Burton, Re [1990] QSC 23

\~I.J( IN THE SUPREME COURT OF QUEENSLAND O.S. No. 28 of 1989. Before Mr. Justice Williams IN THE MATTER of The Traffic Act 1949 (as amended) - and - IN THE MATTER of an application by GRAHAM JOHN BURTON for the removal of a disqualification from having or obtaining a driver's licence. JUDGMENT - G.N. WILLIAMS J. Delivered the 28th day of February, 1990. CATCHWORDS: Vehicles and traffic - absolute disqualification of licence after motor manslaughter - bad case - application for removal of disqualification - s. 57(2)(a) Traffic Act - served 5 years of 10 year sentence then about 2 years on parole before application - removal of disqualification granted - recommend limited licence Reg. 108 Traffic Regulations. Counsel: Solicitors: Hearing dates: A. Gundelach for applicant. B. Isdale for respondent. Keith H. Henley & Co. for applicant. Crown Solicitor for respondent. 1st and 9th February, 1990. -- 1 of 13 -- IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Williams O.S. No. 28 of 1989. IN THE MATTER of The Traffic Act 1949 (as amended) - and - IN THE MATTER of an application by GRAHAM JOHN BURTON for the removal of a disqualification from having or obtaining a driver's licence. JUDGMENT - G.N. WILLIAMS J. Delivered the 28th day of February, 1990. Consequent upon the applicant pleading guilty to two counts of manslaughter arising out of a motor vehicle collision, the original sentence imposed was reviewed by the Court of Criminal Appeal, and by its order of 20th July, 1983 the applicant was "absolutely disqualified from holding or obtaining a licence to drive a motor vehicle." He now applies pursuant to s. 5 7 ( 2 )(a) of the Traffic Act for an order removing that disqualification. Were it not for the fact that Andrews J. in delivering the judgment of the Court of Criminal Appeal (with the concurrence of Connolly and Carter JJ.) observed, after ordering absolute disqualification, that "it would be my purpose and intent that that be taken literally and that he not be allowed to have a licence again notwithstanding the provisions of the Traffic Act in relation to an application that he might make under the appropriate section", I would have, given the material in -- 2 of 13 -- 2 evidence, no hesitation in granting the order sought. The observation contained in the reasons for judgment of the Court of Criminal Appeal is, of course, not binding on me, but the fact that such a statement was made requires me to make a more detailed review of the relevant material before arriving at a decision. The accident giving rise to the manslaughter convictions occurred in September 1982. The applicant was then 23 years of age. Early on the Saturday evening in question he was driving a loaded prime mover and semi-trailer of approximately 23 tonnes in weight in a southerly direction along Ipswich Road, Rocklea. It appears that prior to reaching the intersection where the collision in question occurred, the applicant drove through three intersections on each occasion against a red traffic light. Andrews J. in the Court of Criminal Appeal noted that on each of those occasions he went "through a red light bullying his way and demonstrating this attitude by sounding the air horn of his vehicle as a warning to all other drivers to keep out of his way". Apparently drivers of other vehicles at or near those intersections had to take evasive action to avoid a collision. At the Granard Road intersection a vehicle containing a husband and wife and their infant son stopped waiting for the green light permitting them to proceed. After obtaining the green light that vehicle entered upon the intersection and travelled a substantial distance before it was struck by the oncoming prime mover being driven by the applicant. The sentencing judge, Macrossan J., observed that the applicant "drove through a light which had been red against you for a -- 3 of 13 -- 3 substantial period, again blowing your horn." In the collision the female passenger and her infant son were killed. There is no doubt, as Macrossan J. observed, that the applicant's manner of driving at the time in question was "extremely contemptuous of other users of the road". He regarded it, understandably, as "an extremely bad case". In addition the applicant had, at the relevant time, a blood alcohol level of .13. After referring to the applicant's previous traffic history, to which I will refer in a moment, Macrossan J. sentenced the applicant to imprisonment with hard labour for four years and ordered that his driver's licence be suspended for a period of ten years. The Attorney-General appealed and the Court of Criminal Appeal substituted a sentence of imprisonment with hard· labour for ten years, and absolute disqualification of the driver's licence. In addition to the other remarks I have quoted above, Andrews J. stated that it was "difficult to imagine a more serious case of criminal negligence than this in the handling of a motor vehicle". All of those observations as to the serious nature of the offence were clearly justified, and before me Counsel for the applicant did not challenge those descriptions of the incident. The initial sentence was imposed on 21st April, 1983, and that of the Court of Criminal Appeal on 20th July, 1983. Thereafter the applicant served a period of five years imprisonment. He was released on parole in April 1988. He observed in his affidavit: "During my imprisonment, I had corhe to terms with the two deaths for which I had been responsible. -- 4 of 13 -- 4 I suffered and continue to suffer a great deal of remorse for what I have done." As will appear from references to which I will refer later the applicant was a "model prisoner". He has also received a favourable report from his parole officer. Since being released on parole he has found regular employment and has married. He has been employed for the last fifteen months as a foreman painter; his employment is permanent and he intends to remain with his current employer. His wife has a driver's licence and vehicle, and she has driven him to work on a daily basis. That routine has continued until now notwithstanding the pregnancy of his wife. The evidence indicates that the applicant's wife will give birth to their first child within the next few weeks and once she is burdened with the responsibilities of that young child it will be impossible for her to continue driving the applicant to work each morning. Given the nature of his employment it is necessary that he take painting equipment with him, and his work takes him to various sites around the city. In consequence it is not feasible to use public transport, nor is it commercially viable for his employer to provide him with a chauffeur. The main reason for the applicant at this stage seeking the removal of his licence disqualification is that he wants to be able to keep his job and continue being a worthwhile member of society, rather than a drain on the public purse by seeking social security payments. Further, he points out that it may well be necessary for him to transport his wife and/or child particularly in the case of medical emergency. -- 5 of 13 -- 5 I mention at this stage, and it is a matter to which I will return later, that essentially he wants to be able to drive a motor car; he is not seeking a licence to drive articulated vehicles and he does not wish to become a "professional driver". As I previously mentioned he had a number of convictions for traffic offences prior to the September 1982 accident. A copy of his traffic record is exhibited to his affidavit. When he was aged 16 he was convicted of unlicensed driving on 3rd June, 1975 and fined $20.00; apparently he was involved in an accident on that occasion. He was then involved in a minor accident on 15th September, 1978 but no charges were preferred. On 17th March and 3rd May, 1979 he paid the monetary penalty on speeding tickets issued to him. Then on 19th May, 1979 he was stopped by the police for creating undue noise, and he paid the appropriate penalty. But that also resulted in his being convicted of drink driving with a blood alcohol level of .17 per cent; for that he was fined $250.00 and disqualified from driving for nine months. Next he was involved in an accident on 18th March, 1980 and paid a fine for failing to give right of way. The next entry on the record is on 9th April, 1980 for driving a defective motor vehicle. Then on 29th July, 1980 he disobeyed a red light and paid the traffic fine imposed. Then it would appear that his licence was cancelled for a period, presumably because of the number of demerit points he had accumulated. The next entry is with respect to a conviction for driving without due care and attention on 7th October, 1980 for which he was fined $30.00. November, 1981. The final traffic offence was speeding on 8th -- 6 of 13 -- 6 Thus it can be seen that he had quite a bad traffic record, but it must be said that prior to the accident in question he had not been involved in any accident causing personal injury. Looked at in hindsight it could be said that in the years leading up to the accident resulting in his pleas of guilty to manslaughter the applicant was immature, emotionally unsettled, and a somewhat irresponsible young man. That is a vastly different picture than that presented by the applicant today, some seven and a half years after the incident in question. As previously stated he has been on parole since 21st April, 1988 and he has not demonstrated any anti-social behaviour during that period. His Community Correctional Officer has reported that the applicant "has re-established himself back into the community as a responsible law responding citizen and there is no evidence to the contrary that this pattern will not continue. 11 The report also notes that there is no indication that the applicant has any problem of alcohol abuse. According to the report his response to parole has been problem free; he has attended conscientiously to reporting and notification requirements. It is significant in my view that, not withstanding that the application was opposed by the Commissioner for Police, there was no evidence to suggest that the applicant has in any way breached the traffic laws since his release. I was also presented with a number of references; some of them were particularly interesting because they came from people who have been associated with the applicant both before and after the period of his imprisonment. The references are from a Prison Superintendent, two Deputy Superintendents, a Prison Officer, a -- 7 of 13 -- 7 Psychologist who visited him whilst in prison, his current employer, a member of Parliament now a Cabinet Minister, and four other responsible citizens. In general terms the references strongly suggest that since 1982, and perhaps whilst in prison, the applicant matured considerably and is now a much more responsible person. The prison officers speak of the extent to which he assisted fellow inmates in a number of ways. I would mention in particular that it appears he was the instigator of the formation of a Red Cross Society within the prison at Wacol. A number of those persons refer specifically to his application for a driver's licence, and all express the view that he is now such a changed person that he would highly value the possession of driver's licence. When a major offence is committed through the driving of a motor vehicle then the period of imprisonment must, in my view, represent the significant penalty imposed by the courts. In this case that penalty was imprisonment for ten years. Though the applicant is now on parole, he will be subjected to the supervision of that system until July 1993. By then he will have served five years gaol and five years on parole for his offence. In my view that represents an adequate penalty for an offence of this type. Since his release on parole in April 1988 he has been deprived of the privilege of driving a motor vehicle. For almost two years he has been subjected to that further restriction on his lifestyle. In my view it is in the interests of the community that this young man, he is still only 31 years of age, be able to continue -- 8 of 13 -- 8 a law abiding, self-sufficient lifestyle and not become a further burden on the public purse. He can best do that if he is able to retain his employment and provide for his wife and family. In my view he has been punished enough and ought to be given the opportunity of driving a motor vehicle again so that he can further his law abiding, self-sufficient lifestyle. I would quote with respectful approval the words of Sachs L.J. (with whom Karminski L.J. and Lawton J.) agreed in R. v. Shirley (1969) 1 W.L.R. 1357 at 5358: "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 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 overlong 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 an attitude may be, it springs from a human factor which it is wise to take into account." That passage was applied by the Court of Appeal (Phillimore and Stephenson L.JJ. and Waller J.) in R. v. North (1971) R.T.R. 366. That was an appeal from a disqualification from driving for life by a person with a bad driving record. Subsequent to that disqualification he had also been convicted of driving whilst disqualified. On an application out of time for leave to appeal against the life time disqualification the court observed that such a sentence "was clearly wrong in principle", saying that it "has the result, with a man like this and in modern conditions when driving is almost essential for so many people, -- 9 of 13 -- 9 that inevitably he is going to be caught every year or so driving and sent back to prison." Further, and this is not irrelevant application, a series of recent decisions Criminal Appeal would tend to indicate that to the in the in bad present Court of cases of driving, where the offender had significant previous traffic convictions, a disqualification for a set term of about five years was the norm. Indeed in some cases where the driving, and its consequences, were comparable with that in question here, a sentence of much less than ten years' imprisonment has been confirmed. That tends to indicate that this applicant has already been adequately punished for his crime. There is a worthwhile review of recent comparable decisions in the judgments of the Court of Criminal Appeal in R. v. Calder ex parte Attorney-General (1987) 1 Qd.R. 348. Calder itself provides a helpful comparison. Following a collision at an intersection in which two occupants of the other vehicle were killed, he was convicted of dangerous driving causing the death of those women. The learned sentencing Judge observed that it "represented a particularly serious case of falling below the standard of a reasonably prudent driver". Calder' s blood alcohol concentration at the material time was .17. He had at the time of the accident not long completed a period of 12 months' disqualification consequent upon his conviction for driving under the influence of liquor with a blood alcohol concentration of . 22. He was initially sentenced to imprisonment with hard labour for nine months and disqualified for two and a half years from holding a driver's licence. -- 10 of 13 -- 10 Connolly J. (with whom Derrington J. agreed) said it was "really a bad case of dangerous driving causing death". (353) The majority (Connolly and Derrington JJ.) were of the view that the sentence should be increased to four years and the period of disqualification increased to five years. In relation to the period of disqualification Connolly J. observed at 353-4: "The question of disqualification from holding a driver's licence was discussed during argument. One understands the view that long periods of disqualification may be appropriate. Indeed, R. v. Guilfoyle (1973) 2 All E.R. 844 and R. v. Boswell(1984) 1 W.L.R. 1047 both speak of substantial periods as high as seven to ten years in a bad case. Brisbane however is not the United Kingdom. There is no longer a tramway system and public transport can be a very difficult way to get about. This means simply that disqualification from holding a driver's licence can be much more onerous in its effect than would be the case in the great cities of Europe." McPherson J. dissented in Calder's case on the question of disqualification. He was in favour of disqualification for a period of not less than ten years. I will not refer in detail to the sentences reviewed by Connolly J. in the course of his judgment in Calder. Generally, as I have already indicated, they confirm that this applicant was given a severe sentence for a very bad crime. It is also interesting to note that the Court of Criminal Appeal in R. v. Watson (1962) Qd.R. 418 confirmed a sentence of imprisonment for 18 months on a conviction for manslaughter by negligent driving where the consumption of liquor was involved. In that case the period of disqualification was five years. In the earlier case of R. v. Watson (1960) Qd.R. 332 the Court reduced the sentence for manslaughter arising out of a motor vehicle accident where alcohol was involved to 18 months -- 11 of 13 -- 1 1 imprisonment. In that case the disqualification was for a period of three years. McPherson J. in Calder at 356 refers to the practice of imposing a period of disqualification extending well beyond the expiration of the term of imprisonment. In general I would agree with that. But in this case the applicant has already served a disqualification period of approximately two years since his release from prison. Bearing all of those factors in mind I have come to the conclusion that, notwithstanding the observations made in the Court of Criminal Appeal when dealing with the matter, it is appropriate at this time to remove the disqualification. I have already mentioned that during argument counsel indicated that the applicant was prepared to accept a restriction on his ability to obtain a driver's licence so that he was limited to driving only a motor car. During argument I canvassed the possibility of my lifting the disqualification only so far as it applied to a licence to drive a motor car, but counsel for the respondent submitted that I had no power to do so. That submission would appear to be correct in the light of the decision of the Full Court in Pfingst v. Gardtke ex parte Pfingst (1977) Qd.R. 42. But the Superintendent of Traffic has wide discretionary powers, particularly pursuant to Regulation 108, to refuse to issue a driver's licence for any class of vehicle. He may, for example, pursuant to Regulation 108 (2)(a) refuse to issue a licence to a person who in his opinion is "unfit to drive a motor vehicle". Given all the matters I have canvassed in this judgment I am of the view -- 12 of 13 -- 12 that it would be appropriate for the Superintendent to consider refusing to issue a licence to the applicant, other than a licence to drive a motor car, for a number of years into the future. Any subsequent application for additional licences could then be assessed in the light of the applicant's driving history since the removal of the absolute disqualification. I cannot, of course, give the Superintendent any direction; all that I can say is that it would be appropriate, in my view, for the Superintendent to consider acting in the way I have indicated. My order therefore will the imposed by the order of 20th July, 1983 be removed. be that the disqualification Court of Criminal Appeal of -- 13 of 13 --