Cody v The Commissioner of the Queensland Police Service [2017] QDC 237

DISTRICT COURT OF QUEENSLAND CITATION: Cody v The Commissioner of the Queensland Police Service [2017] QDC 237 PARTIES: BILLY JAMES CODY (Applicant) v THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: D 53/2017 DIVISION: Criminal PROCEEDING: Application pursuant to s 131(2) of the Transport Operations Road Use Management Act 1995 ORIGINATING COURT: District Court at Ipswich DELIVERED ON: 26 September 2017 DELIVERED AT: Ipswich HEARING DATE: 26 September 2017 (on the papers) JUDGE: Lynch QC DCJ ORDER: 1. The disqualification imposed on 12 June 2014 upon Billy James Cody from holding or obtaining a driver licence is removed as from the date of publication of these reasons. 2. No order as to costs. CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES –DANGEROUS OPERATION CAUSING DEATH OR GRIEVOUS BODILY HARM – where applicant’s licence was disqualified on 12 June 2014 for four years as part of sentence after pleading guilty to dangerous operation of a vehicle causing death and grievous bodily harm whilst adversely affected by an intoxicating substance – where applicant served a total of 19 months imprisonment – where applicant applies under s 131(2) of the TORUM for removal of the disqualification – whether it would be a proper exercise of the judicial discretion under s 131(2C) to remove the applicant’s licence disqualification – orders made on the papers -- 1 of 8 -- 2 Transport Operations (Road Use Management) Act 1995, s 131 Tabakovic v Commissioner of Police [2009] QDC 191 SOLICITORS: McNamara & Associates for the applicant Queensland Police Service Legal Unit for the respondent Application [1] This is an application pursuant to s 131 (2) of the Transport Operations (Road Use Management) Act 1995 (the Act), for an order that the balance of the applicant’s licence disqualification be removed. [2] It is appropriate to make the order sought for the reasons set out below. Circumstances of licence disqualification [3] The applicant, Billy James Cody was, on 12 June 2014, disqualified from holding or obtaining a driver licence for a period of 4 years. This was consequent upon the applicant pleading guilty to a charge of dangerous operation of a vehicle causing death and grievous bodily harm whilst adversely affected by an intoxicating substance. For that offence the applicant was sentenced to 5 years imprisonment with parole eligibility from 11 December 2015 (i.e. after 18 months). [4] The offence occurred on 10 August 2012. The circumstances of the applicant’s dangerous driving were described in detail by the sentencing Judge. A transcript of her Honour Judge Bradley’s sentencing remarks are exhibited to the applicant’s affidavit. [5] Judge Bradley recorded that prior to the offence, the applicant drove from his family home in Ipswich to Noosa in a state of “extreme emotional turmoil and anxiety”1 with the intention of committing suicide by consumption of prescription medication and alcohol. The applicant left a suicide note at his home. After that attempt, the applicant commenced driving away from Noosa, still adversely affected by the drugs and alcohol he had consumed. The applicant then drove for a distance of approximately 13 kilometres. It was alleged the applicant drove dangerously over a distance of about 2 kilometres, culminating in the fatal collision.2 [6] The relevant events occurred when the applicant was driving in a westerly direction on the Cooroy Noosa Road. The applicant’s course of dangerous driving included: overtaking another vehicle at speeds up to 100 kph in an 80 kph zone, pulling in front of another car, weaving from side to side, overtaking on a blind corner at speed, and crossing double white lines to overtake other vehicles. The applicant appeared agitated when unable to overtake cars in front of him. The collision occurred when the applicant pulled onto the wrong side of the road to overtake whilst approaching a blind spot. The applicant’s vehicle collided head on with a vehicle travelling east, and whilst the applicant’s vehicle was completely on the wrong side of the road. The driver of that 1 R v Cody, unreported, District Court of Queensland, Bradley DCJ, No 543 of 2014, 12 June 2014 at page 2 line 44. 2 Ibid at page 2 lines 5-10; page 2 line 42 – page 3 line 13. -- 2 of 8 -- 3 vehicle was killed and his passenger very badly injured. The applicant’s vehicle then collided with a second vehicle which was also travelling east. Two occupants of that vehicle were injured, resulting in their being hospitalised overnight.3 [7] Victim impact statements detailed the “profound and long lasting” effect of the collision upon the families of the deceased driver and his injured passenger. The daughter of the deceased driver experienced “extreme grief and loss”. The injured passenger’s life changed “irreversibly” as a result of her “terrible injuries”.4 [8] Her Honour Judge Bradley was satisfied the applicant had attempted to take his own life, and at the time of the collision was still affected by drugs and alcohol and therefore had little recollection of events. Her Honour concluded however, that the applicant had voluntarily ingested those substances, knew they would affect his ability to drive, but nevertheless made a choice to do so.5 Her Honour noted the applicant was, at the relevant time, the holder of a provisional licence which prohibited him from consuming any alcohol before driving.6 Her Honour described the consequences of the applicant’s conduct as “shocking”, “horrific” and “terrible”.7 [9] Judge Bradley described the applicant’s personal circumstances. The applicant was aged just over 18 years at the time of the offence.8 He was studying engineering at university and, prior to the offence, had been a very high achiever academically.9 References confirmed the applicant and his family were well regarded and the applicant’s family continued to support him. The applicant had no prior criminal convictions and his only traffic conviction was a subsequent, relatively minor, speeding offence. [10] Subsequent to the collision, the applicant was diagnosed as suffering from autism spectrum disorder, and at the high end of the spectrum. Dr Hangar (psychiatrist), reported the applicant had “a disorder that tends to separate you from the rest of the world and suicidal ideation is common”. Dr Hangar described the applicant’s state of mind at the time of the offence as “seriously suicidal. … He certainly did not intend to harm anyone else. This had to do with his own private world of misery and he wanted out.” Dr Hangar described the applicant as “highly intelligent and gifted in some areas”. After this diagnosis, the applicant engaged in appropriate therapy, including some 19 sessions with a psychologist.10 [11] Judge Bradley accepted the applicant did not intend to harm anyone else and had made genuine efforts to address his condition and further his own rehabilitation. Her Honour was satisfied the applicant understood the consequences of his conduct and was genuinely remorseful.11 Judge Bradley did not regard the commission of the subsequent speeding offence as reflecting any lack of remorse.12 Her Honour accepted the 3 Ibid at page 2 lines 10-35. 4 Ibid at page 2 lines 34-40. 5 Ibid at page 3 lines 5-17. 6 Ibid at page 3 lines 18-20. 7 Ibid at page 2 line 18; page 4 line 34; page 5 line 32. 8 Ibid at page 3 lines 30-31. 9 Ibid at page 4 lines 26-27. 10 Ibid at page 3 line 32 – page 4 line 21. 11 Ibid at page 4 lines 20-34. 12 Ibid at page 4 lines 34-40. -- 3 of 8 -- 4 psychological opinions that the applicant would be particularly vulnerable in prison because of his unusual personality.13 Her Honour also accepted that the applicant’s moral and criminal culpability were lessened by his psychiatric diagnosis so the need for the sentence to address issues of personal and general deterrence was also lessened.14 Applicant’s current circumstances [12] The applicant is now aged 23 years (DOB 16 June 1994). In his affidavit, the applicant acknowledges his commission of the offence of dangerous operation causing death and grievous bodily harm and accepts the circumstances were as outlined by Judge Bradley.15 In particular, the applicant admits his attempted suicide as a result of the anxiety and depression he was then experiencing, resulting from his then undiagnosed condition of Asperger syndrome.16 The applicant acknowledges the devastating effects of his conduct upon the families involved.17 [13] The applicant was released from prison on 11 January 2016 (i.e. after serving 19 months) and will remain on parole until June 2019.18 The applicant has complied with all requirements of his parole order and at present reports to his parole officer every 6 months.19 [14] Whilst in prison the applicant completed the Low Intensity Substance Intervention program and whilst on parole the applicant completed the Substance Abuse Maintenance Intervention program.20 The applicant deposes that he has never used illicit drugs and the only occasion of his misusing prescribed medication was the day of his offence. The applicant deposes that he has not consumed alcohol since before his incarceration and does not plan to do so in future.21 [15] The applicant acknowledges that having a driver licence is a privilege.22 The applicant says he has not driven a motor vehicle since his licence was disqualified and has not been charged with any further traffic or criminal offence since being sentenced by Judge Bradley.23 The applicant completed the Queensland Traffic Offenders Program on 28 March 2017.24 [16] The applicant presently resides with his family at Pine Mountain. He has been studying for the degree of Bachelor of Information Technology as an external student through the University of Southern Queensland since 2015.25 He attends exams at the 13 Ibid at page 4 line 46 – page 5 line 4. 14 Ibid at page 5 lines 6-9; 28-29. 15 Applicant’s affidavit, filed 7 July 2017, at [7]-[8]. 16 Ibid at [9]. 17 Ibid at [15]. 18 Ibid at [11], [18]. 19 Ibid at [18]. 20 Ibid at [14] and exhibited certificate ‘BJC2’. 21 Ibid at [13]. 22 Ibid at [15]. 23 Ibid at [16]. 24 Ibid at [17] and exhibited certificate ‘BJC4’. 25 Ibid at [4]. -- 4 of 8 -- 5 university’s Springfield campus, which is a 30 minute drive from his home.26 The applicant has been working part time around Ipswich and Brisbane as a primary school computer programming tutor since March 2016. His hours of work vary up to 12 hours per week.27 The applicant would like to increase his hours of work but is limited because of his transport options.28 The applicant is presently reliant on family members for transport assistance and also uses public transport. The closest train station to his home is a 60 minute walk and the train station he most commonly uses requires a 15 minute drive. Bus services in his area are limited. The applicant’s mother works full time, his sister works two part time jobs and studies, and his grandmother is aged 85 years and lives a 20 minute drive away.29 [17] The applicant deposes that having a driver licence will assist his study, allow him to undertake further vocational courses or programs, increase his employment prospects, and allow him to increase his current work hours and income. It would also reduce inconvenience to his family members.30 The law [18] Section 131 of the Act relevantly provides: 131 Reviews and appeals with respect to issue of licences etc. … (2) 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 2 years, may, at any time after the expiration of 2 years from the start of the disqualification period, apply for the disqualification to be removed. (2AA) The application for the disqualification to be removed must be made to— … (b) if the disqualification was ordered by a judge of the District Court—a judge of the District Court; … (2A) Notice of any such application shall be given to the commissioner or to any police officer authorised by the commissioner to receive such notices, who shall be entitled to appear and be heard and to give and produce evidence at the hearing of such application for or against the granting of the application. (2B) The notice required by subsection (2A) to be given shall be given at least 28 clear days prior to the date of hearing of such application. 26 Ibid at [23]. 27 Ibid at [5]. 28 Ibid at [6]. 29 Ibid at [19]-[21]. 30 Ibid at [22]-[27]. -- 5 of 8 -- 6 (2C) Upon hearing any such application the judge of the Supreme Court or District Court or justices 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 circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application. … (2E) If an order is made under subsection (2) for the removal of a disqualification, the judge or justices have power to order the applicant to pay the whole or any part of the costs of the application. Submissions [19] At a mention of this matter on 22 August 2017, the respondent sought an order amending the originating application which incorrectly named the Director of Public Prosecutions as respondent. By consent the originating application was amended to record the Commissioner of the Queensland Police Service as respondent. At that time both parties submitted they wished to rely upon filed written submissions without making any further oral submissions. [20] The applicant submits that the pre-conditions to the court making the order sought, set out in s 131 (2) of the Act, have been met. In particular, it is submitted the applicant was disqualified from holding or obtaining a driver licence for a period of more than two years, and this application is made after the expiration of more than two years from the start of that disqualification period. In addition, the applicant submits that notice of the application was given as required under s 131 (2A), and within the time specified under s 131 (2B). [21] The applicant also identifies the matters required to be considered under s 131 (2C). In particular, the applicant submits the court would find the applicant to be a person of good character in light of his lack of other criminal conviction, his academic ability and performance, the regard in which he is held, and his family background and support. The applicant highlights the applicant’s conduct subsequent to the disqualification order, including: the applicant has not re-offended in any way, has completed substance abuse courses both in jail and after release, has completed a traffic offenders education course, has continued his education, and has been gainfully employed. The applicant acknowledges the offence was extremely serious but points out the mitigating circumstances included that the applicant was very young at the time of the offence, pleaded guilty at an early time, was genuinely remorseful and accepted responsibility for his behaviour, was at the time of the offence acting under the influence of an undiagnosed psychiatric condition, and had taken considerable steps to appropriately deal with that condition. The applicant submits that having a driver licence will further promote the applicant’s rehabilitation by permitting him to increase his hours of employment and allowing further community engagement. [22] The applicant submits the court would order the removal of the disqualification. [23] The respondent acknowledges the application meets the formal requirements of s 131 (2), (2A) and (2B) of the Act. The respondent submits the court should consider the -- 6 of 8 -- 7 matters set out in s 131 (2C) consistent with the decision of his Honour Judge Robin QC in Tabakovic v Commissioner of Police;31 in particular the applicant’s disqualification be removed only “after suffering a sufficiently lengthy deprivation of the ability to drive to satisfy the community’s demand for punishment.”32 The respondent confirms the applicant has no other criminal convictions and that his only other traffic violation was as detailed at the time of sentence. The respondent acknowledges no adverse evidence as to the applicant’s character and concedes the conduct of the applicant subsequent to the disqualification has been satisfactory. The respondent points to the very serious nature of the offence and in particular the grave consequences for the victims and their families. The respondent however, acknowledges the applicant’s significant efforts towards rehabilitation and that now being able to drive will further progress those efforts. The respondent submits the period the applicant has now been without a driver licence is sufficient in accordance with the test set out above in Tabakovic. [24] The respondent makes no formal submission as to whether the application should be allowed. Consideration [25] The applicant committed a most serious example of the offence of dangerous operation of a vehicle causing death and grievous bodily harm, whilst adversely affected by an intoxicating substance. That offence, committed in 2012, involved the applicant driving whilst intoxicated by prescription medication and alcohol over a significant distance. It culminated in his attempting to overtake when unable to see ahead and colliding with oncoming vehicles, thereby causing a death and very serious injury. The sentencing Judge acknowledged the devastating consequences for the victims and their families. Although aged only 18 years at the time of committing that offence, and having reduced culpability because of his then undiagnosed psychiatric condition, the applicant was sentenced to serve a lengthy period of imprisonment, namely five years. The learned sentencing Judge allowed parole eligibility after 18 months of that sentence in recognition of the applicant’s early plea of guilty, youth, remorse, otherwise good character, reduced culpability, and efforts towards rehabilitation. The sentencing Judge also disqualified the applicant from holding or obtaining a driver licence for a period of four years. [26] The applicant now applies to have the remainder of that disqualification period set aside. In considering that application, s 131 (2C) of the Act requires that regard be had to the applicant’s character, his conduct subsequent to the disqualification, the nature of the offence and other relevant circumstances. [27] The applicant is now aged 23 years; more than five years has passed since the commission of the offence. Apart from that offence the applicant has no other criminal convictions. The applicant committed what the sentencing Judge regarded as a minor speeding infringement subsequent to the offence. The applicant has not committed any other traffic violations. The authorities saw fit to release the applicant on parole after he had served 19 months actual incarceration. He has now been on parole for about 20 31 [2009] QDC 191. 32 Ibid at page 3. -- 7 of 8 -- 8 months and will remain subject to parole until June 2019; i.e. for another 21 months. The disqualification period has now been in force for a total of three years and three months and, without order, will otherwise continue for a further 9 months. [28] The applicant resides at his family home, and is employed part time whilst he continues tertiary education. He does not use illicit drugs, does not consume alcohol, and has complied with all of the requirements of his parole order. Significantly, the applicant has, since the disqualification was imposed, successfully completed education programs dealing with substance abuse and a traffic offender program focused upon social responsibility, drug use, and the long lasting impacts of this type of offence for victims. The applicant’s prospects of increasing his work hours and/or obtaining other employment, are limited by his transport options. Whilst the applicant relies upon the support of family members and utilises public transport, the availability of public transport is somewhat restricted. [29] In Tabakovic, Robin QC DCJ referred to the power to remove the disqualification as “an inducement to offenders to perform well” while highlighting that the period of disqualification should be “sufficiently lengthy … to satisfy the community’s demand for punishment.” There can be no doubt that the applicant has, since the order for disqualification was made, performed well. I have reached the conclusion that the period of disqualification now served (i.e. 39 months), should be regarded as sufficient punishment for the offence. The offence was undoubtedly serious and for that reason the applicant has already paid a heavy price. He served a significant period in actual custody, and he remains subject to strict supervision with the threat of immediacy of return to prison for breach of parole conditions or further offending. [30] The applicant otherwise presents as a person of good character. His only offending occurred in circumstances connected with his then undiagnosed Asperger syndrome; a condition he has taken steps to deal with. He expresses appropriate contrition for his behaviour. The education courses the applicant has completed have hopefully increased his understanding and insight and further reduced his prospects of re- offending. His return to tertiary study and entering the work force are concrete steps towards his rehabilitation. Having an ability to drive will provide the applicant with opportunity to increase his level of community engagement which can only further advance his rehabilitation. It is undoubtedly in the public interest that the applicant be successfully rehabilitated. [31] In all of the circumstances, I am satisfied it is appropriate to make the order sought. I make no order as to costs. Orders [32] It is ordered that: 1. The disqualification imposed on 12 June 2014 upon Billy James Cody from holding or obtaining a driver licence is removed as from the date of publication of these reasons. 2. No order as to costs. -- 8 of 8 --