Harrison v Commissioner of Police
[2021] QDC 78
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- Unreported Judgment
- Harrison v Commissioner of Police[2021] QDC 78
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Harrison v Commissioner of Police[2021] QDC 78
Harrison v Commissioner of Police[2021] QDC 78
DISTRICT COURT OF QUEENSLAND
CITATION: | Harrison v Commissioner of Police [2021] QDC 78 |
PARTIES: | Jacob Wylie Harrison (Applicant) v Commissioner of Police (Respondent) |
FILE NO: | 797/21 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 30 April 2021 (Ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATES: | 27 April 2021 and 30 April 2021. |
JUDGE: | Byrne QC DCJ |
ORDER: | The disqualification imposed on the applicant in the Beenleigh District Court on 5 April 2019 be removed effective from today, the 30th of April 2021. |
CATCHWORDS: | CIVIL LAW – APPLICATION – APPLICATION FOR REMOVAL OF ABSOLUTE DRIVERS LICENCE DISQUALIFICATION – where the applicant applied pursuant to section 131 (10) of the Transport Operations Road Use Management Act 1995 (Qld) for the removal of a drivers licence disqualification – where the applicant was convicted of numerous traffic offences including dangerous operation of a vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance – where the applicant was disqualified absolutely from holing or obtaining a drivers licence for 3 years – where the applicant was incarcerated for 12 months of the disqualification period – where the applicant has otherwise taken significant steps towards rehabilitation – where the applicant’s personal circumstances have significantly changed – where the disqualification from holding or obtaining a drivers licence significantly impacts the applicant’s prospects of progression in his employment – where the absence of a drivers licence places substantial financial burden on the applicant in respect to the expenses associated with transport to and from employment – whether the personal circumstances of the applicant have changed since the time of sentencing so that a lesser period of disqualification satisfies the interests of justice in an overall sense |
LEGISLATION: | Penalties and Sentences Act 1992 (Qld) Transport Operations Road Use Management Act 1995 (Qld) |
CASES: | Lolagis v Chief Executive Officer Queensland Transport [2002] QDC 162. Slivo v Commissioner of Police [2016] QDC 46 |
COUNSEL: | The applicant appeared in person. Mr J. Paratz (sol) |
SOLICITORS: | The applicant appeared in person. Solicitor for the Queensland Police Service. |
Introduction
- [1]The applicant was convicted in the District Court at Beenleigh on the 5th of April 2019 after his plea of guilty to an offence of dangerous operation of a vehicle, causing grievous bodily harm whilst adversely affected by an intoxicating substance. He had also pleaded guilty on that occasion to summary offences which were transmitted to that Court of, to use common parlance, drink driving and unlicensed driving.
- [2]On the dangerous operation offence, he was sentenced to six years imprisonment with parole eligibility after 12 months and he was disqualified from holding or obtaining a driver’s license for three years. It is that disqualification which is the subject of the present application. In respect of the summary offences, he was convicted and not further punished, saved for the imposition of six-month periods of disqualification on each.
The Legislative Framework
- [3]As I have already alluded to, the application before me is an application for the removal of the disqualification. Section 131(10) of the Transport Operations Road Use Management Act 1995 (“TORUM”) allows a disqualified person to apply to a Court after two years have passed since the person was disqualified from holding or obtaining a driver’s license, for the removal of that disqualification where the period of disqualification was two years or more. Section 131(14) of TORUM requires a Court hearing such an application to have regard to
- (1)the character of the disqualified person;
- (2)the disqualified person’s conduct since the order for disqualification was made;
- (3)the nature of the offence; and
- (4)and other circumstances of the case.
- [4]I understand the last mentioned matter of any other circumstances of the case to mean any other circumstances of the application. It is wide enough to encompass consideration of anything else I consider to be relevant, but if I am wrong in that, I do not understand section 131(14) to be an exhaustive list and so I should have regard to all relevant matters, which I would have thought was an uncontroversial proposition.
- [5]Section 131(15) of TORUM provides that if the application for removal is refused, another application shall not be entertained for a period of one year after the date of the refusal.
- [6]It is accepted law that if an application of this nature is to be granted, it may be granted on and from the date of the decision or any date in the future. The Court is not limited to granting the application immediately - see Lolagis v Chief Executive Officer Queensland Transport [2002] QDC 162.
Prior offending
- [7]The offence of which the applicant was convicted is a remarkably serious example of that offence. I will only touch upon it broadly, but I have had regard to the minute detail of it. On Saturday the 30th of December of 2017 at about 5.25 pm, the applicant was involved in a two-vehicle traffic collision at Waterford West. He was driving a borrowed utility with one passenger, who suffered grievous bodily harm. His vehicle collided with a parked motor vehicle. For a distance of approximately 10.7 kilometres, the applicant had been driving the borrowed utility in a particularly dangerous, high speed and reckless manner. At the critical junction of this journey, he drove the wrong way around a roundabout, lost control on exiting the roundabout, the vehicle travelled sideways for something in the order of 50 metres before the passenger side of the vehicle impacted the parked sedan.
- [8]There was extensive damage, unsurprisingly, and the passenger received permanent injuries, including traumatic brain injuries which were life threating and have resulted in permanent and significant ongoing loss of amenity of life. It is said that in February of 2019, he was assessed medically by a neurosurgeon who determined he had reached the maximum point of improvement. He still at that time suffered significant physical and neurological impairment. He required 24-hour care. I need not say no more about the seriousness of the injuries suffered.
- [9]At the time of the incident, the applicant was unlicensed due to a previous high-speed driving suspension. He was also found to have a blood alcohol concentration of .116 per cent and he had the presence of THC in his system. He had quite a bad traffic history for a man of 18 years of age at the time, having throughout 2017 regularly accumulated traffic infringements.
The parties’ submissions
- [10]The applicant has provided a written application in the matter in which he speaks of holding a job with a concreting firm, which he held since his release from prison and which occurred at the recommended time after 12 months, that is in early April of 2020. He speaks of incurring considerable expenses to pay a friend, co-workers, or the Uber travel company to travel to and from work each day. Those costs, he says, place financial pressure on him and his young family and he estimates that he spends close to his half weekly wages, of about $900 a week, on these travel expenses. That, he says, causes him anxiety and affects his ability to sleep at night and he lives with the concern that somebody he has organised to get a lift with will let him down.
- [11]He speaks of recognising the dangerousness of what he did, and of his disrespect for the law, that he had been engaged in at that age of 18 years. He says he is a changed man and he says that he can be trusted with a driver’s license. He asserts he will not re-offend. He speaks of being committed to a long-term relationship and he has the responsibility of being a stepfather to one child. In oral submissions, it is revealed that he, in fact, is expecting the arrival of another child in November of this year.
- [12]Importantly, I think, he speaks in his written application of having been told by his employers that there is an opportunity for promotion at work and to take on a role which holds more responsibility. He believes without a license or vehicle he will miss out on the opportunity and that he will be prevented from achieving in his employment and saving for a home deposit. He speaks well of the role that his employment takes in his overall life.
- [13]The Commissioner of Police has adopted a largely neutral, but nonetheless, helpful approach to the matter. I do not know that there is any particular matter that I need to identify from the submissions of the respondent, other than to say that the conclusion is that, in all of the circumstances, if I am satisfied that the applicant has demonstrated sufficient change of character and provided sufficient reasons for requiring a license, the respondent does not oppose such a course.
Consideration
- [14]The period of disqualification is part of the result of an exercise of the primary Judge’s sentencing discretion. The power to remove part of the period of disqualification is, in my view, an exceptional power. Ordinarily, a variation of a sentence only occurs through the appellate process, which requires proof of error, or through an application to re-open the sentence, pursuant to section 188 of the Penalties and Sentences Act 1992, which in turn requires proof of matters encompassing error of the kinds nominated in that section.
- [15]On the other hand, the power granted by section 131 of TORUM does not require proof of error. Indeed, the section presumes that the sentence has been validly imposed and therefore without error of either of those aforementioned kinds. The occasion for the exercise of the power would ordinarily only arise where the personal circumstances of the disqualified person have changed since the time of sentencing so that a lesser period of disqualification satisfies the interests of justice in an overall sense.
- [16]I expressly agree with the observations of Farr SC DCJ when in Slivo v Commissioner of Police [2016] QDC 46, his Honour said at [39]:
“Before such an order should be made, the applicant would need to satisfy the court there had been a substantial change in character and conduct on his behalf subsequent to the original order and that he had 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”.”
- [17]I would add one further observation. Although the power granted by section 131 is exceptional, that does not mean the applicant must demonstrate exceptional circumstances in order to succeed on the application. However, the application of Briginshaw principles[1] when assessing the level of reasonable satisfaction required, means that an application will not be lightly granted. An applicant must prove to a high standard the appropriateness of granting an application in order to justify the variation of a sentence which is free from error in the relevant sense.
- [18]There is an unusual feature about the present matter. The sentencing Judge expressly intended that the effect of disqualification period would be three years. His Honour reached that figure of three years by balancing relevant considerations, including the necessity of punitive punishment in the serious circumstances of the offending against the desirability of facilitating the rehabilitation of the applicant. His express intention was that the lesser periods of disqualification of six months each be served concurrently with the three-year period.
- [19]However, the effect of section 90C of TORUM is that at least one of these six months terms will be served cumulatively with the three-year period. I say at least one because that is how I read the effect of the provision. But I have been provided with a document from Queensland Transport, which indicates that organisation considers the effect is one of four years disqualification overall. That is that the two six-month terms are served cumulatively on each other and then on the three-year period.
- [20]I need not consider the validity of this calculation as it is clear that the considered and deliberate intention of the sentencing Judge has not been achieved. This is a matter which could have been corrected on a re-opening but it seems to me in the circumstances that it is also something which is capable of resolution on an application of this kind, and that it is not desirable that further time and expense be expended in pursuing the correction of this unintentional error. Accepting that it should be corrected, the issue then is whether there should be an order having the effect of further reducing the period of disqualification to less than that intended three-year period.
- [21]The applicant is a young man. He was 18 years of age at the time and 22 now. He has not offended on the material before me since his offending on the 30th of December of 2017. Prior to that time, he had a a brief criminal history of no real moment, but he had a terrible traffic history, particularly for speeding throughout 2017, leading to the time of the offending in December of 2017.
- [22]His lack of offending since that time lends support to his submission that this is a turning point for him and that he is no longer that man. Of some relevance is that the applicant is in a relationship and is a stepfather to one child. I do, however, note that this was, as elicited in the course of oral submissions, a relationship which had commenced shortly before, but nonetheless had commenced prior to the time of the sentencing. The criteria under section 131(14) of TORUM refers to his conduct since the order for disqualification but does talk about the character of the disqualified person without any relevant time limitation put on that. If the fact of the relationship is, in fact, something which should be given little or no weight given its pre-existence to the order made in the Beenleigh District Court, I do however, note that the pregnancy due to produce a child in November of this year is something since that time and a relevant factor to take into account. I will return to this issue shortly.
- [23]It seems to me that the real nub of the applicant’s submission is that at present he is spending about half of his weekly age of roughly $900 paying for transport to and from work and that without a license he will be unable to pursue improved and better paying work opportunities at his current place of employment. That this is so is supported by a statement from his employer and is not challenged by the respondent. The impact on his family is a relevant feature and favours granting the application. However, on the other hand, the disqualification was designed to impose a penalty for offending which was evidently very serious.
- [24]A further matter that I must consider is the period which he has been without a license. The period of three years disqualification was imposed, as I have said, in December of 2017. The first 12 months of that period coincided with the applicant’s imprisonment. That can hardly be seen to be a punishment. He had no need for a license whilst incarcerated. Of the remaining two years, just under 13 months has passed, leaving about 11 months to operate on that period. I have been greatly troubled by this, that is, the proportion of the disqualification which has passed while he has been in the community, reflecting the need for disqualification to be part of the punishment for what is very serious offending.
- [25]However, as the applicant has pointed out to me, he in fact has not held a license since the 30th of December of 2017, due to the a combination of the legislatively imposed immediate suspension of his license in the circumstances of the matter and the later imposed Court ordered disqualification, the subject of the application. Put into other words, the applicant has been suspended or disqualified as a result of his offending on the 30th of December 2017 for, in round figures, three years and four months of which two years and four months has passed whilst he has been in the community.
- [26]The automatic suspension of the license was not a matter expressly referred to by the sentencing Judge when imposing sentence, and I consider it is likely it was not taken into account by his Honour. I mean no criticism by that whatsoever, but that is, I think, the justification for me to take into account that matter. Under his Honour’s order, two years would have been operative whilst the applicant was in the community. The reality is that there has been two years and four months effectively operative whilst he has been in the community.
- [27]I am very mindful of the seriousness of the original offending. Indeed, it is a matter which militates strongly against the granting of the application. Nonetheless, in all of the particular circumstances of this matter, the applicant has persuaded me to the high standard required that the disqualification should be removed, and that, given the actual period of effective suspension and disqualification, should be from today.
Order
- [28]My order in this matter is:
- The disqualification imposed on the applicant in the Beenleigh District Court on 5 April 2019 be removed effective from today, the 30th of April 2021.
Footnotes
[1] Briginshaw v Briginshaw (1938) 60 CLR 336, 161-363.