R v. Markusik [2006] QDC 327 (31 August 2006)

It was imposed, along with a five year sentence of imprisonment, suspended after 18 months had been served, in respect of an offence of dangerous operation of a motor vehicle, causing grievous bodily harm with a circumstance of aggravation.

Two ladies, who were reunited for the purpose of enjoying Christmas together, one having flown from interstate, were seriously hurt. The circumstance of aggravation was constituted by an excessive blood alcohol concentration. What I have said does not reveal the seriousness of the injury to the victims, or the extent of intoxication of Mr Markusik at the time, which was around 10 p.m. on the night. His blood alcohol reading was .262 at 11.25 p.m. The sentencing Judge considered that as equivalent to a reading of .292.

On that basis, as Mr Kelly, for the respondent, says, Mr Markusik could only have been walking with difficulty, and certainly should not have been driving. The story was that some kind of family emergency led to his making the ill-fated decision to drive. It was at one of the big signalised intersections on Reedy Creek Road that Mr Markusik drove his vehicle through a red light and ran into that containing his victims.

Undoubtedly, the offence was out of character. The Court accepts that. It came on top of a relatively minor traffic history. There was an offence in 1989 in New South Wales of failing to supply a breath specimen which resulted in a $1,000 fine. According to the criminal history, it was accompanied by a three year disqualification, but Mr Markusik and his daughter, who has assisted him to present arguments to the Court today, says there was no disqualification. There were speeding offences, resulting in relatively modest fines in 1998 and 2002. There is no other criminal history.

Mr Markusik is a family man. His society is valued by his family, as, indeed, has been his ability to drive and assist his daughter, in particular, by driving her children to sporting and musical activities, and the like. It cannot be suggested that Mr Markusik's personal assistance in that way is vital, as his wife drives as well. It may be that her vehicle is not so well adapted to providing transport for family members.

Mr Markusik feels deeply that he was harshly dealt with by the sentencing Judge. While I can understand that, he was unable to persuade the Court of Appeal, which dismissed his application for leave to appeal against sentence on the 26th of July 2004 - see [2004] QCA 249. The serious aspects of the offence are there noted.

Oddly, the appeal was based on the assertion that insufficient consideration was given to Mr Markusik's age, taken by the Court of Appeal to be 72. Oddly, he had been taken by the sentencing Judge to be 73. Neither is correct. He was born in 1938.

Mr Markusik, in the excitement of the hearing today, has complained of what appear to be discrepancies in his prosecution as to dates and the like, and of what he sees as injustice when he compares his sentence with those meted out to others. Those matters are of no consequence in today's application, however strongly Mr Markusik might regard them. What is important is the seriousness of the offence, or "the nature of the offence", to refer to the language of subsection (2C) of the section I mentioned.

The disqualification was imposed in an unusual way. Her Honour had plainly concluded her sentencing remarks when the Prosecutor inquired whether she wished to make any order in respect to disqualification. The Judge was somewhat taken aback at the question, but went on immediately to disqualify Mr Markusik from obtaining or holding a driving licence for a period of five years. That was a sensible enough course to take, given that a sentence of five years had been imposed. It contemplated, as was bound to, and did, happen, that Mr Markusik would be returned to the community after 18 months, facing three and a-half years of inability to drive legally. There is not the slightest suggestion that he has been driving when he should not.

Mr Kelly has, in his helpful written submissions, referred the Court to the case of Shirley [1969] 1 Weekly Law Reports 1357 at 1358, which Williams J. adopted in Burton v. Commissioner of Police, Queensland (1990) 10 MVR 329, an application similar to the present one, but brought in respect of a life-time disqualification. The submission offers the suggestion that a further relevant consideration, over and above those in section 131 subsection (2C), is the effect that "long periods of disqualification may have on the reintegration of the applicant in the community".

In my opinion, the Court ought to acknowledge that there are circumstances, such as promoting contact and mutual assistance within families, which should be taken into account in circumstances like these, as well as the customary ones focussing on the ability of applicants to earn an income.

So far as the other matters for consideration, according to the subsection, are concerned: character of the person disqualified, conduct subsequent to the order, and other circumstances, those might be seen as favourable to the application with the qualification that it can be said, and the ordinary member of the community might well say, that, measured against the disqualification ordered by her Honour, Mr Markusik has, to this point, suffered only a tiny part of the inconvenience which the order envisaged. He obtained his release from prison nine months ago after a good record there, as Exhibit 1 tends to establish.

The Judge's order contemplated 42 months in the community with the disqualification operating. I respect Mr Kelly's approach that the present application is simply made too early. There is a potential cost in an application of the present kind, because subsection (2D) provides that where an application is refused, a further one shall not be entertained if made within one year after the date of the refusal.

Everything I have said is subject to the following observation, that the Act invites offenders in Mr Markusik's position to make applications like his. It gives a good deal of encouragement to those who can demonstrate rehabilitation to obtain a licence - which frees them from the temptation, to which many notoriously succumb, to drive while disqualified, and enables them to retrieve a normal life in the community.

I feel emboldened, by reading the transcript of her Honour's sentencing remarks, to regard the disqualification she pronounced as something of an afterthought, by which comment I am not suggesting it was other than entirely proper. It does not, in my opinion, indicate any mature judgment that in the interests of the safety of the general community, Mr Markusik ought to be kept off the road unless there was some dramatic change in circumstances. The point of the disqualification is to punish and, I suppose, to deter others from offending, as Mr Markusik did.

I ought to note the remorse appearing in Mr Markusik's affidavit, which I think is genuine, as it would be in any decent person.

I respect Mr Kelly's approach to the extent of regarding the present application as premature, but I would not reject it. Rather, I would take up the possibility express in subsection (2C) of removing the disqualification from a date to be specified, which involves a deferral of the removal. In my opinion, the interests of justice, including those of the community, and the victims in particular, are served if Mr Markusik has to suffer 50 per cent of what the Judge's order intended by way of disqualification.

If my calculation is correct, that produces an order that the disqualification imposed in this Court's order of the 31st of May 2004, should be removed after 13 months from today. That will produce an effective disqualification of 21 months following release from prison but relieve Mr Markusik from the disqualification's extending for the following 21 months, over which it would otherwise have lasted.

HIS HONOUR: So, do not drive for 13 months, Mr Markusik, but after that you will be right.