Bennett v Commissioner of Police [2010] QDC 308

1 [2010] QDC 308 DISTRICT COURT CIVIL JURISDICTION JUDGE NEWTON PERRY JAMES BENNETT Applicant and COMMISSIONER OF POLICE Respondent SOUTHPORT ..DATE 12/01/2010 ORDER -- 1 of 12 -- 2 ORDER HIS HONOUR: This is an application by Perry James Bennett seeking an order from the Court that the disqualification of his drivers licence imposed on 23 September 1999 be removed. On the hearing of an application of this nature, 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; see s 131(2C) of the Transport Operations Road Use Management Act 1995. The application is resisted by the Commissioner of Police. The affidavit of the applicant filed on 23 December 2009 refers, amongst other matters, to the circumstances surrounding the applicant's conviction. The applicant notes that he was convicted on 23 September 1999 of several criminal offences as well as an offence or a number of offences of dangerous operation of a motor vehicle in circumstances of aggravation. Those other offences include three counts of serious assault and 14 counts of receiving stolen property. In addition, the applicant was also convicted of several summary charges including drink driving, failing to provide a specimen of breath, two charges of disqualified driving, two charges of possession of a dangerous weapon, one charge of tainted property and one charge of possessing a thing used in the commission of an offence. -- 2 of 12 -- 3 ORDER The circumstances surrounding the four counts of dangerous operation of a motor vehicle were the subject of detailed remarks by the sentencing Judge, his Honour Judge Boulton. His Honour noted that the driving offences with which he was dealing were extremely serious. There was very significant danger to a number of police officers and also to other innocent members of the community including children. His Honour placed the dangerous operation counts at the upper end of the scale so far as offences of that nature were concerned. In the event, the applicant was sentenced to three years’ imprisonment to be served cumulatively on top of sentences that he was already serving. The applicant became eligible for work release in 2006 and spent some seven months in the community before he reoffended. He was then sentenced to a further three years imprisonment and was finally released in October of 2009. The applicant has not driven a motor vehicle since the order of disqualification made by Judge Boulton. The applicant is now almost 50 years of age; his date of birth being 22 March 1960. He has lived on the Gold Coast since 1993. He has one adult child of his own and additionally acts in the role of father in a step-relationship to the daughter of his ex-partner. His step-daughter is now 10 years of age and the applicant states in his affidavit that he sees her as often as possible. He has been step-father to the child since she was some two or three years of age. Since his release from custody in October 2009 the applicant -- 3 of 12 -- 4 ORDER has seen his step-daughter on three occasions. She resides in Maryborough with her mother and this poses a difficult and, no doubt, expensive public transport burden upon the applicant. He describes the relationship with the child's mother as good and the mother allows him to visit whenever he is able. He is permitted to stay with the child and her mother as long as is requested. At the last visit the applicant stayed for some five days before returning to the Gold Coast for work commitments. In relation to the applicant's rehabilitation, his advocate Mr Williams has referred to the outstanding efforts made by the applicant to undertake and satisfactorily complete courses during his incarceration. I have looked at copies of a large number of certificates including the following Exhibits to the applicant's affidavit: Exhibit PJB4, a course involving cognitive skills on problem solving and communication completed during March and April 2009; Exhibit PJB5, a course relating to food safety essentials and examination completed in April of 2009; Exhibit PJB6, a course involving cognitive skills to enhance the capacity to prevent lapse and relapse of addictions completed in May of 2009; Exhibit PJB7, a transitions program completed at the Darling Downs correctional centre in November of 2008; Exhibit PJB8, comprising a statement of attainment and certificate in conservation and land management completed in November 2008; Exhibit PJB9, a statement of attainment in general safety induction in the construction industry completed in May of 2008; Exhibit PJB10, comprising a number of drug tests being conducted between 2006 and 2008 resulting in no positive -- 4 of 12 -- 5 ORDER readings; Exhibit PJB11, comprising requests to Queensland Health to the Gold Coast Drug Council and to the Salvation Army for counselling and group therapy sessions between August and December of 2008; Exhibit PJB12, a certificate in work preparation completed in November 2006; Exhibit PJB13, an exit report relating to cognitive skills core program completed at the Woodford Correctional Centre in November of 2003; Exhibit PJB14, certificate of attendance at a cognitive skills core program at Woodford in November in 2003; Exhibit PJB15, anger management program completed at Woodford in April of 2002; Exhibit PJB16, a certificate of attendance at a cognitive skills core program relating to self-control, critical reasoning, problem solving and perspective taking completed at the Sir David Longland Correctional Centre in March of 2001; Exhibit PJB17, a stress management course completed at the Sir David Longland Correctional Centre in January 2001; Exhibit PJB18, a certificate relating to a substance abuse educational program completed at the Sir David Longland Correctional Centre in March of 2000; Exhibit PJB19, a TAFE Certificate II in workplace first-aid completed in December of 2000. These certificates and statements, in my view, indicate that the applicant has taken every opportunity that he could reasonably have taken to furthering his rehabilitation prior to his release back into the community. The applicant is currently employed by Innovative Transformations Australia Pty Ltd. The applicant states in his affidavit that he has been employed by this company since 23 November 2009 in the capacity of a trade assistant shop -- 5 of 12 -- 6 ORDER fitter. The position requires the use of a drivers licence to travel to various job sites and to conduct work. The applicant states in his affidavit at paragraph 10 that if granted a drivers licence he would also be required to travel to and from wholesalers and to undertake deliveries and collections of materials required for the company. The applicant notes that the loss of his drivers licence pursuant to the order of disqualification has significantly hindered his ability to obtain employment. He has relied on public transport to travel from place to place but his ability to retain his job is said now to be dependent upon his having a drivers licence. The applicant notes that he has also been offered weekend work but has been unable to undertake such employment because of his disqualification. It is claimed by the applicant that his only goal is now to work and to earn a living. He acknowledges that this is something he should have done many years ago and again points to the disqualification order as hindering his present ability to achieve his goal. According to the applicant's affidavit there have also been family and social impacts stemming from his disqualification. I have already referred to the relationship with the step- daughter of the applicant. Apparently public transport to Maryborough costs some $68 each way by train and a further $30 each way by taxi to the train station. Thus some $200 is spent on public transport, whereas if the applicant was able to drive himself to Maryborough the costs would be -- 6 of 12 -- 7 ORDER approximately half of that figure. In addition to the relationship between the applicant and his step-daughter, I note that the mother of the applicant is now some 78 years of age and is said to suffer from osteo- arthritis. She requires the use of a walking frame to move from room to room in her home. She finds it difficult to walk and she relies upon the applicant for assistance. The applicant's mother is on a pension and the applicant now receives a carer's allowance of some $52 per week to look after her. The care of his mother requires the applicant to take her to and from hospital by public transport. He also uses public transport to take his mother to medical appointments. This is said to be extremely difficult for her as buses are difficult for her to climb into and out of. Taxis are extremely expensive, the applicant states in his affidavit and the expense drains the applicant's limited wages and his mother's pension. I note that the applicant also takes his mother shopping, pays her bills for her, cleans her house and the yard, cooks her dinner and conducts general maintenance around the house as and when required. The applicant states that it is difficult for him to juggle his work with Innovative Transformations as well as to carry out full time caring for his mother but he states that he is committed to both. The ability for the applicant to drive and not to have to rely on public transport would greatly assist in the caring of his mother and in particular to transporting -- 7 of 12 -- 8 ORDER her to hospital medical appointments and shopping centres. There is a general claim in the applicant's affidavit of deep regret for the offences committed earlier in his life. He claims that he has now learnt an invaluable lesson and, having matured, simply wants to enjoy the rest of his life working and to spend what time is left to his mother with her and also to spend further time with his step-daughter. He claims he now understands that holding a drivers licence is not a right but a privilege and says that he now recognises the social obligations that a person licensed to drive carries. He says that the anger issues previously expressed towards authorities are now long gone and he claims that his attitude to himself and to the general public, is vastly different to what it was previously. Counsel for the respondent, Ms Heffner, opposes the application on the ground that the application is premature. The submissions made by Ms Heffner relate, in particular, to the fact that although the applicant has been without a drivers licence for approximately nine years, that this is largely a result of the lengthy periods of incarceration that he has been required to serve as a result of his offending behaviour. Ms Heffner notes that notwithstanding the large number of courses undertaken by the applicant during his incarceration, his criminal history, nevertheless, reveals a long-standing addiction to drugs and recidivous behaviour including criminal -- 8 of 12 -- 9 ORDER offences committed after the absolute disqualification order made by Judge Boulton. Ms Heffner urges that the Court exercise a substantial degree of caution in considering the return of the applicant's drivers licence and that the discretion conferred by s 131(2C) of the Act should not be exercised unless the Court is confident that the elements specified in that section have been met. I accept, as has been acknowledged in previous cases before other Judges of this Court, that in general applicants in the position of Mr Bennett should be encouraged to seek having their licences returned after they have served a suitable period subject to the disabilities of not being able to drive. I also accept the remarks made in the cases of R v. Shirley (1969) 1 Weekly Law Reports 1357 at 1358 where Lord Justice Sachs commented that "Long 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 prison. Such periods of disqualification may shut out a large sector of employment especially in certain areas. Moreover, if the length of disqualification is over-long and amounts to a period such as a decade, the position may well seem hopeless to the man and that of itself sows the seeds of an incentive to disregard the law on this point". Lord Justice Sachs observed that "However wrong such an attitude may be, it springs from a human factor which it is wise to take into account". In the case of Burton v. The Commissioner of Police -- 9 of 12 -- 10 ORDER Queensland, 10 Motor Vehicle Reports 329, Justice G N Williams, as he then was, made it clear that in an application of this nature it is incumbent upon the Court hearing the application to consider whether it is in the interests of the community to grant the application or to refuse it. There are factors which directly bear upon those matters referred to in s 131(2C) of the Act. The circumstances surrounding the nature of the offence in respect of which the disqualification order was made, are very serious. The applicant's conduct subsequent to the making of that order does not engender particular confidence that the applicant did learn his lesson from the sentences imposed in 2000. As against those matters, however and notwithstanding the criminal history and traffic record of the applicant, there is material before the Court relating to the character of the applicant which does engender some reasonable expectation that the applicant has decided to change his lifestyle and to commit himself to a law abiding existence. -- 10 of 12 -- 11 ORDER It is also, in my view, relevant to take into account the family circumstances, in particular, in this case the circumstances relating to the applicant's mother and step- daughter. I note that the legislation clearly envisages an order removing the disqualification, not only on the date the order is made, but also a date that may be specified in the order itself. Indeed, there are many cases where Judges of this Court have made an order lifting a disqualification but ordering that the effect of the lifting of the disqualification not occur until a specified date in the future. I intend to adopt such a course in this case. The difficulty is in fixing an appropriate date at which the disqualification should be removed. Ms Heffner has urged that a date be fixed at some considerable time after the date of this order. Mr Williams, on behalf of the applicant, has, I think, accepted that it would be premature to order that the disqualification be removed immediately and has urged me to make an order that would lift the disqualification in a relatively short time frame. Having regard to the circumstances to which I have referred, I make the following orders. The application is allowed. I remove the disqualification imposed by his Honour Judge Boulton on 23 September 1999 from the 12th of May 2010. In my view that period would operate to emphasise to the applicant, the importance that he claims to now accept as to the -- 11 of 12 -- 12 ORDER obligations of a person conducting a motor vehicle and also would, I hope, enable him to retain his current employment, no doubt with the forbearance and patience of his employer, and also offer his family some reasonable hope that in the near future their circumstances will improve. ----- -- 12 of 12 --