Bartkowski v Commissioner of Police [2007] QDC 178

DISTRICT COURT OF QUEENSLAND CITATION: Bartkowski v Commissioner of Police [2007] QDC 178 PARTIES: JASON SCOTT BARTKOWSKI (Applicant) v. THE COMMISSIONER OF POLICE (Qld) (Respondent) FILE NO/S: D132/07 Townsville DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 10.8.07 DELIVERED AT: Brisbane HEARING DATE: 9.7.07 JUDGE: Durward SC, DCJ ORDERS: 1. Application granted. 2. Pursuant to ss.131(2) and (2C) of the Transport Operations (Road Use Management) Act 1995, the absolute disqualification order made in the District Court at Brisbane be removed on and from 10 August 2007. 3. No order as to costs. CATCHWORDS: Application for removal of absolute disqualification of driver’s licence – effluxion of time – matters affecting the discretion – whether changed circumstances of applicant warrant removal – previous bad criminal and traffic history – concurrent four year driver’s licence disqualification now expired CITED CASES Transport Operations (Road Use Management) Act 1995 ss.131(2) and (2C) 1 -- 1 of 7 -- Burton v Commissioner of Police (Qld) (1990) 45A CrimR 314 COUNSEL: Mr P Russo (Solicitor) for the applicant. Mr W Kelly (QPS) for respondent SOLICITORS: Ryan and Bosscher Lawyers for the applicant. Queensland Police Service Solicitor for the respondent. [1] The applicant seeks the removal of a driver’s licence absolute disqualification pursuant to ss.131(2) and (2C) of the Transport Operations (Road Use Management) Act 1995 (“the Act”). Section 131 (2AA) of the Act requires the application to be made to this Court. [2] On 21 March 2002 in the District court at Brisbane the applicant was convicted on pleas of guilty of offences of dangerous operation of a motor vehicle and unlawful use of a motor vehicle, committed on 8 May 2000. [3] The applicant was sentenced to two and a half year’s imprisonment (suspended after 10 months with an operational period of three years) and disqualified, absolutely, from holding or obtaining a driver’s licence in respect of the dangerous operation of a motor vehicle charge. [4] The applicant was also convicted of 17 property offences on other indictments dealt with on the same date in respect of which there were concurrent terms of imprisonment imposed. ANTECEDENTS AND POST-CONVICTION BEHAVIOUR [5] The applicant is aged 33 years (date of birth 10.7.74). He has been employed by a Townsville plumbing company since April 2005. He works a six day week and other employees drive him to work and for work duties. [6] In an affidavit filed on 2 May 2007 the applicant said he wanted to work a seven day week. He also expressed an interest in establishing his own plumbing business. He says that neither of those things are achievable without being able to drive a motor vehicle. [7] However, his employer in a letter dated 9 July 2007, (part of Exhibit 1) takes matters a little further, as the following passage reveals: “His work consists of being able to drive from site to site working on various sites throughout the day around town. He is to insure the work quality and correct procedure are maintained on our work sites as well as working. Our work commitments have increased and no longer can see fit to have Jason working without a licence as it is necessary for our plumbers to have a basic car licence to be able to fulfil these work obligations with the company. We therefore require Jason to have a licence if he is to continue to be employed by this company. 2 -- 2 of 7 -- Jason is a hard and conscientious worker and we do not wish to lose him but we will have to consider this if he does not obtain back his car licence in the near future.” [8] The applicant’s upbringing seems to have been difficult for him to cope with. He was diagnosed with dyslexia at age five and experienced learning difficulties. He completed Grade 10 at high school and has since gained a TAFE qualification, as a mature adult, in the plumber, drainer and gas fitter trade. [9] His parents (in a Reference dated 5.7.07, part of Exhibit 1) describe his behaviour in childhood and youth as “non-conforming”. They state the following about him: “As parents we are very happy and proud of his recent achievements and believe Jason has matured and is more responsible and is settling in to his new lifestyle. Also he has generally changed his appearance, lifestyle and friends. We also feel that restoring his licence would significantly help complete the change in Jason’s behaviour that we have been navigating over the last five years and allow him to totally get back into 'mainstream’ society. [10] Two other character referees speak positively as to the applicant’s behavioural responsibility and his change in life and attitude. [11] The respondent did not produce a Queensland Police Service “fame and character” report. However it seemed to be common ground that nothing significantly or relevantly adverse to his character has occurred since the sentences and disqualification were imposed in March 2002, save for two matters to which reference is made in the discussion about the applicant’s criminal record and traffic offence record. The respondent neither consented to nor opposed the application. CRIMINAL HISTORY AND TRAFFIC RECORD [12] The applicant’s criminal history and traffic record are deplorable, commencing in 1993 when aged 19 years and 18 years respectively. [13] The sentences of imprisonment imposed in the District Court at Brisbane on 21 March 2002 were the first terms of imprisonment that the applicant had been required to serve. That experience is often a significant motivating factor in the rehabilitative prospects of some people. The series of offences dealt with on that date were committed between 8 May 2000 and 30 January 2001. [14] On 21 August 2002 the applicant was convicted of further offences in the Magistrates Court at Holland Park and sentenced to short periods of imprisonment, including a cumulative sentence of two months imprisonment for a breach of a bail undertaking. Those offences were committed between 27 August 2001 and 1 October 2001. [15] On 21 October 2002 he was convicted of further offences in the Magistrates Court at Brisbane and sentenced to further short periods of imprisonment. Those offences were committed between 3 October 2000 and 2 March 2002. An order was also made disqualifying the applicant from holding or obtaining a driver’s licence for a period of four years. 3 -- 3 of 7 -- [16] On 21 October 2004 he was convicted of further offences in the Magistrates Court at Beenleigh and sentenced to wholly suspended terms of imprisonment. Those offences were committed between 1 February 2002 and 15 March 2002. [17] It seems that after appearing for sentence on 21 March 2002 a number of offences pre- dating that appearance were dealt with in other courts. The applicant’s lawyer, Mr Russo, submitted that despite that series of subsequent sentencing proceedings, the applicant had in fact not committed any, nor had been in breach of any order of disqualification in respect of his driver’s licence, after having completed the suspended parts of the terms of imprisonment imposed in the District Court on 21 March 2002. [18] However, the applicant was subsequently convicted of two summary offences that were committed in August 2004 (two public nuisance offences and one obstruct police officer offence) and in August 2006 (a public nuisance offence). They appear to have been, in relative terms having regard to his criminal history, minor street offences. They were dealt with by imposition of fines. The respondent submitted (T22.15) that they were “only minor in nature but had their propensity escalate into other offences” (sic). I do not regard them as compelling factors in the exercise of my discretion. [19] The applicant’s traffic history is, as I have said, deplorable but it is not as bad as his criminal history. Significantly, he has not been convicted of committing any traffic offence since his release from imprisonment. That is a period of just over four years. THE RELEVANT STATUTORY PROVISIONS [20] Section 131(2) of the Transport Operations (Road Use Management) Act 1995 provides that: “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.” [21] Section 131(2C) of the Act provides as follows: “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.” [22] Hence the Act mandates that I have regard to the following matters in determining an application: (a) Character of the person disqualified; (b) The person’s conduct subsequent to the Order; (c) The nature of the offence; and (d) Any other circumstance of the case. 4 -- 4 of 7 -- THE PERIOD OF DISQUALIFICATION [23] There is one “other circumstance” that has some significance in this case. That is the length of time that the applicant has been the subject of the disqualification order. [24] In R v Burton (1990) 45A CrimR 314, Williams J in the Supreme Court in Queensland granted the removal of an absolute disqualification of a driver’s licence and approved a passage cited in R v Shirley (1969) 3 All ER 678 at 679 (per Sachs LJ) as follows: “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 lead him into that 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. However wrong such attitude may be, it springs from a human factor which it is wise to take into account.” [25] The applicant’s relevant disqualification from holding or obtaining a driver’s licence was made on 21 March 2002. He appears to have been released from the period of imprisonment on or about 20 July 2003. However, it seems that the four year disqualification from holding or obtaining a driver’s licence was made so as to commence upon his release from the final term of imprisonment, rather than from the commencement of it. Hence that period of disqualification continued in force, concurrently with the previously imposed period of absolute disqualification, until on or about 20 July 2007. The assumption inherent in that calculation is that the applicant had served the full term of the final nine month’s imprisonment. That seemed to be the basis upon which both parties proceeded on this point in the hearing of the application. [26] In any other circumstance, the applicant could apply to the Department of Transport for his driver’s licence to be renewed. That is an administrative procedure. However, such an application cannot be made, or at least it would be futile to make it, until the absolute disqualification was removed by Order of this court. THE NATURE OF THE OFFENCE [27] It is only the dangerous operation of a motor vehicle offence that requires any discussion in respect of the nature of the offence that is relevant to the disqualification. On 08 May 2002 the applicant was driving a motor vehicle in an erratic manner in Banyo (a northern suburb in Brisbane) when he came to the attention of police who approached his vehicle from behind and activated the police vehicle flashing lights and siren. The applicant then accelerated away at high speed and in excess of the speed limit driving at times onto the incorrect side of the road and causing other drivers to take evasive action until finally he collided with a guard rail and stopped. He got out of the vehicle and decamped. He was apprehended on 17 May 2002. [28] The motor vehicle had been extensively damaged. The applicant had told police he borrowed it from a friend but when the police car had driven behind him he did not stop because he believed that the motor vehicle may have been stolen. 5 -- 5 of 7 -- [29] In his sentencing remarks, Judge Howell – in making the order for an absolute disqualification – said the following: “You are disqualified absolutely from holding or obtaining a driver’s licence…in two year’s time you will have the opportunity to come before the court to attempt to persuade the court that you have turned the corner and that you should be allowed to have your licence returned. If that application is successful, you will, in effect, get a licence back after a couple of years. If that application is rejected you can apply again after another 12 months.” [30] The applicant apparently had a drug addiction which appears to have been the catalyst for his past criminal, anti-social and driving offence behaviour. [31] The applicant says in his affidavit that:- “At the time of these offences, and other offences as shown on my criminal history. I was addicted to speed and I could describe my life as very erratic. I was not of a stable mind. I am now clean from all drugs and have been since I was released from custody. I would say I am now of stable mind.” [32] In their Reference Letter to the court, his parents stated that they had seen a change in his life and appearance and had, at least inferentially, been assisting him to rehabilitate over the period since his release from prison. THE APPLICANT’S SUBMISSION [33] It was submitted on behalf of the applicant that the application should be granted, taking into account the following matters: (i) The lengthy period of time which the applicant has remained without a licence; (ii) His demonstrated compliance with the disqualification order; (iii) His rehabilitation from a life of instability and drug use to one with purpose, stability and commitment; (iv) His expressed desire to commence his own business; (v) That it is not practical for him to commence his own business without a licence; (vi) His good work history; (vii) His favourable character references and statement from his parents. DISCUSSION [34] In my view there are two primary factors in the exercise of the judicial discretion: the very significant change in the applicant’s life, attitude and societal responsibility; and the period of time that has elapsed since the imposition of the relevant disqualification during which he has not breached the order. [35] The applicant’s changed medical status whilst curiously not the subject of any medical or health report, is supported by his parents and other character referees. In the absence of any challenge (as distinct from mere comment) by the respondent to the assertions about 6 -- 6 of 7 -- his changed medical and health status, I am prepared to accept that the applicant’s health is now stable and drug free. [36] The applicant is in full time permanent employment. His employer values his services but doubts that he can continue to support him in employment unless he is able to drive a motor vehicle. [37] The applicant provides financial support for a young child of a previous relationship. [38] Whilst the offence in respect of which the absolute disqualification order was made was a serious example of a dangerous operation of a motor vehicle, nevertheless the applicant received a condign punishment and has served that punishment in prison. It seems to me that as serious as that offence may have been it should no longer be an impediment to his being able to lawfully drive a motor vehicle again, given his changed circumstances. [39] Finally, the applicant has moved into an environment of familial and collegiate support. Despite his early-life learning difficulties, he has now obtained a trade qualification. He has financed a house. It seems that altogether he is not now the same person as the man who was sentenced by Judge Howell in 2002. He seems now to be a better person. [40] To the extent that risk can be quantified in such matters, I do not think that the appellant, in his present disposition, poses any appreciable risk to others if his licence disqualification was removed. In fact, the removal of the absolute disqualification may positively assist in his on-going rehabilitation. The applicant would, of course, have also to apply to have the licence renewed since the four year disqualification has now run its course and an administrative application for the return of the licence is necessary. [41] In all the circumstances I am persuaded that the absolute licence should be removed. The application should therefore be granted. No submissions were made with respect to costs and there will be no order made. [42] ORDERS 1. Application granted. 2. Pursuant to ss.131(2) and (2C) of the Transport Operations (Road Use Management) Act 1995, the absolute disqualification order made in the District Court at Brisbane be removed on and from 10 August 2007. 3. No order as to costs. 7 -- 7 of 7 --