Chmieluk v Commissioner of Police [2022] QDC 46

DISTRICT COURT OF QUEENSLAND CITATION: Chmieluk v Commissioner of Police [2022] QDC 46 PARTIES: CANDICE LEE CHMIELUK (Applicant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 26 of 22 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Southport DELIVERED ON: 11 March 2022 (delivered ex tempore) DELIVERED AT: Southport HEARING DATE: 11 March 2022 JUDGE: Holliday QC, DCJ ORDER: The disqualification of driver’s licence imposed on the applicant in the Southport District Court on 28 May 2018 be removed as of 14 March 2022 pursuant to s 131(10) of the Transport Operations (Road Use Management) Act 1995. CATCHWORDS: CRIMINAL LAW – driving offences – dangerous operation of a motor vehicle causing death – driving whilst adversely affected by an intoxicating substance namely alcohol APPLICATION FOR REMOVAL OF LICENCE DISQUALIFICATION – section 131 of the Transport Operations (Road Use Management) Act 1995 – where original period of disqualification was five years – demonstrated a genuine commitment to rehabilitation – demonstrated that disqualification should be removed LEGISLATION: Transport Operations (Road Use Management) Act 1995, ss131(10), 131(14) CASES: Johnson v DPP (Qld) [2009] QDC 300 Porter v Police Commissioner [2010] QDC 274 Slivo v Commissioner of Police [2016] QDC 46 Tabakovic v Commissioner of Police [2009] QDC 191 COUNSEL: P Morreau for the Applicant C Comley for the Respondent -- 1 of 10 -- 2 SOLICITORS: Streeton Lawyers for the Applicant Queensland Police Service Legal Unit for the Respondent -- 2 of 10 -- 3 Introduction [1] On 28 May 2018, the applicant was sentenced by his Honour Judge Kent QC for the offence of dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance. The sentence imposed, which was not interfered with on an Attorney-General’s appeal, was five years’ imprisonment suspended after serving three months for an operational period of five years. His Honour also ordered that the applicant be disqualified from driving for five years. That period ends on 28 May 2023 (in about 14 months’ time). [2] The applicant applies pursuant to section 131(10) of the Transport Operations (Road Use Management) Act 1995 (the Act) for her disqualification to be removed to enable her to be able to transport her twin children (aged seven years) to activities and permit her to travel for work which will allow her to earn a more sustainable income for her young family as well as have benefits for her mental health. [3] The application is well supported by affidavit material. [4] The respondent submits, at paragraph 11 of her written submissions, that if the Court is satisfied that, on balance, the matters raised in the application warrant the exercise of discretion in favour of granting the application then the respondent does not oppose it. The factors to be considered [5] Section 131(14) of the Act provides: “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.” [6] As such, section 131(14) sets out relevant considerations for the exercise of discretion, namely: (a) the character of the person disqualified; -- 3 of 10 -- 4 (b) the person’s conduct subsequent to the order; (c) the nature of the offence; and (d) any other circumstances of the case. [7] The onus is on the applicant to satisfy the Court that it may be “thought proper” to remove the disqualification from a specified date. [8] In Tabakovic v Commissioner of Police [2009] QDC 191, His Honour Judge Robin QC said, at page 3, in respect of the purpose of the provision that: “In my respectful opinion, the section is there serving the useful purpose of providing an inducement to offenders to perform well, in which event there is a reasonable likelihood that they will be given the opportunity to become licensed to drive again – after suffering a sufficiently lengthy deprivation of the ability to drive to satisfy the community’s demand for punishment”. The nature of the offence [9] The sentencing remarks of Judge Kent QC, as well as the decision of the Court of Appeal, are annexed to the affidavit of Mr Wong. The applicant accepts that the offence was a “very serious example” of dangerous driving causing death. There was a very high alcohol reading (.202 percent) and the applicant was unlicensed from the accumulation of demerit points. There were opportunities given to her to refrain from driving which were ignored. The driving itself was “erratic and uncontrolled”, exceeding the speed limit and extending over two kilometres before ending in a serious single-car collision that injured the applicant and killed her sister. [10] The applicant’s traffic history at sentencing was described by Judge Kent QC as “significant” and the Court of Appeal described it as “bad”. She had a prior conviction for driving under the influence (in May 2011) and she had accumulated demerit suspensions such that she was unlicensed at the time of the offence. [11] It is clear that the nature of the offence and the applicant’s traffic history up until the date of the offending militates against the discretion being exercised in the applicant’s favour. -- 4 of 10 -- 5 The applicant’s character [12] The applicant accepts that she had a “problem with drinking” prior to the offending, including binge drinking from an early age. She has been diagnosed with alcohol use disorder. [13] There was a two-year delay between the date of offending and sentencing. Prior to sentencing, the applicant underwent assessment and was receiving treatment for diagnosed conditions being PTSD, major depressive disorder and alcohol use disorder. In 2018, it was opined by a psychiatrist that if the applicant “remains abstinent from alcohol and follows the treatment recommendation he considered it unlikely she would reoffend”. Kent QC DCJ found that the applicant’s “rehabilitation is well underway”.1 [14] There was material put before Kent QC DCJ and before this Court in relation to personal difficulties the applicant was experiencing at the time of the commission of the offence. She suffered from self-loathing and self-medicated with alcohol and cannabis. As detailed above, the applicant received extensive assistance prior to the sentencing, which has continued, in relation to addressing issues relating to alcohol misuse as well as treatment to address mental health issues both as a result of the offence and her prior personal circumstances. [15] The applicant is extremely remorseful for the offending and expressed to the Court on sentence that she was “disgusted by [her] driving history and greatly ashamed by it”.2 She had, and continues to have, the support of family members, who wrote references on her behalf for the sentencing. [16] The applicant was imprisoned for a period of 90 days from 30 May 2018 to 27 August 2018. The applicant continues to be subject to the operational term of the suspended imprisonment which expires in August 2023. [17] The Court of appeal, in dismissing the Attorney General’s appeal, noted the applicant’s “fundamental decency as well as the sincerity and success of her 1 Sentencing Remarks PP71-73. 2 Affidavit of Candice Chmieluk affirmed 7 March 2022 at [10]. -- 5 of 10 -- 6 attempts to turn her life around”. This is further supported by the applicant’s affidavits on this application, where she notes that she will have to “continue living with the consequences of [her] decision every day of [her] life”,3 and says that due to what happened to her sister she could never drink and drive again. The applicant’s conduct subsequent to the order [18] Since the order was imposed, the applicant has not committed any further offences of any kind, including in the lengthy period between the offence and sentencing (some two years) and the almost four years subsequently. The respondent properly accepts that there appears to be a period of 12 months or more of driving without incident subsequent to the offence, but prior to sentencing. [19] The applicant submits, at paragraph 17 of her written submissions, that the rehabilitation that was underway before sentence has only strengthened since. After close analysis of the supporting affidavit material, I agree with that submission. [20] The affidavit evidence details that the applicant has not consumed alcohol and has not driven. Prior to being sentenced, the applicant completed the ‘Back in Control’ Drug Education and Relapse Prevention Program with Queensland Health, and the Queensland Traffic Offenders Program.4 The applicant has continued to willingly accept support from relevant agencies and consults with her psychologist. The applicant demonstrates strategies she engages in to not resort to alcohol use. She is committed to being a good mother and a contributing member to society. As already stated, she retains the support of members of her family. [21] The applicant appears to now recognise that having a driver’s licence is a privilege5 and, due to a combination of circumstances, not having a licence has negatively impacted her young children and her work. Further, and importantly, she appears to have insight into the importance of being a careful and responsible driver in the future and is committed to being that kind of person generally. [22] Whilst the applicant does not expressly state this in her affidavit material, it appears clear that she recognises that she will be entrusted with the care of driving her two 3 Affidavit of Candice Chmieluk affirmed 24 January 2022 at [31]. 4 Affidavit of Candice Chmieluk affirmed 24 January 2022 at [29]. 5 See Affidavit of Candice Chmieluk affirmed 7 March 2022 at [10] and [11]. -- 6 of 10 -- 7 young children as well as needing to be responsible for other road-users and recognises that this is why it is necessary to be a careful and responsible driver. [23] Around the time of sentencing the applicant was approached by the Queensland Transport Offender Program to be a speaker for the initiative. While she has had to decline the offer as she has been unable to travel to the program centres, the applicant has indicated a willingness to participate when she obtains her driver’s licence again.6 [24] The respondent acknowledges that the applicant has sought and continues to receive treatment for not only her mental health concerns but also, specifically, her relationship with alcohol. This has included attending 22 counselling sessions between 9 October 2017 and 10 October 2022, as well as attending AA. The respondent further accepts that the applicant’s remorse is genuine and continuing. Other relevant factors [25] I agree with and adopt what was said by Judge Irwin in Johnson v DPP (Qld) [2009] QDC 300: “… Some level of inconvenience can always be expected to flow from a disqualification. If it did not, a disqualification would not have the essential deterrence effect. However, it is another matter when there is an indication of the potential loss of employment arising from his not holding a driver’s licence.” [26] The applicant has sworn that this application is made for reasons of civic responsibility, namely to enable her to continue with a law abiding, self-sufficient lifestyle. It is relevant that the applicant resides in a regional area with limited public transport infrastructure.7 Her place of residence is some distance from the surrounding towns and without a driver’s licence she is unable to pursue further work opportunities. It also prevents her twin children accessing extra-curricular, social and sporting activities.8 The applicant expresses a desire to be more involved 6 Affidavit of Candice Chmieluk affirmed 24 January 2022 at [29]. 7 Affidavit of Candice Chmieluk affirmed 24 January 2022 at [14]. 8 Affidavit of Candice Chmieluk affirmed 24 January 2022 at [17]. -- 7 of 10 -- 8 in her children’s schooling by attending assemblies and volunteering in the school canteen, which she cannot do without a licence.9 [27] Expanding further on work impacts, the affidavit material establishes that the applicant’s current employer would be able to offer the applicant more projects and the applicant would have a significantly higher earning potential if she had her licence.10 [28] The respondent properly accepts that these kinds of factors are ones which weigh in favour of the exercise of discretion in granting the application (see, for example, Porter v Police Commissioner [2010] QDC 274). [29] The applicant remains subject to the suspended term of imprisonment until August 2023 which will continue to act as a deterrence to offending. Further, I am informed by the respondent that the applicant is subject to an interlock condition on her licence which will come into effect for a period of five years on either the date the disqualification is lifted or the date on which the disqualification period ends. The applicant will only be allowed to drive a motor vehicle fitted with an interlock device. Submissions of the parties [30] I have already detailed most of the submissions of the parties above. After detailing the relevant factors to consider, the applicant submits “that in all the circumstances it is in the interests of the community that the disqualification be removed taking into account her character, particularly in the time since the offence, the time she has spent without a licence and her family’s situation.”11 [31] The respondent concludes her written submissions as follows: “[58] On balance, the respondent accepts that it is open to the Court to consider there is sufficient evidence of the applicant’s significant progress with and prospect of continued rehabilitation. There is evidence of demonstrable ownership of the conduct which led to the offending and 9 Affidavit of Candice Chmieluk affirmed 24 January 2022 at [15]. 10 Affidavit of Candice Chmieluk affirmed 24 January 2022 at [18]. 11 Written Submissions of Applicant at [21]. -- 8 of 10 -- 9 attempts to contribute meaningfully to the community since the date of the offence by the applicant. [59] The period of incarceration, the extra-curial punishment noted by Kent QC DCJ and the denial of the ability to hold a driver licence for the past 3 years and 6 months in the community may be considered to have had quite the requisite punitive effect. [60] The respondent accepts the applicant has taken significant steps to seek treatment for her mental health conditions, both prior to and since sentencing. Key to this is her claimed sobriety since 2017, continued attendance at AA meetings and resumed regular contact with her psychologist. [61] In the absence of reoffending both prior to sentencing and in the period since the disqualification, the respondent concedes it is open for the court to be satisfied that there has been a sufficiently positive change in the applicant’s character subsequent to her offending. [62] In the event the Court is satisfied of the above matters, the respondent does not identify any further notable matters that might significantly affect the Court’s discretion when considering the application. In the circumstances and on the available evidence, the application to remove the disqualification from the applicant’s licence is not opposed.” The disqualification should be removed [32] In determining whether to remove a disqualification, the court must balance the interests of the applicant in having the disqualification removed and those of the community in seeing that the licence is not restored prematurely. [33] The offence was very serious. The applicant had a bad traffic history and was driving unlicensed at the time of the offence. However, the affidavit material establishes that protection of the community no longer requires disqualification of the applicant’s licence. It is highly relevant that the reasons that the applicant applies for removal of the disqualification are for the potential for enhancement of her young children and for employment reasons. -- 9 of 10 -- 10 [34] I am satisfied that there has been a substantial change in character and conduct following the applicant’s sentence and she has demonstrated a legitimate purpose for obtaining a driver’s licence.12 I am thus satisfied, on a balancing of considerations, that it is proper that the disqualification be removed with effect from 14 March 2022. Order [35] The disqualification of driver’s licence imposed on the applicant in the Southport District Court on 28 May 2018 be removed as of 14 March 2022 pursuant to s 131(10) of the Transport Operations (Road Use Management) Act 1995. 12 See Slivo v Commissioner of Police [2016] QDC 46 at [39]. -- 10 of 10 --