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Hawkins v Commissioner of Police[2022] QDC 140

Hawkins v Commissioner of Police[2022] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Hawkins v Commissioner of Police [2022] QDC 140

PARTIES:

MITCHEL JAMES HAWKINS

(applicant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

12/22

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

20 June 2022

DELIVERED AT:

Rockhampton

HEARING DATE:

30 May 2022

JUDGES:

Clarke DCJ

ORDER:

The application is granted

CATCHWORDS:

APPLICATION FOR REMOVAL OF DRIVER LICENCE DISQUALIFICATION – where applicant was convicted of dangerous operation of a motor vehicle causing death – disqualified absolutely – where order for disqualification should be removed

LEGISLATION:

Transport Operations (Road Use Management) Act 1995 (Qld) ss 131(10), 131(14)

CASES:

Tabakovic v Commissioner of Police [2009] QDC 191

Johnson v DPP (Qld) [2009] QDC 300

Slivo v Commissioner of Police [2016] QDC 46

Anderson v Commissioner of Police [2021] QSC 254

COUNSEL:

Ms. M. Willey for the applicant

Ms. C. N. Brown for the respondent

SOLICITORS:

Madden Solicitors for the applicant

Commissioner of Police for the respondent

  1. [1]
    The applicant pleaded guilty in the Rockhampton District Court on 17 April 2019 to an offence of dangerous operation of a motor vehicle causing death. He was sentenced to imprisonment for a period of two years and nine months, suspended after having served eight months imprisonment, for an operational period of five years.  He was further disqualified absolutely from holding or obtaining a driver licence.[1]
  2. [2]
    The application to remove the absolute disqualification is opposed: conversely it is submitted that the court may order the removal from 17 December 2022 being a period of three years from when the applicant was released from custody.
  3. [3]
    The applicant is now 26 years of age.  He was 21 at the time of the dangerous driving and 23 when sentenced. He and other young people had gone on a camping trip at Five Rocks in the Byfield National Park. Alcohol had been consumed by the applicant and others, although there wasn’t an allegation that he was adversely affected at the time of driving.
  4. [4]
    Later that evening on 25 November 2017, the applicant drove up the beach near the watermark, overtaking another vehicle which was travelling at 60 kilometres an hour on the left. There were two passengers in the applicant’s vehicle: a 16 year old female front passenger, who was not known to him, and a male friend who was asleep on the back seat. As the applicant drove over the natural undulations in the beach surface his vehicle started to “bounce” or “porpoise”.
  5. [5]
    Failing to slow, the applicant’s vehicle became airborne and rolled head over. The passengers were not restrained. The front seat passenger, an only child, was killed.
  6. [6]
    The applicant, by then a trade qualified diesel mechanic, had modified his vehicle by fitting large tyres, raising the suspension and removing the stabilising bar.
  7. [7]
    Prior to the dangerous driving which had occurred on 25 November 2017, the applicant had accumulated seven traffic tickets between December 2012 and April 2017:
    1. (i)
      One for failing to stop at a red light;
    2. (ii)
      One for failing to stop at a stop sign;
    3. (iii)
      One for speeding less than 13 kilometres an hour over the limit;
    4. (iv)
      One for failing to fulfil duties after a crash; and
    5. (v)
      Three for driving or permitting driving of a defective vehicle.[2]
  8. [8]
    The applicant’s driver licence had been suspended due to the accumulation of demerit points for three months in September 2014. He was not detected driving whilst suspended nor detected driving in contravention of a late-night driving restriction in late 2014.
  9. [9]
    Subsequently to his release into the community on the suspended imprisonment, he was issued with a further ticket for permitting a defective vehicle to be driven. His vehicle, which did not have a muffler fitted and was registered in his mother’s name, was being driven by his defacto partner while he was in the car on 21 November 2021.  He had not been issued with any other traffic tickets while on bail for the dangerous driving charge and he has otherwise fully complied with the order of absolute disqualification imposed on 27 April 2019.
  10. [10]
    The applicant is eligible to apply for removal of the driver licence disqualification: more than two years has expired since the start of the disqualification period.[3]  If the application is refused, a further application shall not be entertained until another year has passed.[4]
  11. [11]
    The Transport Operations (Road Use Management) Act 1995 (Qld) s 131(14) sets out the factors to be applied, in deciding whether to grant the application, in the exercise of discretion:
    1. (a)
      The character of the applicant;
    2. (b)
      The applicant’s subsequent conduct;
    3. (c)
      The nature of the offence; and
    4. (d)
      Any other circumstances of the case.
  12. [12]
    Issues of the applicant’s character, subsequent conduct and nature of the offence leading to disqualification are largely self-explanatory and directly referable to each individual case.
  13. [13]
    Otherwise, the court may consider the other circumstances including: the need to address the community’s demand for punishment in considering the sufficient length of disqualification[5]; the period of time in the community following incarceration (disqualification served in custody hardly being capable of consideration as punishment);[6] the substantial change in character and demonstrated legitimate purpose for restitution of driver licence;[7] the inconvenience caused in maintaining day to day activities is not relevant, whereas the indication of potential loss of employment, or gaining employment is.[8]  Farr SC DCJ said the following in respect to this in Slivo v Commissioner of Police: [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.”

  1. [14]
    In this case, the applicant has demonstrated his otherwise good character. He maintained employment before and after incarceration. His employer is supportive of him and speaks highly of his fine personal attributes. The affidavit evidence confirms he has received praise from customers, superiors and work colleagues. He has complied with an order of disqualification for a period of about two years and six months.  He has relied on others to commute for work between the Capricorn Coast and the central west. The applicant’s traffic history is not ideal but it is not as bad as some. The dangerous driving is the only entry on his criminal history. The driving conduct leading to the order for absolute disqualification was undeniably bad. With respect, the learned sentencing Judge comprehensively identified the aggravating and mitigating factors.
  2. [15]
    I accept the applicant’s affidavit evidence that he feels “haunted” by being responsible for taking a young girl’s life.  He is saving to buy a house with his partner, which may be hampered if he cannot maintain employment. There is a demonstrated need for his driver licence to be restored so that he can collect vehicles at mine sites and other places or attend callout jobs. His employer cannot afford to continue to provide a driver for him indefinitely. 
  3. [16]
    I have been persuaded it would be appropriate to grant the application in the exercise of discretion.  I am satisfied, having regard to all matters, the applicant’s rehabilitation following incarceration may be compromised if the application is refused. I see little utility in imposing a further sanction on his ability to drive. The applicant will be subject to the restrictions of a P probationary licence upon obtaining a driver licence. He simply must comply with those restrictions.  In the absence of the conviction for dangerous driving, the applicant has been a law abiding and productive member of the community. The applicant’s rehabilitation is enhanced by having his licence restored. Notwithstanding the seriousness of the offence, I consider the disqualification period served has been enough to address issues of punishment. 
  4. [17]
    It is ordered:
  1. The application is granted;
  2. Pursuant to Transport Operations (Road Use Management) Act 1995 (Qld) s 131(10) the driver licence disqualification imposed on the applicant in the District Court at Rockhampton on 17 April 2019 be removed as of 20 June 2022;
  3. There be no order as to costs.

Footnotes

[1]  Pursuant to Penalties and Sentences Act 1992 (Qld) s 187.

[2]  Different defectives to the modifications at the time of the dangerous driving.

[3] Transport Operations (Road Use Management) Act 1995 (Qld) s 131(10).

[4] Transport Operations (Road Use Management) Act 1995 (Qld) s 131(15).

[5]  See Tabakovic v Commissioner of Police [2009] QDC 191; Slivo v Commissioner of Police [2016] QDC 46.

[6] Slivo v Commissioner of Police [2016] QDC 46; Anderson v Commissioner of Police [2021] QSC 254.

[7] Slivo v Commissioner of Police [2016] QDC 46.

[8] Johnson v DPP (Qld) [2009] QDC 300; Anderson v Commissioner of Police [2021] QSC 254.

[9]  [2016] QDC 46 at [9]. Cited in Anderson v Commissioner of Police [2021] QSC 254.

Close

Editorial Notes

  • Published Case Name:

    Hawkins v Commissioner of Police

  • Shortened Case Name:

    Hawkins v Commissioner of Police

  • MNC:

    [2022] QDC 140

  • Court:

    QDC

  • Judge(s):

    Clarke DCJ

  • Date:

    20 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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