Lindenberg v Commissioner of Police
[2018] QDC 273
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- Unreported Judgment
- Lindenberg v Commissioner of Police[2018] QDC 273
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Lindenberg v Commissioner of Police[2018] QDC 273
Lindenberg v Commissioner of Police[2018] QDC 273
DISTRICT COURT OF QUEENSLAND
CITATION: | Shaun Paul Lindenberg v Commissioner of Police [2018] QDC 273 |
PARTIES: | Shaun Paul Lindenberg (Applicant) v The Commissioner of Police (Respondent) |
FILE NO/S: | KD 6/18 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED EX TEMPORE ON: | 21 November 2018 |
DELIVERED AT: | Kingaroy |
HEARING DATE: | 21 November 2018 |
JUDGE: | Cash QC DCJ |
ORDER: |
|
CATCHWORDS: | CIVIL LAW – APPLICATION –APPLICATION FOR REMOVAL OF ABSOLUTE DRIVERS LICENCE DISQUALIFICATION – Where the applicant was convicted of numerous traffic offences, including dangerous operation of a motor vehicle with a circumstance of aggravation – where the applicant was disqualified absolutely from holding or obtaining a driver licence –Where the applicant has otherwise taken significant steps to towards rehabilitation –Where the applicant’s personal circumstances have significantly changed – Where the disqualification from holding or obtaining a licence significantly impacts the applicant’s prospects of employment – Whether it is proper that the applicant be allowed the opportunity to obtain a driver’s licence. |
LEGISLATION: | Transport Operations (Road Use Management) Act 1995 (Qld) |
CASES: | Johnson v DPP [2009] QDC 300 Slivo v Commissioner of Police [2016] QDC 46 Tabakovic v Commissioner of Police [2009] QDC 191 Wyman v Commissioner of Police [2015] QDC 231 |
COUNSEL: | S W Trewavas for the Applicant K Morrison (Legal Officer) for the Respondent |
SOLICITORS: | K F Solicitors for the Applicant Queensland Police Legal Services for the Respondent |
Introduction
- [1]This is an application pursuant to section 131(2) of the Transport Operations (Road Use Management) Act 1995 (Qld). The applicant, Shaun Paul Lindenberg, seeks the removal of absolute disqualifications from holding or obtaining a driver’s licence; one that was ordered by Judge Dick SC on 17 July 2002 and the other in the District Court at Maroochydore on 1 August 2003.[1] For the reasons which follow I have decided that it is appropriate to order that the disqualification be removed.
Background
- [2]On 17 July 2002, the applicant appeared before Judge Dick SC in the District Court at Brisbane. He entered pleas of guilty to four offences of unlawful use of a motor vehicle, one offence of unlawful use of a motor vehicle with a circumstance of aggravation, one offence of dangerous operation of a vehicle, one offence of dangerous operation of a vehicle with a circumstance of aggravation, three offences of stealing, one offence of wilful damage and one offence of serious assault. The circumstances of the offences are not detailed to any great extent. I do not consider this a critical impediment to the disposition of the present application.
- [3]Judge Dick SC considered the offences serious but was impressed by the steps the applicant had already taken towards his rehabilitation. As a consequence Her Honour sentenced the applicant to imprisonment for two and half years, such imprisonment being suspended after the 171 days the applicant had already spent in pre-sentence custody. The operational period of the suspended sentence was set as four years. Her Honour also ordered that the applicant be disqualified absolutely from holding or obtaining a driver’s licence.
- [4]The applicant breached the suspended sentence by committing further, similar, offences in February 2003. The result was that on 1 August 2003 the balance of the suspended imprisonment was activated and he was imprisoned for a further five years, to be served cumulatively on the balance of the suspended imprisonment. It was recommended that the applicant be released on parole after serving two years. Finally, he was again disqualified absolutely from holding or obtaining a driver’s licence.
Circumstances of the applicant since being sentenced
- [5]In due course the applicant was released from gaol. He committed further offences in 2004 (possessing drugs), 2006 (trespass), and 2007 and 2008 (failure to appear, failure to stop a vehicle as directed, unlawful possession of a knife in a public place and possessing drug utensils). He has not since 2008 been convicted of a criminal offence. However, his traffic record discloses that in August 2008 he drove carelessly, while drunk and while disqualified. For these offences he was imprisoned and further disqualified from holding or obtaining a driver’s licence. In March 2011, he was a passenger in a car who was not wearing a seatbelt, an offence for which he was fined. In 2013 he paid a ticket issued for speeding by a car registered in his name. He deposes that he was not the driver at the time. This is not challenged by the respondent. It remains unexplained why there was a car registered in his name in 2013 when he had been unlicensed since 1994 and why he seems to have accepted responsibility for this speeding offence. I do not speculate about this and given the position of the respondent I do not draw any inference adverse to the applicant in the present proceedings.
- [6]Of most concern is that in October 2013, the applicant was caught driving a car in the vicinity of Murgon. He deposes that he and his partner were taking their son to Brisbane for an appointment with an eye specialist and he had offered to drive to relieve his wife who was not feeling well. On this occasion he was imprisoned and further disqualified. The appellant deposes, and it is not challenged by the respondent, that he has not driven a vehicle on Queensland public roads since October 2013. He also deposes that in 2010 he sought assistance in rehabilitation and has not since that time taken alcohol or illegal drugs.
- [7]The applicant’s personal circumstances at the present are, as one might expect, considerably different to the position that obtained when he was sentenced by Judge Dick SC in 2002. He is now 46 years old. He has been with his partner for eleven years and they have three children, aged ten, seven and six.[2] They have lived in Murgon for six years and are in the process of moving to Kawungan at Hervey Bay where the children will attend Pialba State School. The applicant is qualified as a machinery operator and has worked as such for a number of years. The inability to hold a driver’s licence impedes his opportunities to find work in this field. I infer that the applicant’s last employment ended in 2016 as a result of head injuries he sustained that resulted in a long stay in hospital. The injuries resulted from a motorcycle crash when the applicant was riding a motorcycle on private property with his six year old daughter. Neither were wearing a helmet. Fortunately his daughter was not seriously injured. The appellant claims to have learnt a significant lesson from this incident and no longer owns any motorcycles.
- [8]The injuries sustained by the applicant mean he needs to attend specialist appointments in Brisbane every three months. He finds it difficult to arrange transport to these appointments. There is no evidence of the nature and extent to the brain injury the applicant acquired as a result of the motorcycle crash. This is a matter of some concern. But I proceed on the basis that while as a consequence of the orders I make today the applicant will be eligible to apply for a licence one will not be granted unless the relevant authorities are satisfied it is appropriate.
Legislation and principles
- [9]The relevant legislation is found in the following provisions of Transport Operations (Road Use Management) Act 1995 (Qld):
“131 Reviews and appeals with respect to issue of licences etc.
…
- (2)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.
…
(2C) 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.
…”
- [10]Before an order removing disqualification is appropriate, the applicant must satisfy the court, on the balance of probabilities, that having regard to his character, his conduct subsequent to the offending, the nature of the original offences and any other circumstances, that it is proper that he again be allowed the opportunity to obtain a driver’s licence.[3]
The respondent’s position
- [11]The respondent adopts a neutral position, that is, the Commissioner neither consents to, nor actively opposes, an order removing the disqualifications. The respondent submits:
“the applicant has demonstrated a level of rehabilitation. It is a matter for the Court if his demonstrated rehabilitation is sufficient to satisfy the court that it is proper to remove the disqualification”.
- [12]This submission is literally correct. But the Commissioner is the proper respondent under the legislation and thereby entitled to “appear and be heard and to give and produce evidence at the hearing of such application for or against the granting of the application”.[4] Having that opportunity the Commissioner has elected to be heard, but has not contradicted any assertion or submission made by the applicant. Yet the Commissioner seeks to maintain a position that he neither consents to nor opposes the application. If the Commissioner had no interest in the outcome of the proceeding then he is not obliged to appear. If he chooses to appear then in my view it is not unreasonable to expect that he would adopt a positive position on the application.
- [13]In any event the matter need not be considered further. It is clear from the respondent’s submissions that the Commissioner makes no suggestion that the applicant has not demonstrated, on the balance of probabilities, that the orders for disqualification should be removed.
Consideration
- [14]The matters specifically to be considered according to the legislation are the character of the applicant, his subsequent conduct, the nature of the offences and any other matter thought to be relevant.
- [15]The applicant has demonstrated his good character and the steps he has taken to achieve what might properly be described as his complete rehabilitation. He no longer takes alcohol or illegal drugs, he is in a stable relationship with children, he has been employed, and he has not committed a criminal offence in 10 years nor a traffic offence for five years. It is true that he has shown some lapses in judgement, the 2016 motorcycle crash being one of them, but importantly he has not repeated his mistakes.
- [16]Initially, the applicant’s conduct after the orders were made was not to his credit. He committed further offences and was punished, including by further orders for disqualification. But as I have just noted he has put this behind him and not offended for a considerable time.
- [17]One can infer from the orders made that the original offences were very serious. The effect of the two orders made in the District Court in 2002 and 2003 was that the applicant faced a total period imprisonment well in excess of five years. That alone speaks to the seriousness of the conduct. In my view, the fact that the sentences were imposed more than fifteen years ago for offences committed even longer in the past means that the nature of the offences is not of primary relevance in the present application.
- [18]The other matter that appears to me to be relevant is the effect of the orders for disqualification on the prospects of the applicant finding paid employment. While a degree of inconvenience is to be expected, or indeed may be intended, as part of an order for disqualification, I must consider the desirability of allowing the applicant to pursue paid employment so he can maintain a law-abiding self-sufficient lifestyle and not be a burden on the public purse.[5] Given the applicant’s qualifications as a machinery operator it is obvious that he stands a better chance of employment if he is able to drive.
Conclusion
- [19]Having regard to these matters I am satisfied that the applicant has demonstrated that it is appropriate that the orders disqualifying him from holding or obtaining a driver’s be removed.
- [20]It is of course now up to the applicant to make an application for a driver’s licence to the appropriate authorities.
Footnotes
[1] The applicant also seeks the removal of a six month disqualification period ordered on 15 January 2003 in relation to an offence of dangerous operation of a vehicle committed in January 1997. This disqualification period would have long since expired. There is no need to further consider this aspect of the application.
[2] He has older children from an earlier relationship who do not live with the applicant.
[3] Tabakovic v Commissioner of Police [2009] QDC 191; Wyman v Commissioner of Police [2015] QDC 231; Slivo v Commissioner of Police [2016] QDC 46.
[4] Transport Operations (Road Use Management) Act 1995 (Qld) s 131(2A).
[5] Johnson v DPP [2009] QDC 300.