Devine v Commissioner of Police [2020] QDC 329

DISTRICT COURT OF QUEENSLAND CITATION: Devine v Commissioner of Police [2020] QDC 329 PARTIES: DALLAS JOHN DEVINE (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO: D190/2020 PROCEEDING: Application ORIGINATING COURT: District Court of Queensland DELIVERED ON: 17 December 2020 DELIVERED AT: Maroochydore HEARING DATE: 11 December 2020 JUDGE: Long DCJ ORDER: The absolute disqualification of the applicant’s ability to hold or obtain a driver licence is removed as from 6 April 2021. CATCHWORDS: APPLICATION – Removal of absolute driver licence disqualification per s 131(10) of the Transport Operation (Road Use Management) Act 1995 (Qld) LEGISLATION: Transport Operation (Road Use Management) Act 1995 (Qld), ss 131(10) & (14) CASES: Slivo v Commissioner of Police [2016] QDC 46 Tabakovic v Commissioner of Police [2009] QDC 191 Porter v Commissioner of Police [2010] QDC 274 Morgan v Commissioner of Police [2007] QDC 10 SOLICITORS: Appellant self-represented J.Broadbent (QPS Legal Unit) for the respondent -- 1 of 6 -- 2 Introduction [1] On 9 November 2018 the applicant was disqualified absolutely from holding or obtaining a driver licence, as part of his sentence, after he had pleaded guilty to an offence, committed on 16 April 2017, of dangerous operation of motor vehicle causing grievous bodily harm whilst intoxicated. [2] Otherwise, he was sentenced to five years imprisonment for this offence and concurrent terms of four months imprisonment were imposed for offences of stealing, committed on 26 August 2017, and fraud, committed between 25 and 29 August 2017, which were dealt with summarily pursuant to s 651 of the Criminal Code. Presentence custody of 337 days, from 7 December 2017 to 8 November 2018, was declared as time served and a parole eligibility date was fixed as 6 August 2019. [3] This application was filed on 9 November 2020 and is brought pursuant to s 131(10) of the Transport Operation (Road Use Management) Act 1995 (“TORUM”), for removal of that disqualification, which is permitted to be made “at any time after the expiration of two years from the start of the disqualification period”. [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.1 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 1 See Slivo v Commissioner of Police [2016] QDC 46. -- 2 of 6 -- 3 sentence in achieving the rehabilitation of an offender has been achieved and may be fostered by allowance of the application.2 [7] However and as is also noted in Porter v Commissioner of Police,3 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. [8] The applicant is aged 51 years and this application is made with particular emphasis upon his efforts towards rehabilitation since his sentence and upon his release to parole on 6 August 2019. He frankly concedes that if his life history up until he was sentenced were the only consideration, he would not expect a favourable outcome. His application is heavily premised upon what is contended as his commitment towards making a better and responsible life for himself and the community. [9] The applicant’s traffic record, dating back to 1991, could not be described as good, in that there are many offences, until April 2017, of driving at excess speed. However, it is only particularly notable in that there were earlier offences of drive under the influence of drugs, on 9 June 2014, and dangerous operation of a motor vehicle whilst effected by an intoxicating substance, on 14 April 2011, and an instance of disqualified driving, albeit committed in February of 1991. [10] His criminal history is a significant one, dating from 1989 to 2017. It contains many drug related offences, including an entry in respect of his being sentenced in the Supreme Court at Brisbane, on 23 March 2001, for offences including trafficking in dangerous drugs, for which five years imprisonment with a recommendation for parole consideration after two years was imposed. Subsequently and despite other instances of mainly drug and dishonesty offences, including some committed subsequently to the offence for which the current disqualification was ordered, he was not subjected to any sentence involving any actual custodial component, until his current sentence was imposed on 9 November 2018. That is also the last entry in his criminal history. 2 Cf Tabakovic v Commissioner of Police [2009] QDC 191. 3 [2010] QDC 274. -- 3 of 6 -- 4 [11] As far as the details of it are disclosed in the material, his driving offence must be regarded as serious. His driving, at about 9pm on 16 May 2017, in a drugged state was the underlying cause of his car being driven into the rear of another car on the David Low Way at Coolum and in turn, forcing that car into further collision with oncoming traffic. A particularly serious consequence was the infliction of life threatening injury to the driver of the other vehicle, in the nature of a lacerated liver and lung, and also broken ribs and pelvis and various lacerations. [12] On the other hand, the applicant has produced sufficient material to confirm that during his incarceration he has made significant steps towards facilitating his rehabilitation. He has undertaken further education in literacy and numeracy and in obtaining various vocationally aimed qualifications or certificates. He had also sought to engage with various agencies for assistance as to his drug addiction and life skills. Since his release to parole he has: • Completed the Queensland Traffic Offenders Program; • Engaged with Narcotics Anonymous; and • Engaged with treatment under the guidance of a psychiatrist in Hervey Bay. [13] The application is supported by multiple referees, in attestment to observed changes in the applicant’s attitudes and behaviours and in particular his attention to involvement with Narcotics Anonymous. Indeed, it is the applicant’s desire to be more involved with that organisation, with an ultimate view to also assisting in the rehabilitation of others, which is at the forefront of his application. He also points to what may be accepted as the additional burden of living in a regional area, in the Wide-Bay, without a driver license and his desire to be able to provide more assistance to his elderly parents and for assistance in respect of potential employment opportunities. However and in respect of such employment opportunities, there is nothing specific identified in the material, apart from evidence relating to enquiries about offering himself for volunteer work with organisations such as Lifeline. [14] The respondent’s position is stated to be one of neither opposing nor consenting to the application. It can be observed that in understanding that the determination of the application is by exercise of discretion by the Court, it is not amenable to any notion of the respondent simply consenting to the order or it even being decided simply with -- 4 of 6 -- 5 the consent of the respondent. From the Court’s perspective, the effectively neutral position taken is not as helpful as, if might be anticipated, some more definite submissions as to what may be an appropriate exercise of discretion were made. However, what may be observed is that there is no stated opposition to the application and more positively, it is observed that: • “There appears to be a change in the applicant’s character, as to that which he displayed in 2017”; and • “The respondent acknowledges that the applicant has not been charged with any offences nor is there any evidence that the applicant has driven a motor vehicle since the disqualification was imposed.” [15] The respondent has drawn attention to material relating to a police check, where the applicant was identified by police at about 2:30am on 10 October 2019, outside premises which were not his identified place of residence and therefore apparently in breach of a curfew condition imposed for the first three months of his parole. The respondent has brought this to the attention of Corrective Services and it is confirmed that due to the time which has passed and the applicant’s subsequent compliance with parole, no action is to be taken. [16] The applicant has sought to explain the consequent concern raised by the Court with him, as to his bald statement at paragraph 29 of his affidavit in support of his application, that he “had not breached any of his parole conditions”, as effectively being an overstatement by an unrepresented litigant, meant to convey that no breach action had been taken against him. As unfortunate as this may be in respect of the applicant’s involvement in the matter disclosed by the respondent, for present purposes it may be accepted as being, as appears to have been accepted by the authorities, overwhelmed by his subsequent compliance with parole. [17] The critical competing considerations in this case are representative of factors which are well-recognised in other cases to which attention has been drawn. On the one hand, there is the community interest in supporting and fostering the rehabilitation of the applicant. And it must be noted that there are promising signs in that regard. [18] On the other hand there is the consideration that the order was part of the sentence and therefore punishment of the applicant and he has applied for removal, promptly -- 5 of 6 -- 6 at the point of being qualified to do so, after two years. But it must be noted that a point of such an order is that inconvenience will be a consequence and also that no such impact occurred whilst the applicant remained in custody for some nine months after sentence. [19] Although the applicant also points to not being able to drive after he was charged and until sentence, he was also in pre-sentence custody from 7 December 2017. In any event, that circumstance pre-dates the order made as part of the sentence and therefore is deserving of little weight in consideration of the application for subsequent removal of it. [20] As is noted in Slivo v Commissioner of Police,4 in reference to earlier observations made in Morgan v Commissioner of Police,5 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 members of the community. The latter considerations are necessarily related to the issue of the offender’s rehabilitation. [22] In the circumstances of this case, the ongoing promise of the efforts undertaken by the applicant towards his rehabilitation should be recognised by providing him encouragement and hope for the future, by allowing him to again obtain a driver licence. But particularly having regard to the extent to which the punishment inherent in the order has been endured to date, that will be allowed as from 6 April 2021. 4 [2016] QDC 46, at [32]. 5 [2007] QDC 10. -- 6 of 6 --