Willocks v Commissioner of Police [2023] QDC 29

[4] As is evident from that sentencing outcome, the combined effect the offences of the applicant were serious, both considered individually and in combination. In the first instance, it involved the applicant driving his motor vehicle in pursuit of another being driven by the mother of a man towards whom his attentions were directed and pursuing that vehicle and driving dangerously in doing so over a substantial distance and ultimately in driving his vehicle so as to ram or collide with the other vehicle. The subsequent offence occurred after police investigation of the first and when the applicant was on bail and restrained by a condition of his undertaking, not to come within 200 metres of the complainant. However and having seen that man on 6 December 2016 and after an interaction with the complainant and an associate which led to the complainant damaging a headlight on the applicant's vehicle, the applicant drove his vehicle so as to use it, in effect as a weapon, to deliberately strike the complainant, mounting the kerb as he did so. The consequence was that the victim of this offending was substantially injured.

[5] When sentenced, the applicant had both a significant prior criminal history and traffic record. However, and as is a matter emphasised in the submissions for the applicant on this application, his prior criminal history which mainly demonstrated drug related offending, did not involve any offences committed after 2009 and as far as his traffic record was concerned and apart from the offences involving the use of the motor vehicle for which he was sentenced on 22 June 2018, all of that traffic history, bar a failure to stop at a red light in December 2017, had occurred in 2011 and earlier.

[6] In support of this application, emphasis was placed on what was noted in the sentencing proceedings, as the explanation for the applicant's behaviour lying in a context of animosity arising from the complainant's development of an intimate relationship with the applicant's daughter, commencing at a time when she was still a child, a situation which had developed to the complainant being restrained by a protection order naming the applicant and his daughter as protected parties. It was noted that this was recognised in the sentencing proceedings as providing some explanation for the applicant's behaviour but not as to "materially detract from the egregious nature of [his] offending conduct". It was also noted that the sentencing court proceeded particularly in terms of seeking to deter persons from resorting to such retaliatory behaviour.

[7] Otherwise, and for the applicant it was pointed out that his conduct since his release on parole on 18 March 2021 had been without any breach of his parole and that he had been attending to his rehabilitation, including by returning to work as a farm utility worker at a turf farm. His application was supported in that regard by the indication from an employer that he was regarded as a senior member of the staff and had, since his release from custody, performed diligently and to an excellent standard and that he would be of even more value to the employer in ability to work between multiple sites without relying on other employees to transport him, if he was able to attain a driver's licence. This was expressed in terms that it "may in turn enable him further opportunities for development and advancement within the company". On behalf of the applicant, it was pressed that the present situation in terms of reliance upon another employee to transport him, has a limiting effect upon his employment and his ability to earn additional income. Further and in the context of emphasis upon the particular circumstances that precipitated the applicant's offending, some particular emphasis was placed upon the following unchallenged evidence of the applicant:

"21. While remanded in custody and since my release, I have had time to reflect on my conduct.

1. I am sincerely remorseful for the way I acted and I understand that I placed not only the victims of my offending at significant risk but also members of the community at large.
2. Having spent time in prison as a result of my actions, I clearly understand the potential ramifications of my further conduct of this sort. I have sincerely learned my lesson and should this Honourable Court consider this application favourably I will only drive in a responsible fashion from now on.
3. I recognise that holding a driver licence is a privilege and not a right."

[8] Otherwise, it is pointed out that it is now some four years and eight months since the disqualification was ordered, during which the applicant was incarcerated for about two years and nine months and has been in the community subject to parole, without blemish, for almost two years.

[9] As is the subject of observation in a number of cases where similar applications have been dealt with, s 131(14) of the TORUM provides for the discretion to be exercised by the Court in respect of such an application and the factors to be considered. However, this is not a discretion which is akin to that involved in the original sentencing of the applicant. That is, it is not an exercise of balancing competing considerations in order to decide upon an appropriate outcome from a range of potential outcomes. Neither is this an exercise in resentencing the applicant.

[10] As I sought to note in Devine v Commissioner of Police[1]:

"[4] The discretion which is allowed to the court upon any such application and by s 131(14) of the TORUM, is as to "either by order remove the disqualification as from such date as may be specified in the order or refuse the application". As is further stated in the subsection, that discretion is to be exercised:

'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 circumstance of the case'.

[5] As has been variously noted in other instances when this court has been called upon to consider such applications, the identified factors require consideration of the offending for which the disqualification was imposed, the applicant's demonstrated character generally and particularly conduct subsequent to the order.

[6] It is for the applicant to satisfy this Court that it is now appropriate to dispense with the disqualification considered appropriate at the time of and as part of the applicant's sentence, or punishment. 1 And that an important aspect of any such application may be as to the demonstration of the extent to which the purpose of an applicant's sentence in achieving the rehabilitation of an offender has been achieved and may be fostered by allowance of the application.

[7] However and as is also noted in Porter v Commissioner of Police, underlying considerations include what may be recognised as a significant community interest in the safety of all road users. As there noted, that interest may be met by the imposition of lengthy or permanent driver licence disqualification, at least, until and unless the court may be satisfied that an applicant is prepared to conduct himself or herself in accordance with community expectations." (citations omitted)

[11] Accordingly, the application is not simply determined, as was the written submission of the respondent, upon consideration as to "whether the applicant has provided legitimate and sufficient reasons to satisfy the court, on the balance of probabilities, that it is proper to dispense with the trial judge's finding that the absolute disqualification was appropriate".[2] Whilst that formulation may be seen as an adoption of words used in Slivo v Commissioner of Police,[3] they are there immediately followed by the observation that the onus is upon an applicant to "satisfy the court that it is proper to remove the disqualification" and subsequently in that decision it is also observed that:

[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.""

[12] As was noted in Devine, the question is rather whether it is now determined that it is no longer appropriate to maintain that disqualification. Or put in more positive terms, whether it is appropriate or proper to dispense with it, by again allow the applicant the benefit of ability to obtain a driver licence. Necessarily, that question arises in the context of the prior determination of appropriateness of the order of disqualification, as part of the sentence imposed for the antecedent offending. But and as noted for the applicant, it is to be recognised, as was observed in Re Moore,[4] that the imposition of a period of disqualification has both punitive and protective aspects and that consideration of an applicant's contemporary circumstances may mean that the "protective aspects of the order of disqualification are not subverted by allowing him the opportunity to obtain a drivers' licence at that point",[5] including where the ability to obtain a drivers licence "will contribute to [the applicant's] continued re-integration into the community".[6]

[13] The considerations mandated in s 131(14) will necessarily present competing issues and therefore the need to strike a balance in the determination as to whether it is proper to allow an applicant to again have that ability. In Devine, I sought to note what appeared to be the essence of the balance sought to be achieved, by reference to some particular notations made in earlier decisions, as follows:

"[20] As is noted in Slivo v Commissioner of Police, in reference to earlier observations made in Morgan v Commissioner of Police, the difficult task of the Court is 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'.

[21] Whilst, as has been noted, that task involves some assessment as to the extent to which the punishment and therefore deterrent effect involved in the disqualification, has been endured, a further purpose of such an order may be the protection of the community from the prospect of further driving offending, such as may jeopardise the safety of members of the community. The latter considerations are necessarily related to the issue of the offender's rehabilitation." (citations omitted)[7]

[14] In this instance, the respondent opposes the application and correctly contends that something more than pointing to the ongoing inconvenience of the disqualification is required. As has been noted, inconvenience is an expected incident of such an order, including in the deterrent effect sought to be achieved.[8] Particular emphasis is placed upon the seriousness of the applicant's offending, as reflected in the sentence imposed, including the disqualification. Further and whilst there is the appropriate concession that the material does establish "as a general proposition, that a driver licence will be beneficial to the applicant's efforts to obtain further advancement and opportunities [in his employment]", it is pointed out that there is no identification of any specific requirement or employment opportunity which is denied to the applicant through his inability to drive. Further, there is observation as to the absence of material as to engagement in any interventions as to offending behaviours and some noted past psychological conditions, in the context of a submission that "on the face of his material, there is limited insight into his offending behaviour or "remorse".

[15] The problem confronting the last submission is in the unchallenged evidence of the applicant, as has been set out above.[9] However, those assertions are also untested but understandably pressed for the applicant to be viewed in the context of the situational explanation for the offending, his completion of more than the minimum expected custodial component of his sentence (about two years and nine months) and the absence of any identified problematic behaviour and otherwise a positive indication of re-engagement in the community over a period approaching two years since that release and during which the disqualification has had any meaningful effect. Accordingly, it is to be noted that there is approximately two years and three months of supervision on parole remaining.

[16] For each of the parties, attention is drawn to the power of the court to now fix a point, in the future, when the disqualification is to be removed. As was the case in Devine, that power may be useful in some instances, but an obvious difficulty in now making an order that is significantly delayed in having effect, is that it can only reflect an understanding of the current circumstances and an expectation, which may well be falsified, of no significant change occurring before it becomes effective. Accordingly, much may depend upon the strength of the material supporting such an expectation and it can be observed that it may be a useful device where the considerations are finally balanced and where a short postponement will serve to adequately reinforce particularly the punitive purpose for which the disqualification was originally ordered.

[17] This is a case of the latter kind, and it should be concluded to be appropriate to serve the community interest of promoting and facilitating the rehabilitation of the applicant, to order that the absolute disqualification of his ability to hold or obtain a driver licence is removed as from 18 March 2023.

[1] [2020] QDC 329 at [4]- [7].

[2] See outline of submissions for the respondent filed 21/2/23 at [43].

[4] [2007] QDC 75.

[7] The citation for Morgan v Commissioner of Police is [2007] QDC 10 at [31].

[8] Johnson v Director of Public Prosecutions [2009] QDC 300 at p16-17