DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES –
where the
applicant was convicted of drug offences, offences against the Weapons Act
Source
Original judgment source is linked above.
Catchwords
TRAFFIC LAW – LICENSING OF DRIVERS – QUEENSLAND –DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES –where theapplicant was convicted of drug offences, offences against the Weapons Act1990 and motor vehicle offences – where the sentencing judgedisqualified the applicant from holding a license absolutely –where theapplicant has subsequently been convicted of further drug offences – wherethe applicant applies for the disqualificationto be removed – whether thedisqualification should be removedBail Act 1980 (Qld)CriminalCode1899 (Qld), s 408(1), s 408A(1)(B)Drugs Misuse Act 1986(Qld)Penalties and Sentences Act 1992 (Qld), s 187Transport Operations (Road Use Management) Act 1995 (Qld), s 131(10),s 131(11), s 131(12), s 131(13), s 131(14)Weapons Act 1990(Qld)
Anderson v Commissioner of Police [2021] QSC
254, followed
Slivo v Commissioner of Police [2016] QDC
46, followed
Tabakovic v Commissioner of Police [2009] QDC
191, followed
Judgment (34 paragraphs)
[1]
Queensland Police Service Legal Services for the respondent
[2]
[1] The applicant, Kurt Patrick Hart, applies pursuant to s 131(10) of the Transport Operations (Road Use Management) Act 1995 (TORUM) to have his absolute disqualification to hold a driver's licence removed. The Commissioner of Police, who is the proper contradictor,[1] opposes the order.
[3]
[2] On 15 December 2015, Mr Hart (who is now 39 years of age) was convicted on his own pleas of guilty before Flanagan J (as his Honour then was) of a large number of offences charged both on indictment and summarily. A head sentence of four years' imprisonment was imposed with respect to offences against the Drugs Misuse Act 1986. He was found in possession of 43.907 grams of pure methylamphetamine, together with $5,435 cash, a set of digital scales, and a quantity of empty clip-seal plastic bags. It was accepted that the possession of drugs was for a commercial purpose. In addition to the drug charges, there were offences against the Weapons Act 1990 and, importantly, offences concerning motor vehicles.
[3] Mr Hart was convicted of one count of unlawful use of a motor vehicle,[2] two counts of unlawful possession of motor vehicles with intent to deprive the owners,[3] and two charges of dangerous operation of a motor vehicle.
[4] The Crown's submissions to Flanagan J, which were based on an agreed set of facts, concerning the circumstances of the dangerous driving were as follows:
[4]
"MR FINCH: Your Honour, again in terms of the detection of Mr Hart, he was found by police in a stolen vehicle. He was seen to be the driver of that vehicle, and he had, as a passenger with him, a young lady named Rebecca Kerri-Anne McFarlane. Initially Mr Hart was compliant with police's directions before he then turned and ran away from police. Your Honour, if I may then direct your Honour's attention to the second page of the schedule, and I'll return to what was found in the car.
[5]
The final paragraph of the second page of the schedule, your Honour will note that after exiting the car and running from police, Mr Hart entered a nearby rural residential property. He then got into a car which had been left outside that residence by its own, a 50 year old resident who had recently arrived home and left the keys in the ignition. Mr Hart got into that car and drove off - attempted to drive off in it. The owner of the vehicle approached it, Mr Hart drove towards that person, and the lower part of the front of the vehicle made contact with that person's knee, causing him some pain and almost knocking him over. That is the first count of dangerous operation of the motor vehicle, that is the driving towards the owner of the vehicle and striking him before driving through a boundary fence on the property.
[6]
Once back on the public streets Mr Hart was then seen again by police to be travelling at speed, and swerving onto the wrong side of the road. The police vehicle that saw him performed a U-turn and began to follow him. Mr Hart was seen to be overtaking vehicles by travelling into the path of other oncoming cars, forcing those oncoming cars to take evasive action. He was observed to be driving at speeds in excess of 100 kilometres an hour through three residential streets within the Beaudesert area before turning into a dead-end street that led to the Beaudesert Primary School. He then drove the through the entrance to that school and onto the school oval before crashing into a fence while attempting to drive through it. That is the second count of dangerous operation of a motor vehicle."[4]
[7]
[5] In imposing sentence, Flanagan J described Mr Hart's traffic history as "appalling". His Honour described the circumstances of the dangerous operation of motor vehicle charges as "very serious conduct, in terms of that type of offending". Acting under s 187 of the Penalties and Sentences Act 1992, his Honour disqualified Mr Hart absolutely from holding a motor vehicle licence.
[6] On 30 September 2021, Mr Hart applied to this Court for the removal of the disqualification order. That application failed.
[7] The current application was filed on 18 October 2024.
[8]
[8] The right to apply for the removal of an absolute disqualification is vested by s 131(10) of the TORUM which provides:
[9]
"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."
[10]
[9] Section 131 has various procedural requirements.[5] The Commissioner accepts that Mr Hart has complied with those requirements.
"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."
[12]
[11] Bowskill SJA (as her Honour then was) in Anderson v Commissioner of Police[6] approved of statements by Farr SC DCJ and Robin QC DCJ as to the principles to apply. Her Honour observed:
[13]
"[25] As observed by Farr SC DCJ in Slivo v Commissioner of Police[2016] QDC 46 at [9], on an application such as this:
[14]
"Ultimately the court must be satisfied, on the balance of probabilities, that it is appropriate to dispense with the original judicial officer's finding that a disqualification was appropriate. The onus of proof is upon the applicant to demonstrate that it is proper to remove the disqualification. If the applicant cannot satisfy the court that it is proper to do so, the application ought be refused."
[15]
[26] In Tabakovic v Commissioner of Police[2009] QDC 191, Robin QC DCJ, described the purpose of the provision as being to provide:
[16]
"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". [underlining added]"
[17]
[12] Section 131(14) commands the Court in hearing and determining an application brought under s 131(10) to consider all the circumstances of the case. However, specific consideration must be given to the following:
[18]
(a) "the character of the person disqualified";
(b) "the person's conduct subsequent to the order"; and
(c) "the nature of the offence".
[19]
[13] The offence which led to the disqualification was, as described by Flanagan J, a serious one. However, the offending occurred in November 2013, now over 11 years ago.
[14] The Commissioner's opposition to the application is primarily based on Mr Hart's overall criminal history, with particular emphasis upon offences which he committed after the disqualification was imposed. The real issues then are the assessment of "the character of [Mr Hart]" and his "conduct subsequent to the [disqualification] order", while Mr Hart points to various personal circumstances which he submits makes it "proper" to remove the disqualification.
[20]
[15] Mr Hart's criminal history commenced by convictions in the Beaudesert Magistrates Court in July 2003. He was, on that occasion, placed on probation for 12 months for an offence of entering premises to commit an indictable offence.
[16] What followed was then a steady stream of convictions. There are several convictions for offences involving motor vehicles.[7] There are also convictions for failures to comply with court orders:
[21]
(a) Beaudesert Magistrates Court, 5 May 2004, breach of probation order;
(b) Southport Magistrates Court, 2 November 2007, failure to appear in accordance with a Bail Act undertaking;
(c) Southport Magistrates Court, 9 October 2008, breach of a domestic violence order;
(d) Southport Magistrates Court, 5 May 2012, failure to appear in accordance with a Bail Act undertaking; and
(e) Brisbane Supreme Court, 28 July 2023, breach of suspended sentence.
[22]
[17] Most of the offences committed by Mr Hart are dishonesty offences, drug offences, motor vehicle related offences, or offences against the Weapons Act 1990.
[18] Mr Hart has been sentenced on three separate occasions in this Court. The first was for drug offences, motor vehicle offences, and other offences on 15 December 2015. The particulars of that offending have been previously analysed.[8]
[19] On 15 April 2020, Mr Hart pleaded guilty to various counts on indictment. Those offences were drug offences and offences generally related to drug offending. The primary offence was aggravated possession of a dangerous drug. Mr Hart also pleaded guilty to some summary offences. The result was a sentence of three years and six months to be suspended forthwith for an operational period of three years and six months. However, by the time of sentence, 269 days of declarable pre-sentence custody had been served. That was taken into account by the sentencing judge.
[20] On 28 July 2023, Mr Hart and his present partner, Chloe Anne Weier, were convicted on their pleas of guilty of trafficking in dangerous drugs between 3 February 2021 and 28 October 2021.
[21] As already observed, Mr Hart filed an application on 1 September 2021 seeking the removal of the disqualification order. Both Mr Hart and Ms Weier swore affidavits in support of that application where they spoke of Mr Hart's landscaping business and his need to have a driver's licence. Ms Weier said:
[23]
"I am proud to say that not only has he[9] been out of prison for more than one year, but he has also started his own business offering landscaping and consulting services, he no longer uses drugs and has been drug free for over one year." (emphasis added)
[24]
[22] Mr Hart's first application to remove the disqualification was made in the period over which both Mr Hart and Ms Weier were trafficking in drugs. In sentencing Mr Hart and Ms Weier, Crowley J observed that the trafficking occurred over a relatively significant period of time between February and October 2021. His Honour noted that there were a large number of customers and while the profit that was derived was not clear, there were at least $100,000 in bank transfers. His Honour noted that the drugs were supplied in small quantities and then observed:
[25]
"I also accept that at the time that each of you were trafficking and committed these offences because, largely, you were drug users yourselves, and you were using the funds to feed your own habits, as well as to support your day-to-day living."
[26]
[23] Mr Hart had, by the time he was sentenced by Crowley J, served almost two years' imprisonment. His Honour took that time into account by lowering the head sentence to five years' imprisonment from a starting point of about seven, and then suspended that sentence after service of a further three months, which would have seen Mr Hart released at the end of October 2023. As of today, Mr Hart has only been back in the community for about 18 months.
[24] In support of the application, both Mr Hart and Ms Weier swore affidavits.
[25] Mr Hart is now employed by Rogers Energy Services who values him as an employee but say that they hope that Mr Hart can obtain his licence so that he can progress to driving trucks. This was not his only recent successful employment, as Jessica Ede provided a letter explaining that Mr Hart worked on her employer's (Singh's Enterprises Pty Ltd) poultry farm. He left that employment on good terms. Similarly, Mr Hart worked for ADHD Construction Services Pty Ltd. A director, Mr Shannon Williams, speaks highly of him.
[26] Ms Weier wrote a letter which was exhibited to Mr Hart's affidavit. There, she speaks of the positive impact upon Mr Hart of the birth of their daughter on 14 July 2022. She says that Mr Hart is working hard to provide for the family. As they live in Beaudesert, there are limited transport options, and this is causing problems. Mr Hart's mother, Toni Louise Hart, also provided a letter exhibited to Mr Hart's affidavit. She observed that Mr Hart is a good father to his daughter and since being released from prison has worked hard and consistently.
[27] Mr Hart says that he is remorseful for his past criminal activity. He says that the birth of his daughter has changed his perspective on life. He vows not to return to criminal activity. He explains that Ms Weier supports him, and he is focused on discharging his responsibilities to his family.
[28] It is obvious that Mr Hart, and indeed Ms Weier, either lied on Mr Hart's first application to have his disqualification removed or gave false instructions to their legal representatives when they were sentenced for trafficking in 2023. On the application to remove the disqualification it was said that Mr Hart was drug free, but on sentence for trafficking it was said that the trafficking was motivated and explained by his and Ms Weier's drug addiction.
[27]
[32] It was accepted by the parties that costs should follow the event.
[28]
The application is dismissed.
The applicant is to pay the respondent's costs on the standard basis.
[29] I accept that Mr Hart's circumstances have changed given the birth of his daughter and that he is motivated to live a law-abiding life.
[30] While Mr Hart has been disqualified now for over nine years, he has spent little continuous time in the community. Since his disqualification, he has committed various offences and has been sentenced in this Court twice for serious drug offending. I agree with the remarks of Flanagan J who imposed the disqualification, that the offending which resulted in that order was serious. Mr Hart's current actions, while credible and encouraging, follow an extensive criminal history spanning 20 years and involving significant periods of imprisonment for serious offending.
[31] Having regard to the nature of the offending which led to the disqualification, Mr Hart's past criminal offending, and his serious offending since the disqualification, I conclude that notwithstanding the steps Mr Hart has taken towards rehabilitation since being last released from prison, he has not demonstrated that the disqualification ought to be removed.