Davidson v Commissioner of Police (Qld) [2009] QDC 321

DISTRICT COURT OF QUEENSLAND CITATION: Davidson v Commissioner of Police (Qld) [2009] QDC 321 PARTIES: ROBYN ANDREA DAVIDSON (Applicant) AND COMMISSIONER OF QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: D49/09 DIVISION: Civil PROCEEDING: Application for removal of licence disqualification ORIGINATING COURT: District Court, Rockhampton DELIVERED ON: 18 September 2009 (delivered ex tempore) DELIVERED AT: Rockhampton HEARING DATE: 18 September 2009 JUDGE: Irwin DCJ ORDER: The absolute disqualification of driver’s licence imposed on the applicant in the Rockhampton District Court on 13 September 1995 be removed as from 18 September 2009 pursuant to s 131(2) of the Transport Operations (Road Use Management) Act 1995. CATCHWORDS: CRIMINAL LAW – Driving Offences – dangerous operation of a motor vehicle – driving with a blood alcohol concentration in excess of 0.15 per cent APPLICATION FOR REMOVAL OF LICENCE DISQUALIFICATION – Section 131 of the Transport Operations (Road Use Management) Act 1995 – where applicant’s driver’s licence disqualified absolutely – demonstrated a genuine commitment to rehabilitation – demonstrated that she is a fit and proper person to hold a driver’s licence Transport Operations (Road Use Management) Act 1995, s 131(2), s 131(2C) Lolagis v Chief Executive Officer Queensland Transport [2002] QDC 162, applied Nolan v The Queen [2009] QDC 216, applied 1 -- 1 of 20 -- 2 ORDER 1 10 20 30 40 50 60 COUNSEL: K. Peren for the applicant C. Hesner for the respondent SOLICITORS: Madden Solicitors for the applicant Queensland Police Service Solicitors Office for the respondent -- 2 of 20 -- 3 ORDER 1 10 20 30 40 50 60 DISTRICT COURT CIVIL JURISDICTION JUDGE IRWIN No D49 of 2009 ROBYN ANDREA DAVIDSON Applicant and COMMISSIONER OF QUEENSLAND POLICE SERVICE Respondent ROCKHAMPTON ..DATE 18/09/2009 ORDER -- 3 of 20 -- 4 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The applicant Robyn Andrea Davidson pleaded guilty in the District Court at Rockhampton on the 13th of September 1995 to one count of dangerous operation of a motor vehicle with a circumstance of aggravation in that at the time, she had a blood alcohol concentration in excess of 0.15 per cent. The sentencing Judge said that her precise blood alcohol concentration was not clear but it seems to have been somewhere between 0.2 per cent and 0.15 per cent. A conviction was recorded and she was sentenced to imprisonment for three and a-half years with a recommendation that she be eligible for release on parole after serving 10 months of the sentence. His Honour further ordered that she be disqualified absolutely from holding a drivers licence. The applicant now applies pursuant to the provisions of section 131 (2) of the Transport Operations (Road Use Management Act) 1995 which I will henceforth refer to as the "Act", to remove the disqualification of her drivers licence imposed by the sentencing Judge. Section 131 (2 C) of the Act provides, "Upon hearing any application the Judge of the District Court constituting a Court, may as is thought proper, having regard to the character of the person disqualified, 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 -- 4 of 20 -- 5 ORDER 1 10 20 30 40 50 60 disqualification and from such date as may be specified in the order or refuse the application." In her affidavit in support of this application, the applicant states in addition to referring to the circumstances of the offence that she is now 55 years of age and since her last conviction on the 22nd of November 2001 for which she was committed to probation for 18 months, she started taking stock of her life. In about 2003 she obtained employment as a cleaner/kitchen hand at an aged care facility. After she had been there for some time she realised that if she undertook some study she could become an assistant in nursing or nurses aid. To achieve this she undertook a TAFE course with the result that she gained a Certificate III in Aged Care work in June 2005. Whilst she studied for this she worked at another aged care facility where she remained as a casual employee until late 2007 or early 2008 after which she was employed with Queensland Health as an assistant in nursing at the Rockhampton Base Hospital. This is a position that she has held since 7 April 2008. It is another casual position. In slow times she averages eight days work per month, in busy times she works six to eight days a fortnight. She is permanently on call. She has attained a number of participation certificates in 2005 and 2006 relevant to her work. She undertook a first aid course in 2005 and also in -- 5 of 20 -- 6 ORDER 1 10 20 30 40 50 60 2006 including a course with a focus on CPR and in 2008 she updated her first aid qualifications. She also undertook studies towards a Certificate II in Business during 2007 through TAFE. She has also obtained a certificate for workplace health and safety issues. As a result of the motor vehicle collision which led to her imprisonment and the absolute disqualification with which I am presently concerned, she also suffered damage to her ankles and knees which are confirmed by two medical reports, one in 1996 and more recently on the 14th of July 2009. The latter report from Dr Shepherd states that she suffers from bilateral unstable knees which causes pain when she walks more than a block on the flat. On this basis she has received a disability support pension. Consistently with Dr Shepherd's opinion she says that the resultant pain prevents her from walking excessively particular in the hilly area in which she lives. As a result she is reliant on her 79 year-old foster father for transport depending on his availability, public transport or hiring taxis. Not having a licence means that she has not been able to maintain the degree of contact she would like to have with her three adult daughters, four grandchildren and her 76 year-old mother. Her children and grandchildren live in Gracemere and Midgee. For the last six months her mother has been living at Yeppoon. She cannot afford the cost of taxis to visit them. -- 6 of 20 -- 7 ORDER 1 10 20 30 40 50 60 She has set out the estimated cab fees from Rockhampton to Yeppoon as being $101.60, from Rockhampton to Midgee as being $44.60 and from where she lives to Gracemere at $20 to $25 per trip. This is supported by a statement from the local taxi company. It also costs $11.30 to travel by taxi from her home to the hospital for work. In addition there are extra costs associated with bookings and night charges. She no longer drinks. She supports this by reference to the fact that she has not re-offended since the 11th of October 2001, almost eight years ago and she has been able to obtain and maintain casual employment. She has achieved this of her own volition having gradually decreased her consumption over the years. She says that the fact she has obtained employment and undertaken study has increased her self esteem as a result of which she no longer has to drink alcohol. She contrasts this to her behaviour between 1982 and 1985 when she was married to men who were domestically violent with the result that she started to drink as a coping strategy. This was also the case with her last offence of unlawful use of a motor vehicle in 2001. The man with whom she had also been in a violent relationship followed her to Moranbah where the offence occurred. She says that he came to her house and refused to leave. As a result she drove his car to the police station. He subsequently said -- 7 of 20 -- 8 ORDER 1 10 20 30 40 50 60 that she had no permission to drive it away. As a result she was charged and convicted of unlawful use of a motor vehicle. This portrayal of her earlier life is consistent with the reference by the sentencing Judge to a psychological report from Dr Alroe to the effect that her life had not been a happy one and that she had suffered from depression and anxiety. The sentencing Judge also recognised that the applicant had a long standing problem with alcohol which was involved in the offence of dangerous driving causing death with the circumstance of aggravation and also the unlawful wounding offence which occurred at an hotel. As the applicant says in her affidavit, she was on medication during the 1980's and 1990's for depression and anxiety and to enable her to sleep. She has not owned a vehicle since 2001, having sold it. She states in her affidavit filed on the 13th of May 2009 that she is not proud of either her criminal or traffic history but would ask the Court to accept that she has changed and is no longer the person that she was at the time these offences occurred. I will have more to say about the nature of her offending when I discuss the factors relevant to the exercise of my discretion under section 132 (2C). The applicant's submissions principally rely upon this affidavit and two subsequent affidavits that she has filed. -- 8 of 20 -- 9 ORDER 1 10 20 30 40 50 60 Essentially it is submitted that she has satisfied the criteria set out in section 131 (2C) of the Act to allow the Court to exercise its discretion favourably on this application and order that her disqualification be removed. As I have observed the applicant places particular stress on the fact that she has not committed an offence since 11 October 2001 and has therefore demonstrated that she is a fit and proper person to hold a drivers licence. The respondent's submission addresses each of the factors to be considered on this application. It notes that the applicant has been without a drivers licence for approximately 14 years and has not been convicted of a driving offence for approximately eight years. In these circumstances the respondent neither consents nor objects to the granting of the application. Ms Hesner, who appears for the respondent confirms that the respondent is adopting a neutral stance in relation to the application. In determining whether I am satisfied on the balance of probabilities that it is proper to remove the applicant's disqualification of her drivers licence and if so from what date, I have regard to each of the matters listed in section 130 (2C). With reference to the applicant's character and her conduct subsequent to the offence I take into account that prior to her conviction in 1995 for the offence of dangerous driving causing death with a circumstance of aggravation, she had previous traffic convictions commencing on the 18th of -- 9 of 20 -- 10 ORDER 1 10 20 30 40 50 60 November 1982 when she was convicted of two offences committed on the same date of driving under the influence of liquor. Then eight days later on 26 November 1982, she was again apprehended by police for driving under the influence of liquor and was disqualified from holding or obtaining a drivers licence for 18 months. This disqualification was up to the 15th of June 1984. The blood alcohol readings for two of these offences were 0.23 per cent and 0.20 per cent. -- 10 of 20 -- 18092009 D.1 T(1)14/CAMP(MKY) M/T ROCK04 (Irwin DCJ) 1-11 ORDER 1 10 20 30 40 50 60 Then, on the 20th of July 1984, one month after she was eligible to drive, she was apprehended again for driving whilst under the influence at Brisbane and was disqualified for a period of three years. Her blood alcohol content on that occasion was 0.20 per cent. Then, on the 16th of September 1985, she was charged with driving whilst disqualified and, on the 17th of September 1985, one day later, she was charged with driving whilst under the influence of liquor. On the first charge she was disqualified from holding or obtaining a driver's licence absolutely and, for the drink driving, she was disqualified for a period of five years. Also, on the 17th of September 1985, she was charged with another offence of disqualified driving which resulted in a further absolute disqualification. On the 17th of September 1991 the absolute disqualification was removed by a Court. As has been drawn to my attention this morning, there is some uncertainty about whether the order on that date extended to both of the absolute disqualifications to which I have referred. This is because of the way in which the results of Court proceedings have been entered into her traffic record. While it would make logical sense that the Court remove both absolute disqualifications in 1991, and for the purposes of -- 11 of 20 -- 18092009 D.1 T(1)14/CAMP(MKY) M/T ROCK04 (Irwin DCJ) 1-12 ORDER 1 10 20 30 40 50 60 this application I proceed on this basis, that is not what the traffic record currently says. Then, on the 22nd of January 1995, some three years and four months later, she was charged with dangerous driving causing death with the additional circumstance of aggravation that she had a blood alcohol concentration in excess of 0.15 per cent. Then, on 11 October 2001, she was again charged with disqualified driving and failing to supply a breath specimen. She was convicted of both offences on the 22nd of November 2001 and was further disqualified for a period of two years. Her criminal convictions commenced with the charge of dangerous driving causing death with a circumstance of aggravation in 1995. Seven days before that charge she committed an unlawful wounding for which she was convicted in the Rockhampton District Court on the 26th of August 1998 and imprisoned for 12 months. On 11 October 2001 she was also charged with the offence of unlawful use of a motor vehicle and placed on probation for 18 months. This offence was associated with her failing to provide a specimen of breath on the same date. Therefore, in addition to the dangerous driving offence, her offending history is: Five offences of driving under the -- 12 of 20 -- 18092009 D.1 T(1)14/CAMP(MKY) M/T ROCK04 (Irwin DCJ) 1-13 ORDER 1 10 20 30 40 50 60 influence of liquor; three offences of disqualified driving; and one offence each of failing to supply a specimen of breath, unlawful wounding and unlawful use of a motor vehicle. There have been three absolute disqualifications. However, it is notable that the five offences of driving under the influence of liquor were committed between 1982 and 1985, as were two of the disqualified driving offences. This was at a time when she was going through a difficult period in her life involving domestic violence and was using alcohol as a coping strategy. She was also suffering from depression and anxiety during the 1980s and 1990s, for which she was on medication. The dangerous driving offence occurred during this period and was also associated with alcohol. The unlawful wounding offence was also committed during this period shortly before the dangerous driving offence. She has only committed two further offences in the past 14 years since the conviction for dangerous driving with a circumstance of aggravation, for which she received the absolute disqualification with which I am now concerned. Those are the offences of unlawful use of a motor vehicle and failing to supply a specimen of breath in 2001. Although the convictions for those offences resulted in another licence disqualification, she has committed no offence -- 13 of 20 -- 18092009 D.1 T(1)14/CAMP(MKY) M/T ROCK04 (Irwin DCJ) 1-14 ORDER 1 10 20 30 40 50 60 in the past eight years, and this includes not further breaching her absolute disqualification. As I have said, she recognises that her criminal and traffic histories are nothing to be proud of. I accept this as an expression of insight and remorse about her previous misconduct. -- 14 of 20 -- 18092009 D.1 T(1)15/KAZ(MKY) M/T ROCK04 (Irwin DCJ) 15 ORDER 1 10 20 30 40 50 60 Importantly, her history since 2001 demonstrates that her character has changed and significantly improved since that time and that she is no longer the person she was at the time that these offences occurred. This is not just a matter of her own words, but it is demonstrated by her actions of studying to gain her assistant in nursing qualification in 2005, obtaining participation certificates including for first aid in 2005, 2006 and 2008 and also her studies towards a certificate in business. It is further demonstrated by her work as a casual employee from 2003 to 2008 in Aged Care facilities and her employment for almost 18 months as an assistant in nursing at the Rockhampton Base Hospital where there is no reason to doubt that she discharges her duties in a diligent and a responsible manner. It is also demonstrated by her gradually decreasing her alcohol consumption through her own efforts to the extent that she no longer drinks. This is confirmed by her ability to maintain casual employment and by the fact that she has not re-offended for eight years. She has also complied with the requirements of an 18 month probation order which she received in 2001. I consider her conduct over the past eight years to have been exemplary and to have demonstrated a genuine commitment to -- 15 of 20 -- 18092009 D.1 T(1)15/KAZ(MKY) M/T ROCK04 (Irwin DCJ) 16 ORDER 1 10 20 30 40 50 60 rehabilitation. It is relevant that she is now 55 years of age. She makes this application with the laudable motivation of being able to maintain greater contact with her family in the form of her mother, daughters and grandchildren through having her own means of transport rather than having to rely on public transport, taxis or relatives. It will address the prohibitive cost of taxis and make it easier for her to travel to and from work. It is notable that the sentencing Judge observed in 1995 that despite her personal problems she has raised three children and she seemed to have the goodwill of people around her. The facilitation of contact with her family and work-related travel will further enhance and contribute to her rehabilitation and will reward her significant efforts in that regard. I accept that the offence was a serious one. The circumstances of the offending are summarised in the respondent's outline of submissions with footnoted references. As this is consistent with his Honour's sentencing remarks it is convenient to adopt it for the purpose of my decision. The circumstances of the offending are therefore as follows. On 13 September 1995 the applicant was in a vehicle with a number of other people after attending a party on a Saturday evening. Another woman, who was apparently not affected by -- 16 of 20 -- 18092009 D.1 T(1)15/KAZ(MKY) M/T ROCK04 (Irwin DCJ) 17 ORDER 1 10 20 30 40 50 60 alcohol had been driving the car. She, however, decided not to remain with the group and she drove the car to her place where she left. Some time before the incident the vehicle was stopped and the applicant and another person by the name of Craig Williams shared some cannabis. After that Williams apparently refused to drive the vehicle any further and she apparently decided to drive it. She then drove the vehicle and in doing so executed U-turn on the Rockhampton - Emu Park Road at about 1.20 A.M. A vehicle travelling in the opposite direction came around the corner. The applicant's vehicle was only about 100 metres from the vehicle and on the wrong side of the roadway facing the vehicle. There was little time for the driver of the other vehicle to react. The two vehicles collided around about the centre of the road. The occupant of the front passenger seat of the applicant's vehicle died immediately as a result of the accident. It seems that all of the people in the vehicle, including the applicant, were affected to varying extents by alcohol. As I have indicated, the applicant had a blood alcohol concentration of in excess of 0.15 percent at the time of driving. -- 17 of 20 -- 18092009 D.1 T(1)15/KAZ(MKY) M/T ROCK04 (Irwin DCJ) 18 ORDER 1 10 20 30 40 50 60 As his Honour said, and as is demonstrated by his sentence, this was a serious offence. I note that in the applicant's affidavit of 28 August 2009 she gives a different recollection of events to the factual basis on which she pleaded guilty and was sentenced. However, in an affidavit of 9 September 2009 which has been considered by the respondent in taking a neutral attitude to this application she says that she accepted the facts as presented because she had no recollection of the incident. In this affidavit she accepts her culpability, including the fact that she had been drinking and was not exercising care and control over the vehicle with the intention of executing the U-turn. I do not intend to reopen the factual basis of the sentence after 14 years and proceed on the basis that the nature of the offence was as outlined by the sentencing Judge. In a case where there is not such a strong indication of genuine commitment to rehabilitation such as exists here such a late departure from the factual basis of the plea might cause me to take a less positive view of the applicant's character and the extent of her rehabilitation. However, in this case I am satisfied for the reasons I have given that since this offending occurred, and particularly since her last offence in 2001, the applicant has demonstrated -- 18 of 20 -- 18092009 D.1 T(1)15/KAZ(MKY) M/T ROCK04 (Irwin DCJ) 19 ORDER 1 10 20 30 40 50 60 a conscientious attitude towards rehabilitation and has in fact fully rehabilitated herself. Generally, despite my concern about her departure from the factual basis on which she was sentenced, for the reasons I have given she has shown insight and remorse about her previous misconduct and has further shown a willingness to become a useful member of society. This is the conclusion that Judge Tutt recently came to in Nolan v. The Queen [2009] QDC 216, in removing a licence disqualification pursuant to section 132(2) of the Act. In that case his Honour applied the statement of Williams J. in Burton v. Commissioner of Police (Qld) [1990] 10MVR at 322 that: "It is in the interests of the community that this young man be able to continue a law-abiding self-sufficient lifestyle and not become a further burden on the public purse... In my view he has been punished enough and he ought to be given the opportunity of driving a motor vehicle again so that he can further his law-abiding self-sufficient lifestyle." These comments are also apposite to the present case, although the applicant is not a young person. In my view she ought to be given the opportunity of driving a motor vehicle again so she can further her law-abiding self-sufficient lifestyle. -- 19 of 20 -- 18092009 D.1 T(1)15/KAZ(MKY) M/T ROCK04 (Irwin DCJ) 20 ORDER 1 10 20 30 40 50 60 Consistently with section 131(2C) the removal of the absolute disqualification which follows from this conclusion may be effected from a specified future date as confirmed by Judge Wilson in Lolagis v. Chief Executive Officer Queensland Transport [2002] QDC162 at page 4. However, in the circumstances of this case given that she has now been without a driver's licence for 14 years my order is that the absolute disqualification of the driver's licence imposed on the applicant on 13 September 1995 be removed from this date, 18 September 2009, pursuant to section 131(2) of the Act. I make no order as to costs. Is there anything further, Ms Perrin? MS PERRIN: No, thank you, your Honour. HIS HONOUR: Is there anything further, Ms Henza? MS HESNER: No, thank you, your Honour. HIS HONOUR: Ms Hesner, sorry. I'll just clarify with you, I proceeded on the basis that you weren't seeking costs in this particular matter. MS HESNER: No, your Honour. HIS HONOUR: No, all right. Well that's the order of the Court and thank you for the advice you gave earlier about the potential complications resulting from the traffic record that will require some communications by the applicant with the Magistrates Court to determine whether or not each of the original absolute disqualifications in 1985 were removed as we assume was probably the case, but has not been properly reflected because of an administrative error. MS HESNER: Thank you, your Honour. ----- -- 20 of 20 --