Capes v Commissioner of Police [2025] QDC 95

1 DISTRICT COURT OF QUEENSLAND CITATION: Capes v Commissioner of Police [2025] QDC 95 PARTIES: CAPES, Jayden Andrew (applicant) v Commissioner of Police (respondent) FILE NO/S: D49 of 2025 DIVISION: Civil PROCEEDING: Application pursuant to s 131(10) of the Transport Operations (Road Use Management) Act 1995 DELIVERED ON: 11 July 2025 DELIVERED AT: District Court at Maroochydore HEARING DATE: 4 July 2025 JUDGES: Long SC DCJ ORDER: The orders made on 5 August 2021, absolutely disqualifying the applicant from holding or obtaining a driver licence, are removed. CATCHWORDS: APPLICATION – Removal of absolute driver licence disqualification per s 131(10) of the Transport Operation (Road Use Management) Act 1995 (Qld). LEGISLATION: Transport Operations (Road Use Management) Act 1995 ss 131(10) and 131(14) CASES: Anderson v Commissioner of Police [2021] QSC 254 Willocks v Commissioner of Police [2023] QDC 29 COUNSEL: F Cardell (sol) for the applicant M Forrest (legal officer) for the respondent SOLICITORS: Aitken Whyte Lawyers for the applicant Queensland Police Legal Services for the respondent -- 1 of 12 -- 2 Introduction [1] By application filed 13 May 2025, the applicant applies, pursuant to s 131(10) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”), for the removal of the absolute disqualification of his ability to hold or obtain a driver licence, as that order was made as part of his sentence imposed on 5 August 2021. [2] On that date, the applicant was sentenced in the District Court at Brisbane to serve terms of five years imprisonment for each of the offences of dangerous operation of a vehicle whilst excessively speeding and with two relevant prior convictions and unlawful entry of a motor vehicle with intent to commit an indictable offence in the night with violence in company. He was also sentenced in respect of a further offence of dangerous operation of a vehicle with prior convictions, to a term of two years imprisonment; for the offence of unlawful use of a motor vehicle, to a term of 18 months imprisonment; for each of two offences of disqualified driving, terms of 12 months imprisonment were imposed and for each of two evasion offences (pursuant to s 754(2) of the Police Powers and Responsibilities Act), terms of six months imprisonment were imposed. Pre-sentence custody, totalling 321 days from 18 September 2020 to the date of sentence, was declared as time taken to be served and the parole eligibility date was fixed at 18 March 2022. [3] The further aspects of the sentencing orders were in respect of the driver licence disqualification, in the case of the dangerous operation of a vehicle offences, in each case, the order was for absolute disqualification and in respect of the evasion offences, the order was for disqualification for a period of two years. [4] The only subsequent entry in the applicant’s criminal history relates to his sentence in the Pine Rivers Magistrates Court on 26 August 2021 for a further offence of unlawful use of a motor vehicle on 17 September 2020, with a result that he was convicted and not further punished. The Application [5] The application is essentially premised upon considerations as to the applicant’s conduct since he was sentenced and particularly since his release into the community under parole supervision on 21 March 2022. In particular, he points to material in -- 2 of 12 -- 3 support of a proposition that, at the age of now 30 years, he has stabilised his life circumstances, in contrast with those were reflected in his prior offending. More particularly, there is reliance upon material supporting the following considerations: (a) the completion of a drug intervention program (as was noted to be engaged at sentencing) before release on parole and the absence of any ongoing issue as to drug use (save for the detection of medically prescribed cannabis shortly after his release from custody), including upon submission to random drug testing under parole supervision; (b) the absence of any reoffending or any breach of parole supervision over a period now in excess of three years and three months; (c) the obtaining of employment and presently, as from April 2024, as a stores person with Alspec Aluminium. That employment is upon a fulltime basis, paid at an hourly rate and depending upon overtime worked, resulting in earnings of approximately $870 to $1,000 per week. Emphasis is placed upon the early gaining of more responsibility in that employment, in the context of the applicant being awarded the recognition of “2024 National Rookie of the Year” with his employer. As discussed further below, his current inability to drive places some restrictions on his ability to earn income and as is supported by his employer, his further advancement in that employment would be facilitated by an ability to obtain a driver licence, including in respect of a truck driver licence; (d) At the time of making his application, the applicant resided in shared rented accommodation and he also deposed to difficulties in respect of maintaining contact with and having the care of his two year old son, due to reliance upon a cooperative former partner to facilitate that occurring. However, at the hearing of the application, it was acknowledged that there had been a recent resumption of this relationship, such that this difficulty is presently mitigated, although still reliant upon the support of his partner; and (e) in October 2024 he completed a Queensland Traffic Offenders Program. -- 3 of 12 -- 4 Discussion [6] As considerations particularly informing the primary position taken by the respondent in opposition to this application, it is necessary to have regard to the applicant’s prior offending history and the particular seriousness of the offending which attracted the sentence which has been noted as imposed on 5 August 2021, including the absolute driver licence disqualification which is the subject of this application. All of the offending for which the applicant was then sentenced, together with his younger brother Rikky, had occurred on 17 September 2020. It is convenient to note the description of the sentencing judge as to that offending and the relevant context of the applicant’s prior criminal and traffic history: “On the 17th of September 2020, you were both in a stolen motor vehicle, a Lexus. Jayden, you were driving and, Rikky, you were seated in the passenger seat. At 7.46 pm, Polair sighted the car on the Pacific Motorway at Mount Gravatt. Police thereafter attempted to intercept the car, however a pursuit occurred. Jayden, you were driving the car up to 220 kilometres per hour on the Pacific Motorway. On other arterial roads and residential streets, you weaved the car in and out of lanes. You ran red lights, mounted the footpath in order to get past other cars and drive on the wrong side of the road. Through the Clem 7 tunnel, where the speed limit was 80 kilometres per hour, you drove at an average speed of 176 kilometres per hour. You continued driving in a dangerous manner on the north side of Brisbane, again running red lights. At one stage, you drove for two minutes at high speed on the wrong side of the road, forcing others to take evasive action. At Bald Hills, police were able to successfully deploy tyre deflation devices, however you continued to drive the car until you came upon two people driving in a Corolla. You cut that vehicle off, causing it to stop. You both then got out of the Lexus and approached the two complainants, demanding the car. You, Jayden, grabbed the woman who was driving the car by the collar and pulled her out of the car. The other complainant, her brother, got out of the car of his own volition and you, Rikky, got into that car. Jayden, you then drove the Corolla away, again with police pursuing you. You drove at high speed and lost control of the car at Narangba, colliding with a power pole. You, nonetheless, continued to drive into the intersection against the red lights, mounting a traffic island and then colliding with the traffic pole. You then fled the vehicle, leaving your brother inside the vehicle. You were located by police a short distance away. The distance over which your driving occurred in relation to the Lexus was 43 kilometres. You both declined to participate in an interview, and you were both remanded in custody. Jayden, you were 25 at the time of the offences and you are 26 years of age now. You have a relevant criminal and traffic history. You were first convicted -- 4 of 12 -- 5 of failing to stop whilst you were a disqualified driver in December 2017. You were fined $7000 and your license was disqualified for two years. You committed the first offence of unlawful use of a motor vehicle one month later. That was a stolen motorbike and you were fined $1000 for that offence. On the 20th of September 2018, you were sentenced in relation to two counts of failing to stop, two counts of dangerous operation of a vehicle, three counts of unlawful use of a vehicle, another count of failing to stop and entering premises and committing an indictable offence. You drove a stolen car on the 4th of June 2018. You then, on the 11th of June 2018 – only seven days later – were driving a stolen motorbike and you failed to stop when directed by police. You then committed the entering premises and stealing and wilful damages charges on the 14th of June 2018, where you broke into the holding yard in order to steal the same motorbike which had been seized from you. You then used that motorbike on various dates between the 14th and the 24th of June 2018. On the 7th of July 2018, you were engaged in a pursuit. You were driving from police. You were speeding through a red light and you were charged with dangerous operation and failing to stop offence and then, again, the following day in a separate event you were found driving from police. You drove at speed. You cut in front of a police bike and you were weaving in and out of traffic. That gave rise to the dangerous operation of a motor vehicle and fail to stop charge. You were sentenced on the 20th of September 2018 to 18 months imprisonment with a parole release date after you had served four months. At the time of the driving offences, you were disqualified from driving and you drove with, it seems, drugs present in your system. You were released on parole on the 19th of November 2018 and then committed an offence of disqualified driving on the 26th of November 2018, which was seven days after your release from jail. You were also, on that occasion, dealt with for a stealing and a receiving charge and you were sentenced to 12 months imprisonment with a parole eligibility date, given that you had committed the offences whilst on parole, after serving two months. You were released on parole at or around the date of your parole eligibility date and you did not breach your parole. That sentence expired in January 2020. You were disqualified from driving at the time you committed the offences before me.”1 [7] The applicant acknowledges the seriousness and implications of his past offending behaviour. But he seeks to support his contention as to the effect of the custodial component of his sentence, in motivating his separation, upon release into the community, from past adverse influences in terms of associates, including family and use of illicit substances.2 He particularly seeks to support his attention to his 1 Affidavit of M, Forrest filed 30/06/2025, MAF-11, pp 58 (line14) – 59 (line 35). 2 As were noted influences when he was sentenced: Affidavit of M, Forrest filed 30/06/2025, MAF-11, pp 60 (lines 33 – 47). -- 5 of 12 -- 6 rehabilitation, by stabilizing his life and the progression of his employment, by material from his employer and his partner and her father.3 [8] It may be accepted that the material in support of this application does support the applicant’s contention that he has recognised and sought to separate himself from a dysfunctional upbringing and background, as that and particularly a consequential descent into the abuse of methylamphetamine, were factors underpinning his past offending. The more objective features, as may be accepted, are that the applicant: (a) has been subject to the absolute disqualification order for almost four years and may be expected to successfully complete his parole order on 17 September 2025; (b) has not driven a motor vehicle since September 2020; and (c) after serving the 18 months immediate custody required in respect of his period of five years’ imprisonment, he was released on parole on 21 March 2022 and in the ensuing period of more than three years and three months, he has not reoffended and has demonstrated an ability to live and be employed productively in the community. [9] Despite the absolute disqualification orders being part of the sentence imposed on the applicant on 5 August 2021, s 131(10) of the TORUM permits of an application for removal of such a disqualification “at any time after the expiration of two years from the start of the disqualification period”. Here that period commenced almost four years ago, on 5 August 2021, with this application having been filed after the period of about three years and nine months disqualification. [10] The determination of such an application is informed by s 131(14) of the TORUM, in that: “… 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 a date as may be specified in the order or refuse the application.” 3 See: Ex. JC2 to the affidavit of J Capes filed 13/5/25 and Ex. 1: references of J and AD Anderson (albeit that this material has been received, without objection, in unsworn form). -- 6 of 12 -- 7 [11] As effectively noted in Anderson v Commissioner of Police,4 in reference to observations made in other decisions of this Court, a favourable response to such an application will be upon reasonable satisfaction that it is proper, or appropriate, to dispense with the original determination as to the imposition of the disqualification as an appropriate part of the sentence of an offender, particularly in recognising that an applicant’s subsequent conduct may be influential as to any determination as to whether a privilege ordinarily enjoyed and often required in the community, might be returned. Particularly, it may be added, where the reinstatement of that privilege may be seen as serving to facilitate positive reintegration into the community and rehabilitation from offending behaviours. As was a particular observation in the Anderson decision: “It has been observed that ‘[l]ong periods of disqualification from driving may prove a very severe handicap to a man when he comes out of prison and desires to pursue a different type of life to that which has led him into that prison’. That hardship, and the interests of an offender in having their licence restored must, however, must be balanced against the interests of the community both in terms of ensuring an offender is appropriately punished and “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, in this case, including police officers who were carrying out their lawful duty, in service of the community, at the time.”5 Usually and as was expressly noted by the sentencing judge in this instance,6 a disqualification order will be directed at achieving the sentencing purpose of just punishment, including in achieving deterrent effect, and also the protection of the community from the prospect of further offending. And there is little difficulty, having regard to that offending and the contextual offending history of the applicant, in appreciating the appropriateness of those disqualifications to those purposes, at the time of his sentencing. [12] Although not referenced to the observations made in Anderson (but with specific reference to some of the other cases to which reference was there made), in Willocks v Commissioner of Police,7 I made the following observations as to the exercise of the power given to the Court: 4 [2021] QSC 254, [24]-[28]. 5 Ibid at [24]. 6 Affidavit of M, Forrest filed 30/06/2025, MAF-11, p 61 (lines 20 – 38). 7 [2023] QDC 29, [10]-[13] (citations omitted, but with notation of a typographical correction). -- 7 of 12 -- 8 “[10] As I sought to note in Devine v Commissioner of Police: ‘[4] The discretion which is allowed to the court upon any such application and by s 131(14) of the TORUM, is as to “either by order remove the disqualification as from such date as may be specified in the order or refuse the application”. As is further stated in the subsection, that discretion is to be exercised: “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”. [5] As has been variously noted in other instances when this court has been called upon to consider such applications, the identified factors require consideration of the offending for which the disqualification was imposed, the applicant’s demonstrated character generally and particularly conduct subsequent to the order. [6] It is for the applicant to satisfy this Court that it is now appropriate to dispense with the disqualification considered appropriate at the time of and as part of the applicant’s sentence, or punishment. And that an important aspect of any such application may be as to the demonstration of the extent to which the purpose of an applicant’s sentence in achieving the rehabilitation of an offender has been achieved and may be fostered by allowance of the application. [7] However and as is also noted in Porter v Commissioner of Police, underlying considerations include what may be recognised as a significant community interest in the safety of all road users. As there noted, that interest may be met by the imposition of lengthy or permanent driver licence disqualification, at least, until and unless the court may be satisfied that an applicant is prepared to conduct himself or herself in accordance with community expectations.’ (citations omitted) [11] Accordingly, the application is not simply determined, as was the written submission of the respondent, upon consideration as to “whether the applicant has provided legitimate and sufficient reasons to satisfy the court, on the balance of probabilities, that it is proper to dispense with the trial judge’s finding that the absolute disqualification was appropriate”. Whilst that formulation may be seen as an adoption of words used in Slivo v Commissioner of Police, they are there immediately followed by the observation that the onus is upon an applicant to “satisfy the court that it is proper to remove the disqualification” and subsequently in that decision it is also observed that: ‘[39] 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 -- 8 of 12 -- 9 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.’” [12] As was noted in Devine, the question is rather whether it is now determined that it is no longer appropriate to maintain that disqualification. Or put in more positive terms, whether it is appropriate or proper to dispense with it, by again allow[ing] the applicant the benefit of ability to obtain a driver licence. Necessarily, that question arises in the context of the prior determination of appropriateness of the order of disqualification, as part of the sentence imposed for the antecedent offending. But and as noted for the applicant, it is to be recognised, as was observed in Re Moore, that the imposition of a period of disqualification has both punitive and protective aspects and that consideration of an applicant’s contemporary circumstances may mean that the “protective aspects of the order of disqualification are not subverted by allowing him the opportunity to obtain a drivers’ licence at that point”, including where the ability to obtain a drivers licence “will contribute to [the applicant’s] continued re-integration into the community”. [13] The considerations mandated in s 131(14) will necessarily present competing issues and therefore the need to strike a balance in the determination as to whether it is proper to allow an applicant to again have that ability. In Devine, I sought to note what appeared to be the essence of the balance sought to be achieved, by reference to some particular notations made in earlier decisions, as follows: ‘ [20] As is noted in Slivo v Commissioner of Police, in reference to earlier observations made in Morgan v Commissioner of Police, the difficult task of the Court is in balancing the: ‘interests of the applicant in having his or her licence restored with those of the community and not prematurely sanctioning the right of an offender to resume driving after committing a serious offence which placed in jeopardy the safety of members of that community’. [21] Whilst, as has been noted, that task involves some assessment as to the extent to which the punishment and therefore deterrent effect involved in the disqualification, has been endured, a further purpose of such an order may be the protection of the community from the prospect of further driving offending, such as may jeopardise the safety of -- 9 of 12 -- 10 members of the community. The latter considerations are necessarily related to the issue of the offender’s rehabilitation.” (citations omitted)”’ [13] Another point which the respondent notes from the decision in Willocks,8 is that something more is required than pointing to the inconvenience of the disqualification, as that may be regarded as an expected incident of such an order. In this instance and whilst the applicant does point to the difficulties which attend his interactions with and responsibilities for care of his son and in having to rely on the exigencies of public transport or the assistance of others in respect of his attendance at work, he also, with the support of his employer in particular, points to the prospect of facilitation of his ongoing rehabilitation by advancement of his employment, in particular, by ability to obtain a driver licence and in due course a licence for truck driving. [14] The force of the applicant’s position was recognised in the alternative submission, advanced in writing for the respondent, that whilst accepting that “it is open to the Court to consider that there are legitimate and sufficient reasons in support of the application” but drawing attention to the ability of the Court to make an order permitting the applicant to obtain a driver licence at a stipulated future date. However, there is some difficulty with the further submission as to how that power might be exercised in this instance, in terms that: “… the Respondent submits that the Applicant serve the remainder of his parole and have a minimum period of twelve months in the community not under the supervision of parole before regaining his licence. This would afford the Applicant the opportunity to demonstrate further positive conduct subsequent to the ending of the parole order.” [15] The Court must now determine this application and the fixing of a date substantially into the future may be problematic and particularly so, if it is premised upon the reasoning pressed in the last sentence of the extract of the respondent’s submission, as there would be no opportunity for the Court to review what has been subsequently demonstrated. Clearly if the Court is persuaded to now make an order, it is to be premised upon what is to be expected and if that expectation is falsified in any given 8 [2023] QDC 29, [14]. -- 10 of 12 -- 11 case, then the offender’s history will necessarily inform how any subsequent infringements are dealt with. As I observed in Willocks, as to the potential utility of the power to set a future date, in the context of the necessary understanding of the effect of s131A(15), being that, in the event of refusal of an application, a further application “shall not be entertained if made within 1 year after the date of refusal.”: “For each of the parties, attention is drawn to the power of the court to now fix a point, in the future, when the disqualification is to be removed. As was the case in Devine, that power may be useful in some instances, but an obvious difficulty in now making an order that is significantly delayed in having effect, is that it can only reflect an understanding of the current circumstances and an expectation, which may well be falsified, of no significant change occurring before it becomes effective. Accordingly, much may depend upon the strength of the material supporting such an expectation and it can be observed that it may be a useful device where the considerations are finally balanced and where a short postponement will serve to adequately reinforce particularly the punitive purpose for which the disqualification was originally ordered.”9 [16] It was also pointed out for the applicant, in reference to the driver licensing regulations and without contradiction on the hearing of this application, that in the event of the application being allowed, he confronts having to first obtain a learner licence and success in steps involved over at least two years before he could achieve any goal as to obtaining licencing for truck driving. Conclusion [17] The material before the Court supports conclusions that the punishment of the applicant under the sentence imposed on 5 August 2021 has been very substantially effected and that the position, as demonstrated over a substantial period, is now in stark contrast to that which pertained at sentence. It appears that the sentence has had particular effect on the applicant in terms of personal deterrence of further offending and in attention to his rehabilitation. More particularly, it should now be concluded that the ability of the defendant to obtain a driver licence is likely to facilitate and advance that rehabilitation and what has been demonstrated as to his ability to positively engage in the community. 9 [2023] QDC 29, [16]. -- 11 of 12 -- 12 [18] Accordingly, the appropriate conclusion is that it is proper to allow this application, with the order that the orders made on 5 August 2021, absolutely disqualifying the applicant from holding or obtaining a driver licence, are removed. -- 12 of 12 --