BEKHIT and DEPARTMENT OF TRANSPORT

[2016] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: ROAD TRAFFIC (ADMINISTRATION) REGULATIONS 2014

CITATION:   BEKHIT and DEPARTMENT OF TRANSPORT [2016] WASAT 108

MEMBER:   MS K WHITNEY (MEMBER)

HEARD:   29 AUGUST 2016

DELIVERED          :   1 SEPTEMBER 2016

PUBLISHED           :  12 SEPTEMBER 2016

FILE NO/S:   CC 766 of 2016

BETWEEN:   MOHAMOUD AHMED BEKHIT

Applicant

AND

DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Variation to cancel T extension to motor vehicle driver's licence ­ Good character of applicant ­ Conviction for indecent assault on taxi passenger

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 323
Road Traffic (Administration) Regulations 2014 (WA), reg 32(1)
Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 12, reg 12(8)(c), reg 25, reg 25(a), reg 28, reg 28(2), reg 28(4), reg 41, reg 41(1)(b), reg 70(d)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(1), s 29(3)

Result:

The application was dismissed

Summary of Tribunal's decision:

The applicant held a T extension to his motor vehicle driver's licence entitling him to carry passengers for reward in a taxi.  On 4 December 2015, the applicant pleaded guilty to a charge of indecent assault.  The offence had been committed against a taxi passenger in the course of the applicant's employment as a taxi driver.  The CEO of the Department of Transport cancelled the applicant's T extension on the basis that he was not a person of sufficient good character to hold a T extension.  The applicant sought a review of that decision.

The Tribunal was not satisfied on all the evidence (including the evidence of five character witnesses that the applicant was a respected member of his community) that the applicant is of the requisite good character to hold a T extension and affirmed the CEO's decision.

Category:    B

Representation:

Counsel:

Applicant:     Ms L Black

Respondent:     Mr C Warner (Acting as Agent)

Solicitors:

Applicant:     Hammond Legal

Respondent:     Department of Transport

Case(s) referred to in decision(s):

Chowdhury and Department of Transport [2012] WASAT 128

Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. The matter was heard by the Tribunal on 29 August 2016, and oral reasons were delivered on 1 September 2016.  The following reasons for decision are the oral reasons delivered by the Tribunal on 1 September 2016, subject to minor editing for clarity, style and inclusion of full citations.

2. On 1 June 2016, Mr Mohamoud Ahmed Bekhit (applicant) lodged an application in the Tribunal seeking review of a decision of the delegate of the Chief Executive Officer of the Department of Transport (respondent) dated 12 May 2016 to cancel the applicant's extension 'T' endorsement (T extension) to his driver's licence. The T extension authorised the applicant to carry passengers for reward in a taxi as provided for in reg 12 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (regulations).

3. The respondent's decision to cancel the applicant's T extension, made pursuant to reg 28 of the regulations, is a reviewable decision within the meaning of reg 70(d) of the regulations. The applicant seeks a review pursuant to reg 32(1) of the Road Traffic (Administration) Regulations 2014 (WA) and the matter falls within the Tribunal's review jurisdiction: per s 17 State Administrative Tribunal Act 2004 (WA) (SAT Act).

The issue

1. The issue to be decided by the Tribunal is whether the respondent's decision to cancel the T extension is the correct and preferable decision (s 27(2) of the SAT Act) and whether it should be affirmed, varied, or set aside.  If set aside, the Tribunal must either substitute its own decision or send the matter back to the respondent for reconsideration in accordance with the Tribunal's directions or recommendations (s 29(3) of the SAT Act). 

2. The review is by way of a hearing de novo and the Tribunal is not limited in its considerations to the material that was before the original decision­maker (s 27(1) of the SAT Act) nor to a consideration of the original decision­maker's reasoning alone (s 27(3) of the SAT Act).  All of the functions and discretions conferred on the original decision­maker are conferred on the Tribunal in addition to the powers conferred upon the Tribunal by the SAT Act (s 29(1) of the SAT Act).

Facts

1. The relevant facts are not in dispute.  The applicant is a 51­year­old married man with three young children.  He was born in Eritrea and lived for 20 years in a refugee camp in Sudan prior to migrating to Australia in 1996.  On 1 February 2007, his driver's licence was varied by endorsement with a T extension and the applicant worked as a taxi driver for some eight years without being the subject of a complaint.

2. On 1 May 2015, the applicant was charged with the offence of indecent assault under s 323 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code). The circumstances of the offence are set out at paragraph 4 of the respondent's Statement of Facts, Issues and Contentions as follows:

   a.At approximately 3.56am on the 27 March 2015, the [applicant] was operating his taxi in the Northbridge area.

   b.A young female and two other people hailed the [a]pplicant's taxi.  The two other passengers were dropped off after a short journey in Northbridge, and the victim stayed in the taxi to travel to an address in Stirling.  The victim was seated in the front passenger seat of the taxi.

   c.During the journey, the [a]pplicant asked the victim words to the effect of 'do you have a boyfriend?' The [a]pplicant later placed his hand on the victim's neck, stroked her neck and told the victim that she was 'beautiful.'

   d.The victim became uncomfortable and shifted away from the [a]pplicant towards the door of the vehicle and moved her bag onto her lap.  The [a]pplicant removed his hand from the victim's neck.

   e.Upon arriving at the address in Stirling the victim got out of the vehicle and told the [a]pplicant he had scared her.  The victim asked how much the fare was and the [a]pplicant replied there was no charge before speeding off.

3. The incident was recorded by the taxi camera surveillance unit and a copy of the recording was provided to, and viewed by, the Tribunal. 

4. The applicant accepts the respondent's summary of these facts, but requests that the Tribunal consider them in the context of the events (as recounted in the plea in mitigation in the sentencing transcript), including that:

   [The victim] was an Irish backpacker and extremely friendly and was telling the [applicant] her life story, if I can put it in that broader sort of way.  She had told him the story about some friends of hers that had worked with her.  She told him that one of her friends was an Australian female who had dated a Nigerian man.  … [S]he was telling him this in the context of him being African as well.

   She said the couple had got married and had a child together and she was telling him all sorts of stories.  And at one point said, 'You can't say what happens when it's true love.'  He accepts in that context he then said, 'So do you have a boyfriend?'  She said 'No. No. I'm on my own.'  …

   What he did do then was he said he stroked the back of her neck and told her it was a nice story and he did use the word beautiful.  His recollection was the word beautiful came in the context of the story, but well accepts that he did say the word beautiful and it may well have been, given he touched her neck at that time, she has taken it in the way she has.  …

5. On 4 December 2015, the applicant pleaded guilty to the charge of indecent assault and was sentenced to a fine of $2,000 reduced by 10% to $1,800 by reason of his guilty plea.  In his sentencing remarks the Magistrate noted as follows:

   You [have] pleaded guilty to indecent assault.  I have heard the facts.  I have heard [the] matters raised by your lawyer in mitigation.  You pleaded guilty to a very serious offence.  It's serious in the respect that people that catch taxis are very vulnerable, especially women.  They're putting their trust in a stranger and they're extremely vulnerable and for that reason it is hoped that the taxi system we have in Australia has checks on the character of taxi drivers.

   For a woman to be in a … moving vehicle with a taxi driver, someone she would trust to deliver her safely to her destination, it doesn't matter how friendly she is, as a professional taxi driver you should know that it's totally inappropriate to lay your fingers or hands on any passenger, particularly a woman.  And her reaction is clearly captured in this photograph, she is not happy at all.  …

   It's extremely serious.  Although the indecency is at the lower end of the scale ­ it was a touch on the neck, it wasn't a touch on any other part of the body ­ and although it was brief in duration and although you did end up taking the passenger to her destination and she got out of the vehicle without any incident the seriousness is that she is a female who has put her trust in you as a taxi driver, she is in a vulnerable position in a moving vehicle and you've touched her inappropriately.  It just should never have happened.

6. The Magistrate refused to grant the applicant's application for a spent conviction order, noting:

   The offence is certainly not trivial although I do accept [that] you are someone of previous good character.  It's hard for me to determine whether you're unlikely to commit such an offence again but even if I were to find that you're unlikely to commit such an offence again, in exercising the court's discretion in my view you shouldn't be relieved immediately of the adverse effect of the conviction because it's a matter that was committed in the course of your employment, it involves public safety considerations and, in my view, given the nature of the offence and the fact that it was committed in the course of your employment, in my view it is a conviction that should be recorded and that you should be answerable to and it will be then up to the taxi board to take that conviction into account in deciding whether or not to allow you to continue working as a taxi driver.

Relevant law

1. Regulation 12(8)(c) of the regulations provides that the respondent may make an extension T endorsement if satisfied (among other criteria) that a person is of good character. The respondent may, for 'any other reason appropriate to do so', vary a driver's licence: reg 28(2) of the regulations. Before varying a driver's licence in a way that would suspend or cancel any authorisation, the respondent must have regard to the principles in reg 41: reg 28(4) of the regulations.

2. Regulation 41(1)(b) of the regulations provides relevantly that the CEO may, by notice in writing given to the licence holder suspend or cancel a person's driver's licence if the CEO has reason to believe that there are grounds on which the CEO could, if then considering whether to grant the driver's licence, refuse under reg 25 to grant it.  Regulation 25(a) provides that the CEO may refuse to grant a driver's licence to a person if the CEO has reason to believe that the person is not of good character.

3. The parties informed the Tribunal at the hearing that they agreed that the relevant principles include those outlined in Chowdhury and Department of Transport [2012] WASAT 128 (Chowdhury).  Paragraphs 25 ­ 30 of Chowdhury provide as follows:

   [25]In Mohamed v Director General, Department of Transport [2010] WASC 375, which dealt with a review by the Tribunal of a decision by the Director General to cancel a T extension, Allanson J at [27] and [28] stated:

   Regulation 25 refers to 'good character' and not whether the applicant is 'fit and proper' to hold a [driver's] licence.

   …

   While 'good character' is frequently referred to as an aspect of whether a person is 'fit and proper' … it is not the same thing.  An expression such as 'good character' must always be construed in the context of the particular legislation in which it occurs … It refers, in essence, to notions of moral quality …

   [26]Allanson J goes on at [30] to refer to moral qualities which lie at the heart of the concept of good character.

   [27]In Upton and Director General of Transport [2012] WASAT 63, the Tribunal reviewed a decision by the Director General to refuse an application for a T extension to a driver's licence on the ground that the applicant in that case was not of good character. At [8] of that decision, the issue of moral quality and its application to good character was stated by the Tribunal in the following terms:

   In considering the issue of good character in the vocational context, an applicant must show not only that they are possessed of a requisite degree of knowledge of the duties and responsibilities expected of them as the holder of the particular licence, but also that they possess sufficient moral integrity and rectitude of character such that the public would accept them as suitably trustworthy to perform the duties which the relevant licence requires.

   [28]In considering the issue of moral qualities and good character in respect of the suitability of a person to have a T extension endorsement on their driver's licence, and therefore to be able to work as a taxi driver, it is essential that the Director General, and in the case of a review, the Tribunal, not have any reason to believe that the applicant might act inappropriately when confronted with a situation where a passenger is vulnerable, whether as a result of intoxication or for any other reason.

   [29]The Tribunal accepts the contention of the Director General that a taxi driver must be expected to provide a safe environment in the taxi for his or her passenger and ensure that the passenger is transported safely to their destination, without any possibility of the taxi driver being involved in any inappropriate activity during the course of the journey, even if that may be initiated by the passenger.

   [30]The moral qualities which lie at the heart of the concept of good character for the purposes of a T extension need to be of such a standard that there can never be any doubt that the holder of the licence will, at all times, conduct themselves appropriately whilst carrying a passenger.

4. Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) is instructive on the relevance of convictions when making assessments of character and fitness of a person.  Convictions may generally be regarded as more serious if they occur in the course of carrying out the relevant occupation.  Furthermore, indications of good character notwithstanding previous convictions may be gleaned from genuine remorse and contrition, true insight and understanding, the passage of time, or a person's character generally since his commission of the offences (including lack of offending, age, family support, paid and voluntary work and character references which are made in full knowledge of the fact of the commission of the offence).

5. The parties agree that the Tribunal's task in this matter is to determine whether the applicant is a person of good character such that he may continue to hold a T extension.

Applicant's contentions

1. The applicant contends that despite his conviction, he remains a person of good character.  He maintains that the offence was isolated, a relatively mild example of its type, and was committed by a man who had otherwise demonstrated impeccable character.  He maintains that he is a man of good character who made a mistake which resulted in a bad action which was entirely out of character, and which is not indicative of his true character.  He accepts and understands that his actions were highly inappropriate and had an adverse impact on his victim, for which he is remorseful and apologetic.  He accepts that his behavior was wrong and has pledged to always behave appropriately, especially in the context of his employment.

2. In support of his contentions, the applicant presented evidence from five character witnesses who know the applicant through interactions within the Eritrean and Sudanese communities (the character witnesses).  All of the character witnesses agreed that the applicant engages in significant voluntary community service within the Eritrean and larger African communities, and they consider him a trustworthy person.  The character witnesses all indicated that they were shocked to learn of the offending behaviour, and considered such behaviour to be wholly inconsistent with their own experiences in interacting with the applicant within the Eritrean and larger African communities.  The character witnesses all indicated that they had only ever seen the applicant be respectful and appropriate with women he interacted within the Eritrean and larger African communities. 

3. The applicant presented uncontested evidence that he had never before been the subject of a complaint by a taxi passenger.

Respondent's contentions

1. The respondent contends that the applicant's offending was extremely serious, particularly in that it was committed in the course of driving his taxi.  Furthermore, the respondent maintains that the offending was relatively recent, and there has not been sufficient passage of time to diminish the respondent's concern about the applicant's character.  The respondent submits that the public expects that a taxi driver convicted of committing an indecent assault in the course of driving a taxi would not be permitted to return to carrying passengers.

2. In response to the applicant's character evidence, the respondent elicited in cross­examination that none of the character witnesses could recall seeing the applicant interact with so-called 'western women' (women from outside the Eritrean and Sudanese communities).  Furthermore, several of the character witnesses noted in cross­examination that the cultural mores of the Eritrean community are somewhat different to those of the wider Perth community, with some cultural limitations on contact between men and women, and less 'intermingling' than might be common in western cultures.

3. The respondent cross­examined the applicant extensively as to why he engaged in the offending behaviour but he was unable to provide any explanation for his behaviour.  He did not know why he had done it. 

Findings and consideration

1. The Tribunal accepts the evidence of the character witnesses that applicant is a respected member of the Eritrean community and has an admirable history of voluntary community service.  Whilst Tavelli provides that such evidence may be indicative of good character, it does not, by itself, establish good character.  It is merely one factor which must be weighed by the Tribunal in determining whether, on the balance, the applicant is of the requisite good character to hold a T extension.

2. The Tribunal also accepts the evidence of the character witnesses that the applicant's behaviour in the Eritrean and Sudanese communities is exemplary, and that the offending behaviour shocked the witnesses because it was so inconsistent with their own experiences in dealing with the applicant.  The Tribunal is satisfied on this evidence that the applicant's offending behaviour was quite different from how he behaves towards women in his own community. 

3. However, the offending behaviour did not occur in the context of his dealings with women in his own community.  It occurred in the context of him driving a taxi, where he is alone in a confined space with passengers drawn from the general public.  Such passengers regularly include young women who are intoxicated and who may well behave in a manner which is different to the women in the applicant's community.  The evidence as to how the applicant conducts himself in his own community does not necessarily indicate how he tends to behave in the context of his employment.

1. As to how the applicant behaves towards women from outside his community when he is alone with them in his taxi, the Tribunal has evidence in the form of the video of the offending behavior and the applicant's admissions as to his conduct.  On the other hand, the Tribunal has evidence from the applicant and his employer (which was not challenged by the respondent) that the applicant has never been the subject of any other complaint in respect of his conduct as a taxi driver and the offending behaviour was a single isolated incident.  Even if the Tribunal accepts (as it does) that the offending behaviour was to date a single isolated incident which is not necessarily indicative of how the applicant normally behaves with passengers, the Tribunal is satisfied that the fact that the applicant engaged in the offending behaviour is sufficient evidence to support a finding of a risk of aberrant unacceptable behaviour posed by the applicant when driving his taxi.  This risk is not counterbalanced by the evidence of his good character within his community.

2. Nor does the Tribunal consider that the 'circumstances' (that the indecency involved in the offending behaviour was at the lower end of the scale) or the 'context' ('personal stories') of the offending behaviour referred to in the applicant's contentions weigh heavily in the applicant's favour.  The applicant pleaded guilty to an indecent assault, which the sentencing Magistrate characterised as an extremely serious offence.  The seriousness of the offending behaviour arose from its context:  the applicant held a position of trust as a taxi driver which he violated by his conduct.  The seriousness arises from that breach of trust itself.  For the same reasons, the Tribunal does not accept that the applicant's otherwise 'impeccable character' weighs heavily in the applicant's favour. 

3. The applicant contends that because the offending behaviour was an isolated incident, the Tribunal should find that he is a man of good character who made a mistake which resulted in a bad action not indicative of his true character.  The Tribunal is not prepared to do so.  The Tribunal is not satisfied on the whole of the evidence that the applicant's conduct is consistent with the test for 'good character' set out in Chowdhury. 

4. In Chowdhury (which the parties agree provides the relevant legal principles) the Tribunal considered that good character in the context of a T extension requires that the Tribunal 'not have any reason to believe that the applicant might act inappropriately when confronted with a situation where a passenger is vulnerable.'  The Tribunal must be satisfied that the holder of a T extension has good character comprising moral qualities of such a standard that 'there can never be any doubt that the holder of the licence will, at all times, conduct themselves appropriately whilst carrying a passenger'. 

5. The Tribunal is not sufficiently satisfied on the evidence that the applicant will conduct himself appropriately whilst carrying passengers in the future.  The Tribunal has found that the applicant poses a risk of aberrant unacceptable behaviour when driving his taxi.  The applicant conceded in cross­examination that he does not understand why he engaged in the offending behaviour.  In the absence of a clear understanding of why he engaged in the offending conduct, it is difficult for the Tribunal to have confidence in the applicant's reassurances that he can 'guarantee that nothing again will happen' because this has been a 'big learning experience'.  The Tribunal has concerns about whether the applicant currently has sufficient true insight into his behaviour to be able to carry through on such a guarantee.  This may change with the passage of substantial time and further reflection or counseling.  However, the Tribunal is not satisfied on the evidence presented that there is currently no reason to believe that the applicant might act inappropriately when confronted with a situation where a passenger is vulnerable.

6. Finally, the Tribunal has concerns on the evidence as to whether, at the time of offending, the applicant fully appreciated that his behaviour was inappropriate.  He says that at the time of the incident he 'did not think through … how serious my actions would be viewed by others', but that, having 'gone through this process', he is now 'very well aware of how wrong it was'.  He further says:

   The Magistrate when he sentenced me told me how serious my actions were and I now truly understand that I did wrong by my passenger.

7. These admissions are troubling.  The applicant is a taxi driver of some eight years' experience.  The Taxi Driver Code of Conduct is clear that it is inappropriate to touch a passenger in an inappropriate manner.  Although the applicant maintained in cross­examination that he was not attempting to initiate a sexual encounter, he pleaded guilty to indecently assaulting the passenger.  The applicant should have known at the time that his actions in touching the passenger in the manner he did would have clearly and seriously transcended the boundaries of appropriate conduct by a taxi driver towards a passenger. 

Conclusion

1. The Tribunal's task is to determine whether, considering the applicant's offending in its context and in light of the character evidence before the Tribunal, the applicant remains a person of good character such that he may continue to hold a T extension.  For the reasons expressed above, the Tribunal is not persuaded on the evidence before the Tribunal that the applicant is of the requisite good character to hold a T extension.

2. The correct and preferable decision is that the respondent's decision to cancel the applicant's T extension to his driver's licence be affirmed for the reasons set out above.

Orders

1.The respondent's decision dated 12 May 2016 to cancel the applicant's 'T' extension to his driver's licence is hereby affirmed.

2.The application is dismissed.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS K WHITNEY, MEMBER