
- 1 x fail to comply with duties of the driver involved in a crash;
- 1 x drunk or disorderly on licenced premises;
- 1 x fail to leave licenced premises.
- [5]Relevantly, the applicant was disqualified by the Chief Judge from holding or obtaining a driver licence for a period of two years in respect of each of the counts of dangerous operation of a motor vehicle, driving whilst disqualified, driving under the influence of liquor and failing to stop a motor vehicle.
- [6]Given the nature of the driving offences,[1]and an earlier court imposed driver licence disqualification,[2]TORUMA s. 90C(1), (2) & (3) applies to “the periods of disqualification for the drink driving disqualification”. In respect of this applicant, “drink driving disqualification” is defined by TORUMA s. 90C(1)(b) as a disqualification arising from being charged with a “designated offence”, which in turn is defined by s. 90A to include:
“(a) an offence against –
…
(ii) section 79(1) …” and
…
“(b) a dangerous driving offence”.
In turn, a “dangerous driving offence” is defined by s. 90A as “an offence against the Criminal Code, s. 328A(1) or (4) if the offence is accompanied by a circumstance of aggravation that, at the time of committing the offence, the person charged with the offence was adversely affected by an intoxicating substance.”
- [7]The practical effect of the disqualifications imposed in the District Court on 10 October 2014 was that the applicant was disqualified from holding or obtaining a Queensland driver licence for a period of four years from that date (i.e. 10 October 2014 to 9 October 2018). This period is specifically identified in the applicant’s traffic record in these terms:-
“Cumulative disqualification period from: 10/10/2014 to 09/10/2018”.[3]
Applicable law
- [8]The application proceeds under TORUMA s. 131(2) which provides:
“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 two years, may, at any time after the expiration of two years from the start of the disqualification period, apply for the disqualification to be removed.”
- [9]TORUMA s. 131(2AA) relevantly provides that:
“The application for the disqualification to be removed must be made to –
…
(b) if the disqualification was ordered by a judge of the District Court – a Judge of the District Court”.
- [10]TORUMA s. 131(2C) provides:
“Upon hearing any such application the judge of the … District 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.”
If the application is refused, no further application can be made within a year after the date of refusal.[4]
- [11]As Robin QC, DCJ observed in Tabakovic v The Commissioner of Police [2009] QDC 191, TORUMA s. 131(2) exists to serve:
“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.”
- [12]It is clear that the date on which the removal order is effective may not necessarily be the date the order is made.[5]
Preliminary issue
- [13]Ms Johnston for the respondent submits that the cumulative disqualification period effected by the sentence on 10 October 2014 (a total of 4 years) was a result of the cumulation of periods of disqualification for the drink driving offences[6]and the unlicensed driving offences, but arrived at by individual periods of two years for each set of offences. She submits that the clear legislative intent of TORUMA s. 90C (and related sections) was to require persons committing multiple high risk driving offences, while subject to multiple licence disqualifications, to serve not only a mandated minimum disqualification period but to serve out, in turn, each disqualification period. She submits that the disqualifications imposed should be considered as separate and distinct disqualifications (i.e. two years plus two years), which would then preclude any application pursuant to TORUMA s. 131(2) (which relevantly provides that the application may only be brought by a person who has been disqualified “absolutely or for a period of more than two years”).
- [14]As the High Court indicated in Project Blue Sky Inc. v The Australian Broadcasting Authority (1998) 194 CLR 355, “the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”.[7]Further, their Honours observed that “a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect for purpose and language of those provisions while maintaining the unity of all the statutory provisions.”[8]
- [15]In the context of the application before me, TORUMA s. 90C(3) provides that “the periods of disqualification for the drink driving disqualification and the unlicensed disqualification period take effect cumulatively with each other”, and further at s. 90C(5) “each period of disqualification, whether for a drink driving disqualification, an unlicensed driving disqualification or an existing disqualification, takes effect cumulatively with each other period of disqualification.” (my emphasis)
- [16]This should then be read with the language of TORUMA s. 131(2) which relevantly provides that:
“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 two years … .” (my emphasis)
- [17]With respect, the language of TORUMA s. 90C refers relevantly to either a “period” (TORUMA s. 90C(5)) or “periods” (TORUMA s. 90C(3)), and the process for calculation of the overall period is based on the deeming provisions of TORUMA s. 90C. In that respect, the effective disqualification period is then a period which has been arrived at both by “operation of law” and “an order”[9]and has resulted in the outcome of a disqualification which has operation “for a period of more than two years”.
- [18]In my view, it is clear that a construction that best achieves the objects of TORUMA and is consistent with the language and purpose of the provisions of the statute, is to conclude that any combination of court orders and/or statutory deeming provisions which results in a disqualification period amounting (cumulatively or otherwise) to a period of more than two years, entitles an applicant to apply after two years for the restoration for their driver licenceunder s. 131(2).[10]
- [19]Accordingly, I conclude that the applicant is entitled to proceed with his application to seek the removal of the disqualifications.
Discussion
- [20]The applicant completed effective sentences of two years (for armed robbery) suspended after 95 days with an operational period of two years, and sentences of 95 days imprisonment together with three years’ probation for counts 1-12 and 14 on the indictment, without breaching either the suspended sentence or the probation order. The applicant currently resides with his mother at Northgate, is employed at Caloundra Concrete Pumping, completed the Queensland Traffic Offenders Program on 17 February 2015, has attended upon a psychologist as directed, and even at the date of sentence on 14 October 2014 had already (as the Chief Judge acknowledged) “made significant strides … towards [his] own rehabilitation.”[11]
- [21]I note further that the applicant’s licence was, in fact, suspended immediately after the subject offending on 4 July 2013,[12]and the Chief Judge, when sentencing, intended to impose an effective disqualification period of 18 months, but was constrained by the relevant mandatory provisions of TORUMA, which resulted in the effective four year disqualification period, constructed from various concurrent two year disqualification periods required to be served cumulatively pursuant to TORUMA s. 90C.[13]
- [22]The applicant’s employer, Mr Brad Hughes, attests to the applicant not having “driven a motor vehicle for the purposes of employment” and further that “if Patrick [the applicant] were able to remove the balance of disqualifications and obtain his licence, this would advantage both him and [the employer’s] business.”[14]The applicant himself attests to having received “an offer of employment from my original employer, and I have the opportunity for advancement within the industry [a reference to his employment as a hydraulic fitter working for a concrete pumping company] once I hold a driver’s licence”.[15]Critically, the applicant attests to having not driven “a motor vehicle since 4 July 2013”.[16]
- [23]The sentencing remarks from 10 October 2014 note the commission of very serious offences when the applicant was then just 24, with some concerning criminal history, “having spent just over three months in pre-sentence custody”. The sentencing remarks note information provided in reports from psychologists Professor Hydes and Dr Hatzipetrou, attesting to “significant efforts … towards [the applicant’s] rehabilitation”[17]. The Chief Judge described the offending as “bizarre and odd”, and “more akin to drunken and stupid conduct rather than conduct that might be regarded as genuinely criminal.”[18]
- [24]The applicant successfully served the operational period of the suspended sentence (which expired on 9 October 2016), remains subject to the balance of the three year probation order imposed on 10 October 2014 (which has not been breached), and remains employed. The applicant has been of good character since sentence and disqualification, has complied strictly with the relevant sentences imposed on 14 October 2014, and is now in a position where, although holding a driver licence is not critical to retaining or regaining employment, he will undoubtedly benefit from access to a driver licence in his existing employment, and in any alternative employment that he might seek.
- [25]In all of these circumstances, having carefully considered the provisions of TORUMA s. 131(2C), it is appropriate to order that the disqualification of the applicant’s driver licence be removed as of 2 March 2017.
- [26]Orders
- Application granted.
- The applicant’s application pursuant to s. 131(2) of the Transport Operations (Road Use Management) Act 1995 for the removal of a cumulative disqualification period of 4 years arising from the disqualifications imposed in the District Court, Brisbane on 10 October 2014 be allowed as and from 2 March 2017.
Footnotes
[1] Affidavit of Patrick Joseph Cash sworn 23 November 2016, Exhibit PJC2, p. 43.
[2] On 15 August 2012 (for an offence committed on 12 July 2012) for disqualified driving.
[3] Affidavit of Patrick Joseph Cash sworn 23 November 2016, Ex. PJC2, p. 1.
[4] TORUMA s. 131(2D).
[5] Lolagis v Chief Executive Officer, Queensland Transport [2002] QDC 162 (per Wilson SC, DCJ at p. 4).
[6] As defined by TORUMA s. 90C(2) & s. 90A “drink driving offences”.
[7] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ p. 381, para 69.
[8]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ pp. 381-382, para 70.
[9] TORUMA s. 131(2).
[10] This conclusion is supported by the obiter observations of Robin QC, DCJ, in Sebille v Dempsey [2009] QDC 58, p. 5.
[11] Affidavit of Patrick Joseph Cash sworn 23 November 2016, Ex. PJC 1, p. 2.
[12] Affidavit of Patrick Joseph Cash sworn 23 November 2016, para 21.
[13] Affidavit of Patrick Joseph Cash sworn 23 November 2016, Ex. PJC 1, pp. 4-5.
[14] Affidavit of Brad Hughes sworn 24 January 2017, paras 11 and 14.
[15] Affidavit of Patrick Joseph Cash sworn 16 January 2017, para 17.
[16] Affidavit of Patrick Joseph Cash sworn 23 November 2016, para 22.
[17] Affidavit of Patrick Joseph Cash sworn 23 November 2016, PJC 1, p. 2.
[18] Affidavit of Patrick Joseph Cash sworn 23 November 2016, PJC 1, p. 2.