Condon v The Commissioner of Police
[2021] QDC 259
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- Condon v The Commissioner of Police[2021] QDC 259
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Condon v The Commissioner of Police[2021] QDC 259
Condon v The Commissioner of Police[2021] QDC 259
DISTRICT COURT OF QUEENSLAND
CITATION: | Condon v The Commissioner of Police [2021] QDC 259 |
PARTIES: | GLEN MICHAEL ROBIN CONDON (applicant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 14 of 2021 |
DIVISION: | Civil |
PROCEEDING: | Application pursuant to section 131 of the Transport Operations (Road Use Management) Act 1995 |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 20 October 2021 |
DELIVERED AT: | Gympie |
HEARING DATE: | 18 October 2021 |
JUDGE: | Judge Loury QC |
ORDER: | The applicant’s licence disqualification imposed on 3 August 2017 be removed as of 20 October 2021 |
COUNSEL: | The applicant is unrepresented J Paratz for the respondent |
SOLICITORS: | The applicant is unrepresented Queensland Police Service Legal Unit for the respondent |
- [1]The applicant applies under section 131(10) of the Transport Operations (Road Use Management) Act 1995 (“TORUM Act”) for an order that the licence disqualification imposed by His Honour Judge McGill on 3 August 2017 be removed.
- [2]The applicant pleaded guilty to and was sentenced on 3 August 2017 for an offence of dangerous operation of a motor vehicle causing death and grievous bodily harm with a further circumstance of aggravation of having left the scene after the collision. He was also sentenced for a related offence of driving while a relevant drug was present. The applicant was sentenced to a head sentence of four years and six weeks imprisonment with a parole eligibility date of 11 October 2017. The effective sentence that was imposed on the applicant was four and one-half years imprisonment with parole eligibility after he had served 18 months of that sentence. Three hundred and forty-one days of pre-sentence custody were declared as time served under the sentence. There was a further period of pre-sentence custody which was not declarable but was taken into account by a reduction of the head sentence of four and one-half years to four years and six weeks imprisonment.
- [3]The appellant’s licence was disqualified for a period of five years. The learned sentencing judge had particular regard, in setting the disqualification period, to the irresponsible behaviour exhibited by the appellant after the crash and his account to a psychiatrist that he did not intend to return to long-distance truck driving.
- [4]In determining the application, section 131(14) of the TORUM Act provides 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.”
The nature of the offence
- [5]The offence was a very serious one as set out in the sentencing remarks of His Honour Judge McGill. At 4.38 am on 10 April 2016 the applicant was driving a semi-trailer when he collided with the rear of a Toyota van whilst both were travelling south on the Bruce Highway. The appellant had been working. He had delivered a load to Townsville on 9 April 2016 and was on the return journey home, after having had a few hours sleep, when he caused the collision. The van into which he crashed was travelling well below the speed limit. The applicant attempted to overtake the van however struck the right, rear corner of it causing the van to veer off the road and impact with a tree. The passenger died and the driver sustained very serious injuries amounting to grievous bodily harm. The applicant stopped at the scene and approached the van on foot to within a few metres and observed the injured persons. He then drove from the scene without providing any assistance to the injured persons. The applicant however did telephone an ambulance and provided some information as to the location of the crash, but lied indicating that he had witnessed the collision rather than having caused it.
- [6]The applicant continued to drive south and was intercepted by police later that morning. A specimen of blood was taken which revealed the applicant had consumed methylamphetamine. He was sentenced on the basis that he consumed the drug after the collision. The applicant lied to police about his involvement in the offence.
The appellant’s character and conduct subsequent to the offence
- [7]The applicant was 37 at the time of the offence. He is 43 years of age now and lives in Kilkivan. He was released on parole on 5 June 2018 (8 months beyond the parole eligibility date). He completed his period on parole without any breaches. He was subject to random drug testing throughout the order. He returned two positive urine tests, one for methylamphetamine and one for cannabis. His parole was not suspended. He served out the period on parole completing his sentence on 22 October 2020.
- [8]The applicant’s criminal history reveals convictions: in 2001 for fraud and in 2009 for serious assault; convictions in 2010 and 2012 for breaching a domestic violence order and using a telecommunications service to menace, harass or cause offence; convictions in 2014 for entering premises with intent to commit an indictable offence; a conviction in 2015 for trespassing and convictions in 2015 for possessing drugs and utensils. Until his conviction for dangerous operation of a motor vehicle causing death and grievous bodily harm in 2017 the applicant had never served time in actual custody. Since his release on parole the applicant has not been convicted of any further criminal offences.
- [9]Whilst serving his sentence the appellant completed a number of courses which appear to be related to horticulture. He also successfully completed the “Bridges Substance Use and Intervention” program.
- [10]Prior to his incarceration the applicant worked as a truck driver. He has exhibited certificates indicating his qualifications in driving operations, particularly for heavy freight. His traffic history is lengthy. He has been convicted of exceeding the speed limit on 10 occasions between January 2001 and April 2016. Two of the appellant’s convictions for speeding were committed after the collision in which he killed a person and grievously injured another. He has been convicted of following too closely behind a vehicle; failing to stop at a stop sign; and using a mobile phone whilst driving. Related to his driving of a truck are convictions for exceeding the mass requirement for a vehicle; failing to record a change of activity in a logbook; failing to record information in a logbook before commencing driving; and failing to record information in a diary immediately before or after each work/rest change. Significantly, the appellant’s last conviction for a traffic offence was committed on 9 July 2016.
Other circumstances
- [11]The applicant lives in Kilkivan with his parents where there is no access to public transport. He is reliant on his father for transport. He is also reliant upon Centrelink for an income. He finds it difficult to gain employment without a licence and difficult to get to job interviews without a licence. The applicant wants to get a job driving trucks locally. He does not want to return to driving long haul or interstate. The lack of a licence also impacts on the applicant’s ability to see his 14 year old son who lives in Gympie.
- [12]The applicant relies upon an affidavit of his father which supports his account of reliance on his father for transport. His father also states that the applicant does not drink alcohol or use drugs.
Consideration
- [13]
“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.”
- [14]His Honour Judge Farr SC also said that before such an order should be made the applicant would need to satisfy the court that there had been a substantial change in character and conduct on his behalf and that he has demonstrated a legitimate purpose for obtaining a driver licence as well as there being a sufficiently lengthy deprivation of the ability to drive to satisfy the community’s demand for punishment.
- [15]The appellant has now been in the community for three years and four months. He has not committed any further criminal offences or traffic offences. He has now been without a licence, in the community, for a lengthy period of time.
- [16]A matter which concerned His Honour Judge McGill was a view expressed by the psychiatrist, whose report was relied upon at sentence, that the appellant’s post-traumatic stress disorder may have impaired his judgement or made it difficult for him to think clearly after the collision. That might, it seemed, have explained his use of methylamphetamine so soon after colliding with the van.
- [17]The appellant engaged with a psychologist, Ms White for multiple sessions whilst subject to parole. The report prepared by Community Corrections states that the appellant appeared to benefit from the sessions with Ms White. The applicant has confirmed that he has a mental health care plan and still sees Ms White regularly although she has referred him to another service in Glenwood which he is unable to get to because of his lack of a licence. He last engaged with Ms White three months ago.
- [18]A feature of concern is that during his period on parole the applicant twice tested positive for the use of drugs. On 11 October 2018 he returned a positive urine test for methylamphetamine. That was four months after his release on parole. On 13 August 2019 the applicant underwent a urine test which tested positive for cannabis. He was issued a warning in both instances and psychological intervention continued. The applicant submitted that he relapsed.
- [19]The applicant also produced a urine test taken on the date of the hearing, 18 October 2021. That test revealed the presence of cannabis but no other drugs. The applicant stated that he has stopped smoking [cannabis] and that the cannabis present was from some time ago when he was smoking. The applicant did not need to disclose this urine test. That he underwent the test and produced it to the court, in circumstances where he did not have to do so, tends to indicate that he is genuine in his statement that he has now stopped smoking cannabis.
- [20]The appellant owns his own semi-trailer and has the offer of employment carting grain in Goondiwindi from paddock to silo. He has indicated that the position involves drug testing. He states that he has a better outlook on life now and appears in his presentation to me excited by the prospect of employment after such a significant period of time spent in the community without a job and little access to transport.
- [21]The applicant has a legitimate purpose for wanting the disqualification lifted as he has an offer of employment. He has now been in the community for a significant period of time without a licence. Added to the imprisonment imposed as a punishment for his offending, it seems to me that the period without a licence (4 years and 2 months) properly satisfies the community’s demand for punishment. The disqualification period has now extended 12 months beyond the end of the period of imprisonment imposed.
- [22]The probabilities favour the exercise of my discretion to remove the applicant’s licence disqualification for a number of reasons. They are: the long period that he has now spent in the community without a licence and without committing any traffic offences or being convicted of any criminal offences; he has been deprived of the ability to drive for a significant period of time including a period extending beyond his term of imprisonment; the applicant appears committed to his own rehabilitation and has taken steps to demonstrate that by engagement with a psychologist over a significant period of time; the applicant resides in a regional town where there is no public transport which has limited his ability to gain employment; and; he now has the offer of employment. The applicant has, in my view, been punished sufficiently to satisfy the community’s demand for punishment. By again holding a licence the applicant will be able to contribute in a positive way to the community which will contribute to his rehabilitation.
- [23]My orders are that the applicant’s licence disqualification imposed on 3 August 2017 be removed as of 20 October 2021.
Footnotes
[1] [2016] QDC 46; referred to in Anderson v Commission of Police [2021] QSC 254 by Bowskill SJA