White v QPS[2017] QMC 2

MAGISTRATES COURT OF QUEENSLAND

1. [1]
   Mr White was arrested on 21 December 2016 and charged with having driven a motor vehicle whilst over the general alcohol limit but not over the middle alcohol limit at Mt Morgan.

2. [2]
   He has pleaded guilty to that offence and applies for a restricted driver’s licence under section 87 of the Transport Operations (Road Use Management) Act 1995 (TORUM Act).

3. [3]
   His application is opposed on the basis that he is not a fit and proper person to hold a restricted licence having regard to the safety of other road users and the public generally: section 87(5)(a)(i) TORUM Act. Otherwise he is eligible to apply and satisfies the criteria to obtain a restricted licence.

4. [4]
   The charge and application generally came before me on 8 March 2017 and have adjourned proceedings to today for decision of the application and conviction and sentence.

5. [5]
   Mr White relies on his affidavits dated 13 February 2017 and 8 March 2017 as well as an affidavit from Rebecca Lyn Miller dated 13 February 2017 as evidence to support his application for a restricted driver’s licence.

6. [6]
   Mr White is a 45 year old single man with no dependents.

7. [7]
   He is currently employed by Graham Gosper Grade Hire Pty Ltd on a permanent part-time basis since January 2017.

8. [8]
   He drives a truck and transports other employees and passengers between jobs, Ms Miller indicates if he is not granted a work licence, they would have to cease his employment as he would be unable to perform the work required and no other positions are available.

9. [9]
   The offence took place on 21 December 2016. He had finished working and was drinking at home at Wycarbah when he received a phone call from his sister who lives in Mt Morgan. She indicated she was having an argument with a neighbour and asked him to come over.

10. [10]
    Police were performing random breath testing and the Breath Analysis Certificate indicates he had a blood alcohol concentration (BAC) of .094% when he was driving to his sister’s place in Mt Morgan.

11. [11]
    Mr White has a four page traffic history which was tendered.

12. [12]
    On 28 August 2009 he was convicted in this Court of driving under the influence of liquor or a drug on 28 July 2009 with a reading of .172 BAC.

13. [13]
    On 10 April 2007 he was convicted of driving under the influence of liquor or a drug on 1 February 2007 with a reading of .151 BAC.

14. [14]
    On 11 June 2004 he was convicted of driving under the influence of liquor or a drug on 28 March 2004 with a reading of .233 BAC.

15. [15]
    There are two other high range drink driving charges in his history in 1999 (.189) and 1992 (.23) and two other prescribed concentration; one again in 1999 (.132) and 1989 (.11).

16. [16]
    Mr White was convicted of disqualified driving on 15 July 2011 and 2 July 2010.

17. [17]
    He was convicted of unlicensed driving on 18 December 1989, 20 July 1992 and 1 June 2007.

18. [18]
    On 8 October 1999, when convicted of driving under the influence of liquor he was also convicted of disobeying section 20A licence restriction which was the equivalent to a restricted licence the applicant now seeks.

19. [19]
    There was also eight speeding offences on his traffic history, fail to wear seat belt, use a vehicle label/plate attached recorded as cancelled/lost/stolen/destroyed, permit use registered vehicle drive defective motor vehicle. On 22 July 1992 he was convicted of dangerous driving whilst under the influence.

20. [20]
    There is also a criminal history

21. [21]
    Past conduct, though relevant, is not decisive.

22. [22]
    Mr White, to his credit, has completed a defensive driving course with Peter Ceola Driving Training.

The Law

23. [23]
    Section 87(5)(a)(i) of TORUM Act provides:

1. (5)
   An application for an order under this section must not be granted-

1. (a)
   unless the applicant satisfies the court that hears the application that-

1. (i)
   the applicant is a fit and proper person to hold a restricted licence having regard to the safety of other road users and the public generally; and …

24. [24]
    In Hughes & Vale Pty Ltd v State of New South Wales (No.2) [1955] HCA 28; 93 CLR 127 at p156, the High Court said that the fit and proper person test ‘involved three things’ namely: ‘…[honesty], knowledge and ability: “honesty” to execute it truly, without malice, affection or partiality; knowledge to know what he ought to do; and ability as well as a state as embodied that he may intend and execute his office, when need is, diligently and not for impotency or poverty neglected.’

25. [25]
    It is well established that the ‘question whether a person is fit and proper is one of value judgment’: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63], per Mason CJ who went on to say: ‘…[In] that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’

26. [26]
    The applicant relies on Manitzky v Ryan [2005] QDC 178. His Honour Judge Nase, DCJ traced the ‘fit and proper’ criterion dates back to the fifth century, and its common law application to the 13^th century: His Honour indicated the term usually appears as an essential qualifying requirement for holding an office or for membership of a professional group. “The term normally has connotations of honesty, or moral uprightness, and the possession of any necessary knowledge and ability. The protection of the public and the maintenance of public confidence in the particular profession or occupation may be elements in the term: Barristers Board v Darvenisa 112 A CrimR 438 per Thomas JA. As satisfaction of the fit and proper criterion is a requirement in a variety of contexts, necessarily the term must be construed as limited to the context in which it appears. In this case the section limits the fit and proper criterion to the safety of other road users and the public generally. The ability and knowledge to drive safely are therefore important, as is any demonstrated propensity for unsafe driving. In this case the magistrate was not satisfied the appellant was a fit person to hold a restricted licence because of his conduct in driving on the occasion charged (23 July 2004) in the light of his traffic history, and particularly in light of three speeding breaches incurred on 23 March 2004, 20 February 2004, and 25 January 2004… Whether a bad traffic history or not, it does not reflect on the appellant’s capacity and skill as a driver, although it may reflect on a propensity to drive over the speed limit from time to time… Although I understand the attitude adopted by the magistrate, and her apprehension the appellant might drink drive, or drive recklessly if given a restricted licence, two factors mitigate against that approach. The first is that the appellant is relatively less likely to drink alcohol while working as a taxi driver. The drink driving conviction is not work related, and he has not been convicted of any work related offence involving alcohol. He second is that he has not consumed any alcohol since the date of the drink driving offence (23 July 2004)… The magistrate did not give any weight to the two mitigating factors and as a consequence placed undue weight on the drink driving offence and the appellant’s past traffic history. On balance I think the exercise of discretion in the section miscarried.”

27. [27]
    An applicant will not be a fit and proper person where or she has shown a clear manifestation of a disposition towards criminal behaviour and in the past has shown no great respect for the law: Sobey v Commercial and Private Agents Board (1979) 22 SASR 70.

28. [28]
    In Hamrey v Hoy, (Unreported District Court, Skoien CDJ; 19/6/1987; Appeal No 79/1987), Hoy was convicted on 30 April 1987 of driving under the influence of liquor and applied for a provisional licence filing an affidavit which stated he needed a licence to carry out his employment as an electrician, and had no convictions against section 16 in past five years.  He also set out his family income and expenditure. In cross examination, it was revealed that he had two previous convictions in the ACT in 1978 and 1973 for drink driving. His Honour when considering whether Hoy was a fit and proper person stated that “after pointing out the need to deter others records the appellant’s two prior drink driving convictions and notes that this conviction, the third, could not be described as an aberration of character. On the contrary, the magistrate considered those facts indicated to him that the appellant was irresponsible and inconsiderate to other road users and he declined to find he was a fit and proper person… I am not persuaded that the magistrate was wrong in coming to that conclusion… I consider that three drink driving offences in a space of 13 years or so would fail to instil in me and real confidence in the appellant as a responsible driver.”

29. [29]
    In Cavanagh v Gorman, Unreported District Court Brisbane, 19 January 1989; Shanahan DCJ indicated the following factors are relevant and material and should be considered the by court:

1. (i)
   The appellant’s general character;

2. (ii)
   The appellant’s driving history;

3. (iii)
   The appellant’s attitude towards responsibility;

4. (iv)
   The whole history of the case – the nature of the offence, the manner in which the section was breached. It should be remembered that these circumstances are not the only criteria;

5. (v)
   The appellant’s employment situation, responsibilities and obligations that may be affected by a refusal to direct that a provisional licence be issued;

6. (vi)
   The use to which a provisional licence will be put and the possible duration of that use;

7. (vii)
   Whether the appellant would be likely to re-offend eg. Drink and drive whilst he was the holder of such a provisional licence.

There may be other relevant factors depending on the circumstances of the particular case.

Conclusion

30. [30]
    Mr White is a truck driver and plant operator from which he derives his livelihood. He was driving a motor vehicle when intercepted by Police when driving to his sister’s residence in Mt Morgan from his residence.

31. [31]
    As Mr White indicates, his traffic is appalling.

32. [32]
    Whilst he has not had his licence suspended, disqualified or cancelled in the last five years he was not eligible to obtain a driver licence till 14 July 2014 because of the disqualification imposed by this Court on 15 July 2011.

33. [33]
    The Court is not limited to considering the last five years of the traffic history in consideration of whether a person is a fit and proper person.

34. [34]
    In assessing the likelihood that the applicant will reoffend, the following considerations are relevant

• The length of time since the offences were committed and the circumstances in which they were committed;
• Whether the Applicant admits responsibility for the offences and his genuine remorse;
• The efforts the Applicant has made to rehabilitate himself or herself during that time;
• Any change in the Applicant’s circumstances such as increased support from friends, family or professional service providers.

35. [35]
    The case here is distinguishable from Manitsky (supra) who had no criminal convictions and no previous traffic convictions involving alcohol. Hamrey v Hoy (supra) on the other hand is comparable.

36. [36]
    Mr White admits responsibility for the offence by pleading guilty and the plea is indicative of remorse.

37. [37]
    Whilst completing a defensive driving course mitigates some of my concern, the material does not address his drinking of alcohol to excess. With such a history with high BAC readings suggests the Applicant has issues with alcohol and the material before me does not indicate if and when that has been addressed and the support available to him.

38. [38]
    Manitsky was successful partly because he had not consumed any alcohol since the date of the drink driving offence and gave no undertaking to the Court not to drink alcohol during the currency of any restricted licence.

39. [39]
    The material before me does not indicate how many drinks the Applicant consumed and what he was drinking. I find it difficult to accept, with his history, that he was surprised by the reading. Self-assessment is the poorest method of calculating your BAC. It is common knowledge the general rule of thumb is that two standard drinks in the first hour will raise your BAC to 0.05%, and one standard per hours thereafter will maintain that level.

40. [40]
    Further, the label on a package of an alcoholic beverage must include a statement of the number of standard drinks in the package.^[1]

41. [41]
    I consider the previous five high range drink driving offences and two other drink driving offences together with breach of a previous work licence and two disqualified driving^[2] charges in a space of 18 years or so would fail to instil in me any real confidence in the Applicant as a responsible driver.

42. [42]
    Mr White’s two disqualified driving charges shows disregard to the legal prohibition and disdain for the public’s safety: See R v Hey; ex parte A-G (Qld) [2006] QCA 23 per Chesterman J.

43. [43]
    The application is refused.

Mark Morrow

Acting Magistrate