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[2016] QDC 46
General information, not legal advice.
District Court of Queensland
2016-03-09
Original judgment source is linked above.
M Cable, Senior Legal Officer, Office of Commissioner of Police
[1] On 11 July 2001, the applicant was convicted in the Brisbane District Court of dangerous operation of a motor vehicle. He was placed on probation for two years, ordered to perform 240 hours of unpaid community service and was disqualified from holding or obtaining a driver licence absolutely. The offence occurred on 27 July 2000.
[2] He has applied under s 131 of the Transport Operations (Road Use Management) Act 1995 ("TORUM") to this court seeking an order to remove the disqualification.
[3] Section 131(2) of TORUM provides:
"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 two years, may, at any time after the expiration of two years from the start of the disqualification period, apply for the disqualification to be removed."
[4] Section 131(2C) of TORUM 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."
"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 licenced to drive again - after suffering a sufficiently lengthy deprivation of the ability to drive to satisfy the community's demand for punishment."
[7] This application is made more than two years after the disqualification was ordered. The applicant is therefore eligible to make the application.
[8] Section 131 of TORUM does not create a right for an applicant to have a disqualification removed, rather it provides the court with the discretion to make such an order.
[9] 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.
[10] In deciding whether to exercise its discretion the court is guided primarily by s 131(2C) of TORUM which requires the court to consider:
[11] The offence of dangerous operation of a motor vehicle involved the applicant driving his motor vehicle at speed, with two passengers in the vehicle, when he lost control of it and ran up onto the footpath and collided with a tree. He was travelling at approximately 90kph in a 45kph zone. Remarkably, no-one sustained any injuries.[2] The applicant has attested that the offence occurred when he was "on the run from probation or parole."[3]
[12] The applicant has a three page criminal history,[4] with convictions for offences including:
• possessing restricted item without reasonable excuse;
• possessing anything used in the commission of crime;
[13] Significantly, a number of those offences were committed after the order the subject of this application was made. They include breaching a bail undertaking, breaching fine option orders, and significantly, serious drug offences. The applicant was convicted of drug related offences including trafficking in dangerous drugs on 20 November 2006 for offences that occurred between 2002 and 2004. He was sentenced to 13 years imprisonment on 20 November 2006 with a declaration that he had already served 586 days of pre-sentence custody.
[14] He was released on parole on 7 September 2015 and is the subject of a parole order until 26 November 2018.[5]
[15] The applicant has a number of traffic convictions,[6] all bar one of which occurred prior to the disqualifying offence. The convictions include:
[16] Significantly, the applicant was also convicted of an offence of disqualified driving in the Brisbane Magistrates Court on 26 July 2002 for an offence that occurred on 27 March 2002.
[17] Having regard to the applicant's criminal history, it is clear that he showed complete disregard for the law and committed serious offences whilst subject to this absolute disqualification during the period of time leading up to his incarceration. His behaviour during that period of time does him no favours in this application.
[18] His incarceration commenced on 13 April 2004. He was only released on 7 September 2015. Hence, the applicant has only been in the general community since his release for a period of six months.
[19] The applicant attests in his affidavit, that whilst in prison he completed courses in literacy, numeracy, welding, construction, horticulture, drug rehabilitation and preventing recidivism, and he says he has been educated about the dangers and consequences of criminal behaviour.[7] I note that no independent evidence supporting his claim to have completed these courses has been provided to the Court. Nevertheless, I am prepared to accept that he completed them as attested to.
[20] The applicant attests that he is remorseful for his actions in relation to the dangerous driving offence and regrets the decisions he made in relation to other offences.[8]
[21] He has attested that since his release from custody, he has performed some unpaid work of a spray painting nature for an associate (Mr Fellah Hessein) but is otherwise relying on Centrelink payments and financial support from his sisters.
[22] He has also attested that he is applying for the removal of the disqualification of his licence in order to improve his chances of obtaining employment and to improve his ability to support his family.
[23] He specifically relies upon the fact that he has committed no traffic offences since March 2002 and has not been convicted of any criminal offence since November 2006, and even then, that was for offences that occurred from 2002 to 2004.
[24] Of course, that submission must be read in the context of the applicant having served a substantial period of imprisonment since that time.
Any other circumstances - s 131(2C) TORUM
[25] In Johnson v DPP (Qld),[9] his Honour Judge Irwin at page 17, discussed inconvenience as a consequence of disqualification and also the possible loss of employment from not holding a driver licence:
"For completeness, I observe that I do not consider the inconvenience to the applicant and his wife arising from the licence disqualification in his day to day life as a factor in favour of removing it. Some level of inconvenience can always be expected to flow from a disqualification. If it did not, a disqualification would not have the essential deterrent 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 respondent has acknowledged that the impact of disqualification upon employment is a significant factor to which the court should give proper weight, although the respondent submits that in this matter there is no evidence that the disqualification has adversely affected the applicant's ability to obtain some type of paid employment. Furthermore, it is submitted that at present, the applicant does not have paid employment to support his claim that he requires a licence for work related purposes.
[27] Another relevant consideration in an application to remove a disqualification is whether the applicant has suffered a significant amount of time without a driver licence, that is, a "sufficiently lengthy deprivation of the ability to drive to satisfy the community's demand for punishment" (Tabakovic v Commissioner of Police [2009] QDC 191).
[28] The applicant has been without a driver licence for 15 years as a consequence of the disqualification, however for nearly 12 of those years he was incarcerated. Furthermore, prior to his incarceration, despite being subject to a probation order and other community based supervision, he continued to commit criminal offences as well as a significant traffic offence.
[29] Therefore, whilst the applicant has been in the community for approximately three years three months whereby he was inconvenienced by the disqualification, it must be considered that the applicant was not of good conduct during the passage of time prior to his incarceration,that is a period of two years nine months.
[30] The applicant had only been released from imprisonment for slightly less than two months when the current application was made.[10] As at today, only six months have passed since his release.
[31] The respondent has submitted that the nature of the original offence, when considered together with the applicant's continued offending conduct throughout the period of time prior to his incarceration and the relatively short period of time that has passed since his release, supports the contention that community expectation is that he should endure a further period of time whereby he be deprived from driving to satisfy the punishment aspect of the order. The respondent further submits that the passage of time that has passed since his release from incarceration is insufficient for the applicant to demonstrate that he is of good character and can be expected to continue to conduct himself in appropriate ways.
[32] In Morgan v Commissioner of Police,[11] his Honour Judge Newton noted the difficulties in balancing the "interests of the applicant in having his or her licence restored with those of the community and not prematurely sanctioning the right of an offender to resume driving after committing a serious offence which placed in jeopardy the safety of members of that community". In that case his Honour found that it was not proper to remove a disqualification imposed nearly five years earlier (of which nearly two and a half years had been served in the community) given the particularly serious nature of the offence.
[33] The respondent has submitted that for these reasons an order removing the applicant's disqualification at this stage is premature.
[34] The applicant is now 35 years of age and is presently living with his mother and 12 year old son. He is unemployed, although he does some infrequent work spray painting for Mr Hessein and has had some casual work delivering gymnasium equipment. In submissions from the bar table, the applicant said that he is far more mature now than when he committed offences in the early part of the last decade. In effect, he has submitted that he has grown up since that time.
[35] He also said that he believes his chances of finding full-time employment will be improved if he holds a driver licence. The essence of his submissions are that he is doing his best to live a law abiding lifestyle and is trying to be a productive member of society. In effect, he has thrown himself before the court seeking a merciful outcome to his application.
[36] I also note the positive comments made by Ms Kate Black of the Catholic Prison Ministry and Mr Tom Griffiths of Drug ARM Australasia[12] in references supporting the applicant.
[37] Notwithstanding the apparent genuineness of the applicant's desire to live a law abiding lifestyle and to become a productive member of society and to support his family, the circumstances do not support a conclusion that this is the appropriate time to order the removal of the disqualification.
[38] Whilst the serious nature of the original offence is a relevant consideration, it is not of such seriousness that if other considerations were favourable to the applicant that it, in itself, would prevent the making of the order sought.
[39] Before such an order should be made, the applicant would need to satisfy the court that there had been a substantial change in character and conduct on his behalf subsequent to the original order and that he had demonstrated a legitimate purpose for obtaining a driver licence as well as there being a "sufficiently lengthy deprivation of the ability to drive to satisfy the community's demand for punishment".
[40] In my opinion, the applicant has failed to demonstrate that there has been a substantial change in his character or conduct since the order was imposed. In a reasonably short period of time after the making of that order the applicant committed another serious driving offence (which resulted in another order for absolute disqualification)[13] and serious criminal offences resulting in him being sentenced to 13 years imprisonment. He served 12 of those years and was only released on 7 September 2015. Whilst the applicant has submitted that he is a "changed man" and successfully undertook numerous courses whilst incarcerated, I am nevertheless reticent about taking his behaviour whilst a prisoner into account. The highly controlled and restricted environment of a correctional institution does not lend itself well to allowing an assessment to be made as to the degree of improvement a person's character may have undergone during the period of incarceration. Similarly, an improvement in a prisoner's conduct in such an environment does not necessarily demonstrate that continued improved conduct upon release is likely. That is not to say that good behaviour whilst incarcerated is an irrelevant consideration. The issue is how much weight should be given to it.
[41] The applicant's lengthy period of incarceration is also relevant to another issue. As I have already noted, a driver license disqualification can hardly be considered a punishment for a prisoner during the period of incarceration. In this case the applicant's behaviour post the original order but prior to his incarceration was lamentable and of no assistance to him in this application. The further difficulty he faces is that he has only been back in the general community for approximately six months. In my view, that is an insufficient period of time to satisfy the punishment aspect of the original order.
[42] I accept that the applicant's chances of securing employment would be improved if he were the holder of a valid driver licence, but that is not the only consideration in this matter. I also note that, notwithstanding the contents of the affidavit of Mr Fellah Hessein to the effect that the applicant would need to be the holder of a valid driver licence to enable him to continue to work for Mr Hessein, the applicant himself stated that he only gets occasional work from Mr Hessein and is hopeful of securing employment elsewhere.
[43] For these reasons, in my view, the application is premature and the application should be refused.
[2] These facts are provided in the respondents Outline of submissions. The applicant has not contested these facts as being accurate.
[3] Affidavit of Raid Mansour Slivo filed 20/10/15 at [9].
[5] Affidavit of Raid Mansour Slivo filed 20/10/15 at [14].
[7] Affidavit of Raid Mansour Slivo filed 20/10/15 at [29].
[8] Affidavit of Raid Monsour Slivo filed 20/10/15 at [16].
[10] Originating application filed 20/10/15.
[13] In fact, the applicant was the subject of two other absolute disqualification orders imposed on 26 July 2002 for offences that occurred both before and after the offence the subject of this application. Those orders of absolute disqualification were removed by order of the Magistrates Court on 29/1/16. In submissions before this Court, counsel for the respondent indicated that no opposition was placed before the Magistrates Court to the removal of such orders due to an administrative error.
Slivo
Commissioner of Police [2016] QDC 46