Breckenridge v Queensland Police Service [2010] QDC 208

1-1 [2010] QDC 208 DISTRICT COURT CIVIL JURISDICTION JUDGE DEARDEN COLIN ROBERT BRECKENRIDGE Applicant and QUEENSLAND POLICE SERVICE Respondent BEENLEIGH ..DATE 30/04/2010 ORDER -- 1 of 8 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application pursuant to section 131(2) of the Transport Operations (Road Use Management) Act 1995. The applicant, Colin Robert Breckenridge, was disqualified absolutely in the Beenleigh District Court on 10 July 2001 by his Honour Judge Brabazon. That disqualification, which was clearly an entirely appropriate disqualification, arose as a result of his conviction for an offence of dangerous driving causing grievous bodily harm which occurred on the 24th of October 1999. The matter proceeded by way of appeal against the severity of sentence and the Court of Appeal delivered the decision on 16 October 2001. The Court of Appeal set out in detail both the sentencing remarks and observations of the learned Sentencing Judge. I note, for example, that the then defendant, now applicant's reading at the time was .235 percent and he chose to drive despite that level of alcohol. There was an issue which was raised, at least in part, on the sentence that the applicant may at the time have been suffering at least some of the effects of a bipolar disorder, and it seems that as of the date of sentence steps had been taken to deal with that bipolar disorder. There were, it seems, other issues that the applicant was then dealing with, in particular issues arising in the Family Court. The appeal against sentence was ultimately unsuccessful and -- 2 of 8 -- 1-3 ORDER 1 10 20 30 40 50 60 the Court of Appeal identified, it seems to me quite rightly, that although the applicant was otherwise a responsible citizen, a good worker and a good father, that his most serious problem was his alcohol addiction. The effective sentence of five years, to be released after serving two years and two months, with an operational period of five years, was upheld on sentence and there was no variation of the disqualification, which was of course an absolute disqualification. The provisions of section 131(2) of the Transport Operations (Road Use Management) Act enable an applicant to apply to have a disqualification removed at any time after two years from the imposition of that absolute disqualification. In Mr Breckenridge's case that absolute disqualification was imposed on 10 July 2001 and he was entitled to apply to have it removed at any time from the 10th of July 2003. He was, of course, at that stage still in custody serving the custodial component of his sentence. Importantly, it seems to me, it has now been almost seven years since the applicant was released from custody. In that time there is no suggestion on any material placed before me that he has driven a vehicle on a public road. There is a matter which Ms Boileau, who appears for the Commissioner of Police, quite properly raises, an offence of wilful damage occurring on the 27th of September 2005 on which the applicant -- 3 of 8 -- 1-4 ORDER 1 10 20 30 40 50 60 was sentenced on 14 August 2006 in the Wynnum Magistrates Court. He was at that time fined $600 and ordered to pay $870 compensation. There is, as Ms Boileau quite properly submits, an aspect of irrational behaviour which the applicant himself, in paragraph 8 of his affidavit sworn 29 April 2010 admits, arose from him being heavily intoxicated at the time. However, critically in my view, there is no suggestion that that wilful damage charge was in any way connected with any form of use of, or proposed use of, a motor vehicle, although it does, of course, raise the issue of alcohol intoxication, which as Ms Boileau properly points out, is directly connected to the original offence and the absolute disqualification imposed by the original sentencing Judge. What is, in my view, of equal importance, however, is that apart from that wilful damage matter, the applicant has not committed any other criminal offence (see Exhibit 5) nor traffic offence (see Exhibit 6) since the date that he was sentenced in the Beenleigh District Court on 10 July 2001. The only subsequent entry on his traffic history is, as Mr Sushames has pointed out, somewhat misleading because it was a speeding matter which in fact arose after the commission of the dangerous driving offence but before sentence on that offence. It may well be, of course, that that speeding matter was a matter taken into account by the learned sentencing Judge as exacerbating the situation in respect of sentence, -- 4 of 8 -- 1-5 ORDER 1 10 20 30 40 50 60 but in terms of this application it plays no practical part. I have considered carefully the written and oral submissions of both counsel who have appeared before me and each has dealt comprehensively with the factual matrix and the relevant provisions of the Transport Operations (Road Use Management) Act. The issue has to be considered in the clear terms of section 131(2C) of the Transport Operations (Road Use Management) Act, namely whether "the Judge of the … District Court … 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." The material provided by the applicant in his affidavit material, although appropriately subject to the criticism raised by Ms Boileau about its reasonably aged nature, is still material that indicates that the applicant has substantially completed a process of rehabilitation. The applicant notes in his affidavit material that he has, as he's put it, been "working consistently since [his] release from prison on the 9th of September 2003 without any incidents" and that work history includes a substantial period working for a company called Scott Metal for three and a-half years as a welder and employment with the Brisbane City Council since October 2007 as a fitter and turner where he earns a -- 5 of 8 -- 1-6 ORDER 1 10 20 30 40 50 60 reasonable but modest wage overseeing the maintenance of tools and machinery for all garages and depots in Brisbane. Although it is clear that the applicant's employment does not depend on him having a licence it is also clear in my view that the applicant's employment situation would be enhanced, and he would certainly be in a position where he could be more useful to his employer and perhaps enhance his prospect of promotion with his employer, were he to hold a driver's licence. There are significant protections, in my view, if this Court were to order the removal of the absolute disqualification. The first is that given the substantial period of absolute disqualification the applicant will have to again pass the relevant tests in order to be able to obtain a licence. Secondly, of course, the applicant who has attested to, if I can use these terms, substantially dealing with his alcoholism problem, is in the position now where if his licence is returned to him the slightest risk of him offending again in respect of drink driving laws would, in all likelihood, see him return to gaol. Ultimately, given the consequences, any return to drinking and driving which, of course, can't directly be prevented if I remove the disqualification, would be an utterly irrational choice on the part of the applicant and would receive appropriate, and it seems to me, substantial punishment if it occurs. -- 6 of 8 -- 1-7 ORDER 1 10 20 30 40 50 60 Ultimately, I am satisfied that the applicant, having regard to his character and his subsequent conduct since the original order and the nature of the offence which was a very serious one, is now at a point in his life and at a point sufficiently removed from the time of sentence and the imposition of the absolute disqualification to be granted the privilege (and I stress it is a privilege not a right) to be entitled to apply again for a driver's licence in the State of Queensland. I have the power to impose that at a future date and the order that I make today is that the absolute disqualification be removed effective 9 a.m. on 4 May 2010, which in practical terms is the next business day from today. I note that the power to make that order is supported by the decision in Lolagis v the Chief Executive Queensland Transport [2002] QDC 162 and I thank Ms Boileau for bringing that to my attention. Before concluding the reasons I stress again, Mr Breckenridge, that the decision I've made is a decision that trusts and entrusts you to drive on the roads in Queensland, if and when you pass the relevant tests, with all of the obligations and expectations that are placed on every driver who drives on our roads. One of the most fundamental of those expectations is that you will drive and treat others as you would want to be treated -- 7 of 8 -- 1-8 ORDER 1 10 20 30 40 50 60 and part of that, of course, is to drive defensively and carefully ensuring that you are at all times alcohol free and drug free. Because the step that I have taken to return to you the ability to apply for a licence is a step that places significant trust in you and, as I've indicated in my remarks, if you breach that trust then it is almost inevitable not only of course that you would lose your licence again for a long period, but you may well take yourself back to prison and that would be most unfortunate. On the other hand, if you treat the licence as a privilege and treat it with the greatest of respect, ensuring that you never drive at any stage when there is any risk that you might be effected by alcohol then, as with all those who are entitled to drive on the roads in Queensland, you can take your place as a member of the community and respecting all of the rules and all other road users again have that privilege of driving a motor vehicle once you've passed the appropriate tests. A copy of that order can be settled in due course then as of 4 May 2010 you will be eligible to again jump through whatever hoops the Department of Transport now provides for someone who has to apply for a licence having been disqualified for in excess of five years. ----- -- 8 of 8 --