Warren v Commissioner of Police
[2023] QDC 245
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- Unreported Judgment
- Warren v Commissioner of Police[2023] QDC 245
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Warren v Commissioner of Police[2023] QDC 245
Warren v Commissioner of Police[2023] QDC 245
DISTRICT COURT OF QUEENSLAND
CITATION: | Warren v Commissioner of Police [2023] QDC 245 |
PARTIES: | JADE PETER WARREN (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | Indictment No. 20 of 2023 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Ipswich |
DELIVERED ON: | 21 June 2023 (ex-tempore) |
DELIVERED AT: | Ipswich |
HEARING DATE: | 21 June 2023 |
JUDGE: | Farr SC DCJ |
ORDER: |
|
CATCHWORDS: | TRAFFIC LAW – LICENSING OF DRIVERS – QUEENSLAND – DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES – where the applicant seeks an order for the removal of his absolute disqualification from holding a driver licence – where the disqualification arose as part of a sentence imposed on a plea of guilty to three counts of dangerous operation of a motor vehicle – where the learned sentencing Judge placed particular emphasis upon the applicant’s psychological and psychiatric state upon the imposition of the disqualification – where the applicant has provided a psychiatrist report attesting to his current mental status – where the applicant has provided other evidence to demonstrate a legitimate purpose for obtaining a driver licence – where the applicant has been disqualified for a period of approximately 14 years and 10 months – where there is no opposition to the application – whether the applicant can satisfy the court on the balance of probabilities that it is now appropriate to dispense with the disqualification |
LEGISLATION: | Transport Operations (Road Use Management) Act 1995 (Qld), s. 131(10), s. 131(14) |
CASES: | Morgan v Commissioner of Police [2007] QDC 10 Tabakovic v Commissioner of Police [2009] QDC 191 |
COUNSEL: | D Fitzgerald for the applicant A Engstrom for the respondent |
SOLICITORS: | XL Legal for the applicant Queensland Police Service for the respondent |
Introduction
- [1]In accordance with section 131(10) Transport Operations (Road Use Management) Act the applicant seeks an order to remove an absolute disqualification from the applicant holding a driver licence. The applicant appeared on 27 June 2008 at which time he pleaded guilty to, I understand, three counts of dangerous operation of a motor vehicle. He was sentenced to 12 months’ imprisonment with an immediate parole release date and he was disqualified absolutely from holding or obtaining a driver licence in respect of each of those offences.
- [2]Section 131(10) of the Act in question 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, may, at any time after the expiration of two years from the start of the disqualification period, apply for the disqualification to be removed.
- [3]Subsection (14) states:
Upon hearing any such application, the judge 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 circumstance of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.
- [4]The onus is on the applicant to satisfy this court on the balance of probabilities that it is now appropriate to dispense with the disqualification which was considered suitable at the time it was imposed as part of his sentence. If the applicant cannot satisfy the Court of that, then the application ought be refused.
- [5]I note that no material has been filed and no submissions have been made on behalf of the applicant in this matter. But I also note that if the court is satisfied of certain matters, that the respondent does not oppose, the order sought can be made. Ordinarily, I would refuse to hear a matter in the absence of submissions, but in the circumstances of this case, I will proceed with it. But, Mr Fitzgerald, you should be well aware that you are not to come to Court at any future stage without submissions. That is unacceptable to this Court.
- [6]In deciding whether to exercise its discretion, the Court is guided primarily by section 131(14) of the Act, which requires the Court to consider:
- the nature of the offending conduct;
- the character of the applicant;
- the applicant’s conduct subsequent to the order; and
- any other circumstance of the case.
- [7]The offending conduct that resulted in the order in question can be summarised as follows. On 25 June 2006, police observed the applicant’s vehicle at 2:30am. The police were stopped at a roundabout conducting random breath tests and the applicant accelerated heavily towards the police vehicle. Police attempted pursuit, but the applicant evaded police by speeding away, exceeding 100 kilometres per hour in a 60 kilometre per hour zone. Then, on 30 December 2006, police observed the applicant’s vehicle on the Warrego Highway at Dinmore. The applicant was speeding at about 151 kilometres per hour in an 80 kilometre per hour zone. He was directed to stop and although first slowing down, accelerated away. A subsequent intercept was attempted and the applicant was driving at speeds of up to 180 kilometres per hour. He drove close to other vehicles which were required to take evasive action to avoid contact or collision with his car. The offences on 30 December 2006 were committed whilst he was the subject of bail conditions imposed for the earlier offence and the Court considered that to be of considerable concern.
- [8]At the time of that offending conduct the applicant was 27 years of age. At sentence he was 29 years of age. He is now 44 years of age. Prior to the disqualifying offending, the applicant had an extensive criminal history dating back to 2005, including breaches of the Domestic and Family Violence Protection Act, breach of bail, stealing, being drunk in a public place, assault police, obstruct police, possession of a knife in a public place or school and wilful damage. He has further criminal history entries for offences which were committed before or around the time of the disqualifying offending but sentenced after the disqualification order. They included several failures – failure to stop motor vehicle charges, unlawful stalking and assault occasioning bodily harm. Postdating the absolute disqualification, the applicant has further Queensland criminal history entries for which he was sentenced in 2017, 2021 and 2022 including contravention of domestic violence order, assault or obstruct police officers, possessing or acquiring restricted items and several charges in relation to receiving tainted property.
- [9]He also has a more recent traffic history and criminal history from the Northern Territory. In 2017 or 2018, he was convicted of assault traffic related offences in that Territory. The traffic offences were committed on 16 February 2018. One was a speeding, where he was travelling at 81 kilometres per hour in a 60 zone and the other, towing an unregistered and uninsured trailer. I note though, that he had, at that time, a current Northern Territory driver licence which was issued in 2017. I understand that the applicant also has other outstanding charges currently before the Court. The Court has not been advised as to the nature of those offences. Although the applicant has deposed that they are not of a like nature to those which were the subject of the proceedings when the absolute disqualification was imposed and the respondent does not dispute him in that regard.
- [10]In support of his application, the applicant has deposed that:
- he has been primarily unemployed since the absolute disqualification was imposed, save for small jobs and contracts and has been unemployed for the past six years;
- notwithstanding that, from April to August 2022, he was employed as a heavy diesel fitter for a mining equipment company but had to resign as a consequence of the company ceasing to provide transportation from Bendigo to the mine site and he being unable to travel by hire vehicle due to his licence disqualification. That was a position as a fly-in-fly-out worker;
- he has found it difficult to obtain and sustain gainful employment due to limited work opportunities given his lack of a driver licence;
- he has been offered a full-time position as a heavy diesel fitter should this application for the removal of the disqualification be granted;
- being unlicensed has negatively impacted his family and social life including pressure on his partner as the sole driver; and
- he has found it challenging to acquire assets, savings and to improve his financial position due to his lack of a licence and that obtaining a driver licence would allow him to improve his financial position and increase his and his family’s stability.
He has also attested that his inability to teach his children to drive is now a source of personal shame. Although, little weight can be placed upon that.
- [11]The respondent has accepted that the applicant has now expressed remorse for the behaviour the cause of the order for absolute disqualification and that he has now demonstrated some insight into behaviour of that type. I note that at the time of the imposition of the absolute disqualification, the learned sentencing Judge, Judge Rafter SC, placed particular emphasis upon the applicant’s then psychological and psychiatric state. His Honour stated:
Having regard to the worrying contents of the psychological and psychiatric reports, my view at the moment is that you should not be on the road. Therefore, I propose to impose an absolute driving disqualification.
- [12]When raising the option for the applicant to apply for the removal of that disqualification at some future time, his Honour remarked:
Whether you should get your licence back will depend very much on your mental state at that time.
- [13]The applicant has provided, now, a report from his treating psychiatrist, Dr Sarkar, dated 15 April 2023. It reports that the applicant has attended sessions on ten occasions, dating back to 2021. Dr Sarkar details the applicant’s recent mental status examination, stating:
He had good self-care, presented as polite and insightful about responsibilities of safe driver, genuine in his intentions to build his career, regretful about his actions that led to loss of licence. He did not present with a mood disorder or psychotic thought process and did not have features of personality pathology.
- [14]Dr Sarkar can identify no reason for there being concern regarding the applicant’s risk to other commuters or road users if his licence is reinstated and notes that he is on medication for sleep apnoea but that medication does not sedate beyond regular sleep hours. Dr Sarkar, though, has recommended that the applicant continue to be reviewed by a psychiatrist every three months for at least the first year after he resumes driving.
- [15]It should be noted, as is obvious from that which I have already mentioned, that the applicant has now been disqualified from driving in Queensland for a period of approximately 14 years and 10 months. He did incur a couple of driving convictions at a time when he was the subject of that disqualification, but that now was back in 2011, some 12 years ago. He has therefore, been the subject of this absolute disqualification for a substantial period of time. The courts have commented upon the purpose of section 131 of the Act on occasion in the past. Judge Robin QC in Tabakovic v Commissioner of Police[1] said:
In my respectful opinion, the section is there serving 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.
- [16]
Ultimately, however, a judgment is required which, in a particular case, balances the interests of the applicant in having his or her licence restored with those of the community in not prematurely sanctioning the right of an offender to resume driving after committing a serious criminal offence which placed in jeopardy the safety of members of that community.
- [17]Given the passage of time between the imposition of the absolute disqualification and this application, there is no risk in this case of there being an imbalance in that regard. In the applicant’s favour, of course, is not only that lengthy period of time that he has now been the subject of that disqualification period, but he has also provided evidence relating to psychiatric treatment that has now been taking place for about two years, which suggests that the issues which concerned Judge Rafter SC back when the order was made no longer exist.
- [18]The applicant has also demonstrated in the material some insight into his offending conduct and it would seem, upon all the material that he has matured considerably during that time. The passage of time that has elapsed could only be viewed as sufficiently punitive in all of the circumstances, and there is no prospect that after that passage of time, anyone can view the removal of the absolute disqualification as being inadequate in the circumstances when considered as being part of a sentence.
- [19]As I have indicated, the respondent has conceded that if the court concludes that the applicant has provided sufficient evidence to demonstrate a legitimate purpose for obtaining a driver licence and that he has satisfied the other criteria to which I have made reference, then there is no opposition to the application in question. He has demonstrated a legitimate purpose for obtaining a driver licence, that being that it will substantially improve his prospects of obtaining employment, given that he has the offer of an employment opportunity with a heavy diesel fitter and has indicated that he would be in a better position to be offered that employment if the absolute disqualification was removed.
- [20]In all of those circumstances, I am satisfied that the applicant demonstrated that the order he seeks is appropriate and I can see no reason why such order would not apply from today’s date. So to those reasons, the application is allowed and the order for the absolute disqualification which was imposed on 27 June 2008 is removed as from today’s date, 21 June 2023. That means, Mr Warren, that you will no longer be the subject of that absolute disqualification. You, of course, will be required to obtain a driver licence before you drive on Queensland roads, but you now have the ability to be able to seek to do that. You would be well aware of course though, that you are very much at risk of incurring a further absolute disqualification if you were to breach road rules at any future time, even on minor matters, given your history. So your driving better be impeccable from here on end.
Orders
- Application allowed.
- The absolute disqualification imposed on 27 June 2008 is removed from today’s date, 21 June 2023.