The Motor Vehicle Law Qld Noticeboard is your definitive resource for both civil and criminal aspects of motor vehicle law news as it occurs. Frequently updated by respected barristers Simon Cilento and Andrew West, the Noticeboard keeps you informed of the  latest key legislative and case developments relating to Queensland motor vehicle law. For more comprehensive information and analysis into these and other matters, Thomson Reuters' subscription service, Motor Vehicle Law Qld, the complete guide dedicated to motor vehicle law in Queensland, is available online, in looseleaf or on ProView eSub.

April 2017

Cases

• Where removal of absolute disqualification is a proper exercise of judicial discretion – Davis v Commissioner of Police [2016] QDC 301

CASES

Updated 18 April 2017

Where removal of absolute disqualification is a proper exercise of judicial discretion

Davis v Commissioner of Police [2016] QDC 301 – 18 November 2016 District Court at Maroochydore Long SC DCJ

Facts: In 2002, the applicant came before the District Court charged with offences of unlawful use of motor vehicles and aggravated dangerous operation of a vehicle. He was 19 years old. Since turning 17, he had “amassed a substantial criminal history” which had involved periods of actual imprisonment. Importantly, there had been a previous similar incident which had resulted in the imposition of probation which had been breached. He was also the subject of a suspended sentence imposed in relation to unlawful use of a motor vehicle and stealing.
The offending before the court involved the theft of a motor vehicle and a police pursuit through main streets on the Sunshine Coast and onto the Bruce Highway. The total distance was about 50 km and the speeds up to 160 km/h. Along the way, the car was driven at speed through a carpark and through numerous red lights. In the end, the car collided with a tree and was written off at a loss of $5,500.00.
Davis was sentenced to an effective head sentence of 2 years imprisonment and disqualified absolutely from holding or obtaining a driver’s licence. He served almost the whole of that sentence. In 2005, he offended again and was convicted of unlawful use of a motor vehicle, stealing, possession of dangerous drugs and disqualified driving for which he receive 12 months imprisonment and 2 years probation.
Davis’ traffic history also revealed numerous traffic offences from 2000 to 2005, including six offences of disqualified driving, three of which resulted in absolute disqualification orders in the Magistrates Court.
In 2016, Davis applied to the District Court under s 131 of the Transport Operations (Road Use Management) Act 1995 for an order removing the disqualification. A separate and subsequent application had to be made in relation to the Magistrates Court orders. Under s 131(2c), he had to satisfy the Court that it was proper to remove the disqualification having regard to:

• his character;
• his conduct subsequent to the order;
• the nature of the offence; and
• any other circumstances.

His case was that:

• he was 34 years old;
• he had an unsettled upbringing in foster homes and, before 2006, he had struggled with drug addiction and offending behaviour;
• from an earlier relationship, he had a 15 year old child who suffered from cerebral palsy, for whom he paid child support, but whom he could only visit occasionally due to transport restrictions;
• he had settled into a de facto marriage of 12 years duration with children aged 8 and 5;
• he was employed on a permanent casual basis and had the support of an employer who would benefit from him being able to drive a truck.

Significantly, his traffic history contained no entries after 2005. There were entries in his criminal history for 2016. However, these generally related back to 2006 and were explained by the fact that he had relocated to Melbourne in that year. The sting was largely taken out of them by the fact that he had made inquiries of the Queensland Warrant Bureau about his situation in 2015 and surrendered himself in 2016.

Held: In considering the matter, Long SC DCJ said:

[12] In considering whether it is thought proper to remove the disqualification, it can, first, be noted that the original order was made as part of a sentence imposed on the applicant … that can be seen to have been particularly reflective of the purposes of punishing the applicant and making clear the denunciation of his conduct but also, to provide for the necessary elements of deterrence and protection of the community from the applicant’s offending. Except that he remains subject to this disqualification, at this stage it can be noted that the conjunctive elements of the applicant’s punishment have been substantially completed and that the feature which most relevantly remains, is the purpose of the protection of the community from any continuing risk that the applicant presents to it.
[13] It is also important to note that the remaining purpose for which sentences may be imposed … is to provide conditions that are considered will help an offender to be rehabilitated.
[14] Essentially, this application is made with a view to facilitating the applicant’s continued rehabilitation and integration into the community and it is, obviously, in the general interest of the community that such rehabilitation and integration be appropriately facilitated. Consideration must also be given to the community interest in the safety of all road users and therefore, there is a need for satisfaction that the applicant is prepared to conduct himself with due regard to such community expectations and also, that the purposes of punishment, denunciation and deterrence inherent in the original sentence are, nevertheless, met and not compromised by acceptance of the application.
[…]
[16] In the circumstances where the material indicates … a lengthy period of absence of any offending by the applicant … and the positive indication of rehabilitation and prospects of ongoing stability in his circumstances, it is appropriate to [grant the application].

Comment: It was a proper exercise of judicial discretion to remove the absolute disqualification in these circumstances considering the lengthy period of absence of any offending and the positive indication of rehabilitation and prospects of ongoing stability. The case provides a good example of the type of evidence required in such applications.

Legislation

• Offensive advertising on vehicles – Transport Operations (Road Use Management) (Offensive Advertising) Amendment Act 2017

 LEGISLATION

Updated 19 April 2017

Offensive advertising on vehicles – Transport Operations (Road Use Management) (Offensive Advertising) Amendment Act 2017

The Transport Operations (Road Use Management) (Offensive Advertising) Amendment Act 2017 was assented to on 27 February 20217 and commenced on 31st March 2017. It introduces a new Ch 3, Pt 1B into the Transport Operations (Road Use Management) Act 1995 entitled “Cancelling vehicle registration for offensive advertisements”. The Part applies where the Advertising Standards Bureau determines that an advertisement on a vehicle breaches the Code of Ethics published by the Australian Association of National Advertisers and gives notice of the fact to the chief executive. The notice can only be given after the Bureau’s review process has been finalised. On receipt of a notice, the chief executive may then give notice to the registered operator of the vehicle that its registration will be cancelled unless the advertising code breach notice is withdrawn. There is no right to a refund of any part of the registration fee. The application of the Judicial Review Act 1991 to the decisions of the chief executive under these provisions is restricted.
According to the government press release, the amendments are aimed at commercial operators whose vehicles carry advertising which is variously described as being “sexist, obscene or otherwise offensive advertising” and “sexist, misogynistic and inappropriate slogans” in an effort to minimise the amount of offensive advertising on Queensland registered vehicles.

Some content sourced from FirstPoint powered by Australian Digest.

We hope you enjoy the new Motor Vehicle Law Qld Noticeboard. We are always striving to improve our products to meet your needs. If you have any feedback on how we may provide further enhancements, please post a comment below or contact us on motorvehicleqld.direct@thomsonreuters.com.