CARE and DEPARTMENT OF TRANSPORT - [2019] WASAT 86

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: ROAD TRAFFIC (ADMINISTRATION) REGULATIONS 2014 (WA)
CITATION:   CARE and DEPARTMENT OF TRANSPORT [2019] WASAT 86
MEMBER:   MR S WILLEY, MEMBER
HEARD:   31 JULY 2019
DELIVERED          :   15 OCTOBER 2019
FILE NO/S:   CC 2603 of 2018
BETWEEN:   KOSHIN MUSE CARE
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Administrative law - Road traffic - Application for review of a decision to refuse a T extension - Requirement for good character - Relevance and significance of criminal convictions - Traffic convictions - Offences of violence - Offences relating to threatening conduct - No evidence presented to satisfy Tribunal that applicant has necessary attributes for a T extension - No genuine remorse or contrition shown

Legislation:

Road Traffic (Administration) Act 2008 (WA), s 4, s 143
Bail Act 1982 (WA), s 51(2a)
Criminal Code (WA), s 68(1), s 70A(2), s 74A(2)(a), s 301(1), s 338B(b), s 444(1)(b), s 445
Criminal Investigation (Identifying People) Act 2002 (WA), s 16(8)
Criminal Investigation Act 2006 (WA), s 153(1)
Road Traffic (Administration) Regulations 2014 (WA), s 32(1)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 12(7)(c)
Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 7, reg 11(1), reg 12, reg 41, reg 70, reg 72, reg 72(1)
Road Traffic Act 1974 (WA), s 15(3), s 64A(1), s 64AC(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2)

Result:

Respondent's decision to refuse applicant's T extension application is affirmed.

Summary of Tribunal's decision:

Mr Koshin Care (the applicant) applied for a T extension to his driver's licence. A T extension entitles the holder to carry passengers for reward in a taxi. The Chief Executive Officer of the Department of Transport (respondent) refused the applicant's application for a T extension on 25 September 2018 and, on reconsideration, reiterated its decision to refuse the application on 31 October 2018. The applicant applied for a review of the respondent's decision on 9 November 2018.
In order to be granted a T extension the respondent, and now the Tribunal, must be satisfied that, inter alia, the applicant 'is of good character' for the purposes of reg 12(7)(c) of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA).
The applicant has a number of criminal and traffic convictions, including some which were committed early in 2019, which demonstrate a tendency towards violence and threats. The applicant was previously a taxi driver but his T extension was revoked in November 2012 following the applicant being convicted of a number of criminal offences including threats, unlawful wounding and damage to property. The applicant also tested positive to methamphetamine when driving a vehicle in 2016.
The applicant presented no evidence in support of his application for review. In particular, no character evidence was provided. He also did not challenge or object to any of the background facts that were put forward by the respondent.
The Tribunal found that the applicant was not presently a person of good character. The applicant has repeatedly resorted to violence and threatening behaviour and the Tribunal had no basis on which to find that such conduct could be reasonably said to be in the applicant's past, such that it would not re-occur. The Tribunal also had no evidence to suggest that methamphetamine use, detected in 2016, was also in the applicant's past. The Tribunal found that the correct and preferable decision was to affirm the decision to refuse to grant the T extension to the applicant.

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr AS Maynard

Solicitors:

Applicant	:	N/A
Respondent	:	Department of Transport

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

Bekhit and Department of Transport [2016] WASAT 108
Bekhit v Department of Transport [2017] WASC 50
Chowdhury and Department of Transport [2012] WASAT 128
Costello and Department of Planning and Instructure [2009] WASAT 188
Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; (1966) 67 SR (WA) 448
Ford and Department for Planning and Infrastructure [2009] WASAT 236
Khalil and Department of Transport [2014] WASAT 158
LS v Mental Health Review Board [2013] WASCA 128
Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552
Mohamed v Director General Department of Transport [2010] WASC 375
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
Topic and Department of Transport [2014] WASAT 129
Topic and Department of Transport [2015] WASAT 16
Upton and Director General of Transport [2012] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Koshin Muse Care (the applicant) seeks review of a decision of the Chief Executive Officer of the Department of Transport (CEO or respondent) to refuse his application for a 'T extension' to his driver's licence. A 'T extension' entitles the holder to carry passengers for reward in a taxi.
In order to be granted a T extension, the respondent, and now the Tribunal, must be satisfied that an applicant satisfies a number of criteria which are set out in reg 12(7) of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (RTATD Regs).
One of those criteria is that the person must be of 'good character': reg 12(7)(c) of the RTATD Regs. This proceeding focused on whether the applicant is a person of 'good character' such that he should be granted a T extension.
For the reasons that follow, the Tribunal is not satisfied that the applicant is a person of good character for the purposes of carrying passengers for reward for the purposes of the RTATD Regs.
The correct and preferable decision is to affirm the respondent's decision to refuse the application for a T extension.

Background to the review

The background facts are drawn largely from the respondent's statement of issues facts and contentions (SIFC). The applicant did not file a document that could be regarded as a SIFC in these proceedings and did not object to, or challenge, any of the alleged facts in the respondent's SIFC.
The applicant is 39 years old and was first issued with a Western Australian driver's licence on 11 December 2003.
On 24 December 2003 the applicant's driver's licence was varied by endorsement with a T extension enabling him to carry passengers for reward in a taxi.
Regulation 41 of the RTATD Regs empowers the respondent to suspend or cancel an extension T or F endorsement on the grounds that it has reason to suspect or reason to believe that the person is not of good character. An F extension allows a holder to drive a bus or private charter vehicle.
On 2 November 2012 the respondent's delegate cancelled the T extension held by the applicant on the basis that the delegate was not satisfied that the applicant was of good character for the purposes of the (then) Road Traffic (Authorisation to Drive) Regulations 2008 (WA).
On 24 December 2013 the applicant applied for a F extension which was refused by a delegate of the respondent on 31 December 2013.
On 4 February 2014, in response to a letter from the applicant requesting a review of the decisions to cancel the T extension endorsement and not to grant an extension F endorsement, the respondent's delegate decided to uphold the original decisions to both cancel the T extension and to refuse to grant an extension F endorsement. The respondent's delegate reached his decision because he was not satisfied the applicant was of good character to hold a T or F extension as required by regulation 12(7)(c) of the (then) Road Traffic (Authorisation to Drive) Regulations 2008 (WA).
On 3 September 2018 the applicant applied to the respondent for his driver's licence to be endorsed with a T extension. As stated, such an extension authorises the holder to carry passengers for reward in a taxi.
On 21 September 2018 the respondent's delegate refused to grant the application for a T extension on the basis that the delegate was not satisfied the applicant was of good character to hold a T extension as required by regulation 12(7)(c) of the RTATD Regs. The applicant was informed of the delegate's decision in writing on 25 September 2018.
On 9 October 2018 the applicant requested the respondent reconsider its decision pursuant to reg 72 of the RTATD Regs. On 29 October 2018, the internal review delegate upheld the decision to refuse to issue a T extension on the basis that she was not satisfied the applicant was of good character under reg 12(7)(c) of the RTATD Regs. The applicant was informed of the delegate's decision in writing on 31 October 2018. It is this decision which is the subject of this review proceeding.
The basis of the internal review delegate's decision that the applicant was not of good character on account of the applicant's multiple and recent convictions for driving with a prescribed illicit drug under s 64A(1) of the Road Traffic Act 1974 (WA), for being armed or pretending to be armed in a way that may cause fear, for causing criminal damage or destruction of property, threats to injure, endanger or harm any person and for unlawful wounding with a circumstance of aggravation. The applicant's relevant convictions will be explained further in these reasons.
On 9 November 2018 the applicant applied to the Tribunal for a review of the decision not to grant his extension to endorsement on the driver's licence pursuant to reg 32(1) of the Road Traffic (Administration) Regulations 2014 (WA) (RTA Regs).

Materials before the Tribunal

The Tribunal has before it the following materials:
(a)respondent's SIFC (18 January 2019);
(b)respondent's s 20 bundle of documents (18 January 2019);
(c)respondent's supplementary s 24 bundle documents (23 January 2019);
(d)respondent's further supplementary s 24 bundle of documents (26 April 2019);
(e)respondent's further supplementary s 24 of bundle documents (30 July 2019);
(f)respondent's further supplementary s 24 bundle of documents (31 July 2019);
(g)applicant's submissions (received 25 June 2019); and
(h)applicant's bundle of documents (received 25 June 2019).

The applicant's convictions

The respondent has provided a detailed history of the applicant's criminal convictions and traffic infringements on the basis that these inform the question of whether the applicant has the requisite good character in order to be granted a T extension.

Traffic convictions

The applicant has received 21 traffic infringements including the following within the last five years:
aDriver of motor vehicle is correctly wearing a seat belt with one passenger under 16 years unrestrained[.]
bExceed speed limit in a speed zone by 10 km/h but not more than 19 km/h[.]
cExceed speed limit in a speed zone by 10 km/h but not more than 19 km/h[.]

Criminal convictions

The applicant's criminal convictions are set out, and discussed, below.
2011 Offence

Offence

Date of offence

Penalty

Unlicensed vehicle (Owner/driver) (s 15(3) Road Traffic Act 1974)

23/9/11

Fine ($100)

Imposed on 3/11/11

2012 Offences

Offence	Date of offence	Penalty
Threats to injure, endanger or harm any person (s 338B(b) (Criminal Code (WA) (Criminal Code)	19/6/12	Community Based Order (12 months concurrent) Sentenced on 8/10/12
Unlawful wounding in circumstances of aggravation (s 301(1) (Criminal Code)	19/6/12	Community Based Order (12 months concurrent) Sentenced on 8/10/12
Wilful and unlawful destruction or damage to property s 444(1)(b) Criminal Code)	19/6/12	Community Based Order (12 months concurrent) Sentenced on 8/10/12

Material facts relating to the 2012 offences

The 2012 offences occurred in the context of a share house where the applicant was residing.
On 19 June 2012 the applicant kicked and hit a victim with a dinner plate while the victim was sleeping on the floor. The applicant continued to hit the victim until the victim managed to escape. A trail of blood was left through the house. The victim sustained a deep laceration to his head and several deep lacerations to their forearm.
Witnesses in adjoining rooms awoke to hear the victim screaming and rendered assistance pushing the applicant away from the victim. The witnesses fled to a bedroom and locked the door.
The applicant began banging and kicking the witnesses' bedroom door causing the door to flex from the force. The applicant picked up a chair and began hitting the bedroom doors of witnesses where they were seeking refuge in a bedroom. Two internal doors suffered damage and one external glass sliding door was hit causing a large crack. The damage was estimated to be in excess of $600.
The offence of threats to injure, endanger or harm any person arose when the applicant was observed holding a knife in the living room by witnesses and approached the bedroom he was attempting to gain entry to yelling 'I want to kill all of you' repeatedly. The applicant also yelled 'come out bitches I want to kill someone today' as he was banging and kicking the bedroom door in attempting to gain entry as the three witnesses barricaded themselves in a bedroom fearing for their safety.
2016 Offences

Offence

Date of offence

Penalty

Threats to injure, endanger or harm any person

s 338B(b) Criminal Code)

22/1/16

Imprisonment (9 months concurrent)

Sentenced on 11/7/16

Criminal damage

(s 444(1)(b) Criminal Code)

16/2/16

Imprisonment (1 month) concurrent)

Sentenced on 11/7/16

Being armed or pretending to be armed in a way that is likely to cause fear (s 68(1) Criminal Code)

29/2/16

Imprisonment (3 months concurrent)

Sentenced on 11/7/16

Criminal damage

(s 444(1)(b) Criminal Code)

29/2/16

Imprisonment (3 months concurrent)

Sentenced on 11/7/16

Threats to injure, endanger or harm any person

(s 338B(b) Criminal Code)

4/4/16

Imprisonment (3 months concurrent)

Sentenced on 11/7/16

Driving with a prescribed illicit drug under (s 64AC(1) Road Traffic Act 1974)

20/6/16

Fine ($300)

Imposed on 6/10/16

Offence on 22 January 2016

The conviction for threats to injure, endanger or harm any person on 22 January 2016 arose from a situation whereby the applicant visited his ex-partner. The applicant claimed that the victim owed him money and he threatened to kill her. Later that afternoon the victim met the applicant and paid the money as she was frightened that the applicant would carry through with his threats.

Offence on 16 February 2016

The conviction for criminal damage or destruction of property on 16 February 2016 arose from a situation where the applicant asked a neighbour for some cigarettes. The victim provided the applicant with two cigarettes but advised that they were her last.
The applicant left but returned shortly thereafter requesting more cigarettes. The victim advised she had no more cigarettes. The applicant left and shortly afterwards the victim heard a loud crash as a brick came through her front window. The victim observed the applicant get in his car and drive away.

Offences on 29 February 2016

The convictions for being armed in a way that may cause fear and criminal damage on 29 February 2016 arose from a situation whereby the applicant attended Bentley Hospital requesting to see his case worker. The applicant was told that the case worker was not available at that time but to come back in the afternoon. The applicant drove home and collected a kitchen knife and returned to the hospital.
When the applicant entered the reception of Bentley Hospital he was asked 'what's up Koshin, how can we help?' The applicant said 'fuck this Koshin shit' and produced a 30 centimetre long knife. The applicant struck the perspex glass in front of the receptionist twice with a knife causing staff to feel frightened. The receptionists had to get other patients out of the area and then barricaded themselves inside the reception area to prevent the applicant getting in.
The applicant also dented a drinking fountain, slashed two chairs and stabbed a plasma screen LG television with the kitchen knife causing a total of $2,400 damage.

Offence on 4 April 2016

The conviction for threats to injure, endanger or harm any person on 4 April 2016 arose from a situation where the applicant phoned the victim (his mental health nurse and case manager at Bentley Hospital).
When the victim told the applicant that the hospital would not be able to ensure Centrelink provided more disability benefits to the applicant, the applicant threatened to kill the victim and other staff at the hospital.

Offence on 20 June 2016

The conviction for driving with a prescribed illicit drug in oral fluid or blood on 20 June 2016 arose when the applicant was stopped by police and was required to submit a preliminary oral fluid test.
The applicant then underwent an oral fluid test and tested positive for methamphetamine.
2019 Offences

Offence

Date of offence

Penalty

Disorderly behaviour in public

(s 74A(2)(a) Criminal Code)

24/1/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Fail to obey order given by an officer

(s 153(1) Criminal Investigation Act 2006)

25/1/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Damaging property

(s 445 Criminal Code)

26/1/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Criminal damage or destruction of property

(s 444(1)(b) Criminal Code)

28/1/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Disorderly behaviour in public

(s 74A(2)(a) Criminal Code)

28/1/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Without lawful excuse trespassed on a place

(s 70A(2) Criminal Code)

28/1/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Breach of protective bail conditions

(s 51(2a) Bail Act 1982)

5/2/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Disorderly behaviour in public

(s 74A(2)(a) Criminal Code)

5/2/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Giving false personal details to police

(s 16(8) Criminal Investigation (Identifying People) Act 2002)

5/2/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Without lawful excuse trespassed on a place

(s 70A(2) Criminal Code)

5/2/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Without lawful excuse trespassed on a place

(s 70A(2) Criminal Code)

11/2/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Without lawful excuse trespassed on a place

(s 70A(2) Criminal Code)

11/2/19

Community Based Order (8 months concurrent)

Sentenced on 4/4/19

Material facts relating to the 2019 offences

Offences relating to the Waterford Plaza Shopping Centre

On the afternoon of 24 January 2019 the applicant was outside Waterford Plaza Shopping Centre (Waterford Plaza) acting in an aggressive and erratic manner and shouting racial profanities at members of the public (using extremely vulgar language). The applicant was approached by security.
The applicant abused security causing an off-duty police officer to step in and assist with the apprehension of the applicant. The location of the incident was in a highly populated area with several members of the public walking past at the time, including children. Police attended and issued the applicant a move-on notice for 24 hours. The applicant was moved on and conveyed to his home address. His explanation was 'I've had a few drinks'.
At 9 am on 25 January 2019 police were called to Waterford Plaza again. The applicant was being spoken to by security staff as he had been observed behaving in a disorderly fashion. Police summonsed the applicant and told him to 'move on'. Security staff at Waterford Plaza personally issued the applicant with a 'One Month Banning Notice' the effect of which was to ban him from entering any part of the Waterford Plaza and the surrounding property until 25 February 2019.

On Monday, 28 January 2019 the applicant was walking through the carpark of Waterford Plaza towards the main shopping area. The applicant was approached by security staff advising the applicant that he had been banned from the property. The applicant became involved in a verbal altercation with security staff. The applicant yelled at the security staff 'who the fuck are you? You fucking cunts, fuck off' for approximately 34 minutes before the applicant walked away. Members of the public were in close proximity to the incident.
The applicant was spoken to by police a short time later when he was advised that 'No security guard can tell me I can't go to the shops there. I don't care about the banning notice. I will go back and keep on going back there. I don't care, I will stab people there if I have to'.
The series of events described above resulted in convictions for disorderly behaviour in a public place, for failure to obey an order given by an officer and trespassing.

Offences at Kensington Police Station

The charge of criminal damage or destruction of property occurred between 1:30 pm and 2:30 pm on 28 January 2019 when the applicant was being held in Cell Block 1 at the Kensington Police Station.
During this time the applicant had used his hand to smear his excrement along the three walls of the cell. As a result the cell block was unable to be used and external cleaners were required to attend to clean the cell block. The cost for the cleaning was approximately $1,500. No explanation was given by the applicant for its actions.

Offences relating to uprooting trees on 26 January 2019

The conviction for unlawful damage on 26 January 2019 occurred when the applicant was at Elderfield Reserve in Manning at about 8:30 am. The applicant uprooted two small trees from the reserve and snapped the stakes holding the trees in place. He also snapped branches of larger trees and threw them on the ground.
The applicant caused approximately $200 worth of damage. Police attended the scene and spoke with the applicant who was sitting on a bench in the Elderfield Reserve. The applicant stated 'he was a public servant and was creating jobs by damaging the trees'. He was issued with a move on order which he obeyed by leaving the area.
The second conviction for unlawful damage occurred on 26 January 2019 when the applicant was at the Reserve between Manning Road and Milano Drive Tarrawarra at about 10:30 am. The applicant uprooted seven small trees and snapped the stakes holding the trees in place which caused approximately $700 damage. Police attended and arrested the applicant who was laying on the ground. When asked why he damaged the trees the applicant stated he 'didn't care'. He was conveyed to Kensington Police Station and bailed for the offences.

Further offences at Waterford Plaza

As stated above, on 25 January 2019 the applicant was issued with a notice banning him from attending the Waterford Plaza for one month. On 29 January 2019 the applicant appeared at the Perth Magistrates Court and was released on bail to appear again on 21 February 2019 with bail conditions after signing a protective bail undertaking. A condition was imposed preventing the applicant from coming within 100 metres of Waterford Plaza.
The offence of disorderly behaviour in a public place occurred on 5 February 2019 when the applicant attended Waterford Plaza. The applicant was identified by security staff walking in the front entrance of the premises. Security staff approached the applicant and advised him that he was in breach of a trespassing notice.
The applicant became enraged and began swearing and yelling obscenities loudly at security staff. The applicant yelled 'Fuck you guys. Do you want the black dick? Go fuck yourselves. Jail is my home'. The accused yelled loudly for approximately one minute. Waterford Plaza was busy at this time and children were present in that location. The applicant spat at two security staff members with the spit hitting them on their T-shirts.
Police were subsequently called by security staff and arrived at the location. Shortly after police spoke to security staff at that location and were directed to the applicant who was seated in the front entrance at a table. The applicant was arrested on the basis that he had breached protective bail conditions and was conveyed to the Perth Watch House for that matter and others. The incident was captured on CCTV footage.
The offence of giving false personal details to police occurred when the applicant was spoken to by police. The police asked the applicant for his personal details, namely full name, date of birth and residential address as he was a person who may be able to assist police in the investigation of the suspected criminal act.
The applicant stated his name was Mohammed Hussein Abdi Hasi born 20 August 1980 of no fixed place of abode. Enquiries subsequently revealed the applicant had provided a false name. The applicant was identified as Koshin Muse Care born 20 August 1980 of no fixed place of abode. The applicant was arrested in relation to another matter (breach of protective bail conditions). The applicant was subsequently charged.
The police were called in relation to the trespass by the applicant and in relation to another matter (disorderly behaviour). By being at Waterford Plaza the applicant had breached his protective bail conditions. The applicant was subsequently arrested for the matter and was conveyed to the Perth Watch House. Bail was refused due to the nature of the events.

Statutory scheme applicable to T extensions

There are a number of Tribunal authorities in relation to applications for a T extension such as Khalil and Department of Transport [2014] WASAT 158 and Topic and Department of Transport [2015] WASAT 16. However, the statutory scheme has been amended since these authorities with the commencement of the RTATD Regs on 27 April 2015 (and the repeal of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA).
The current statutory scheme is addressed in decisions such as Bekhit and Department of Transport [2016] WASAT 108 at [12][14] (Bekhit); which was affirmed on appeal in Bekhit v Department of Transport [2017] WASC 50 (Le Miere J).
The applicable statutory scheme is as follows.
Section 143 of the Road Traffic (Administration) Act 2008 (WA) (RTA Act) provides for the making of regulations necessary or convenient for giving effect to the purposes of the Act.
The authorisation to drive a motor vehicle, including for reward as a taxi driver, is found in the RTATD Regs. Reg 7(1) of the RTATD Regs provides that the CEO may grant a person a licence authorising the person to drive a motor vehicle on a road. The term CEO is defined to mean 'the chief executive officer of the department of the Public Service principally assisting in the administration of this Act': s 4 of the RTA Act.
A driver's licence does not include an authorisation to drive a motor vehicle for the purpose of carrying passengers for reward unless endorsed under reg 12 of the RTATD Regs: Reg 11(1) of the RTATD Regs.
Under regs 12(1) and 12(2)(a) of the RTATD Regs the CEO may endorse a driver's licence to include a T extension. The holder of a driver's licence endorsed with a T extension is authorised to drive for the purposes of carrying passengers for reward, including in a taxi. Under reg 12(7) of the RTATD Regs, the CEO may make a T extension endorsement if, relevantly, satisfied that the applicant:
(a)has, for a period of at least 3 years or periods adding up to at least 3 years, held a relevant driving authorisation; and
(b)has reached 20 years of age; and
(c)is of good character; and
(d)is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward.
The CEO's refusal (on 21 September 2018) to grant the applicant the T extension was a reviewable decision as that term is defined in reg 70 of the RTATD Regs. A person can (and in this instance the applicant did) request the CEO to reconsider the decision to refuse the T extension: reg 72(1) of the RTATD Regs.
The CEO's decision to confirm a decision to refuse a T extension on reconsideration (made on 31 October 2018) can be reviewed by the Tribunal: reg 32(1) of the RTA Regs. The application for review was made on 28 November 2018.

Respondent's submissions

The respondent's submissions can be summarised as follows.

The applicant's character

The respondent outlines that the question of good character is essential to holding a T extension. It follows that the applicant cannot be granted a T extension unless the Tribunal is satisfied that the applicant is of good character. The respondent submits that the protection of the public is the primary concern of the CEO.
The risk posed to the public by granting a T extension must also be assessed taking due account of the applicant's conduct which resulted in his convictions. The respondent submits the Tribunal should apply the analysis that was set out in Costello and Department of Planning and Instructure [2009] WASAT 188 (Costello) where it was stated (at [26]) that the Tribunal must evaluate the circumstances in which offences have been committed and the need to ensure that the public is protected from persons who are considered to be not of good character.
The concept of 'good character' refers to 'notions of moral quality': Mohamed v Director General Department of Transport [2010] WASC 375 at [28] (Allanson J) (Mohamed). The respondent also refers to the decision in Upton and Director General of Transport [2012] WASAT 63 in relation to assessing the issue of 'good character' in a vocational context.
The respondent also submits that there are other interests that the Tribunal must balance. The first is the public expectation that taxi drivers are properly screened and evaluated by authorities. The second is the general interest of the taxi industry: Costello at [27].
The respondent also refers to the decision of Wheeler J in Tavelli v Johnson(Unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) which sets out a number of considerations on the relevance of convictions when making assessments of character.
The respondent submits that the applicant has shown no remorse or contrition in the sense outlined by Tavelli: ts 13-14; 21, 31 July 2019.
The Tribunal's decision in Topic and Department of Transport [2014] WASAT 129 provides further guidance on the interpretation of 'good character'. That case involved bodily harm by a taxi driver to a woman but in the context of a breakdown of marriage: at [30]. The concept of 'good character' must always be construed in the context of the relevant legislation: Mohamed at [28]

Impact of convictions

The respondent's SIFC notes that the applicant has, in the last three years, twice been convicted of threats to injure and endanger or harm any person, twice of criminal damage or destruction of property, once of driving with the prescribed illicit drug (methamphetamine) and once of being armed in a way that may cause fear.
It is also the case that the date of the respondent's SIFC predates the applicant's 2019 convictions.
The respondent submits that the circumstances of the applicant's convictions indicate that the applicant: has a tendency towards violence; resorts to violence when involved in conflict; and is unpredictable and uncontrollable in such situations.
Although none of his convictions occurred while the applicant was driving a taxi, the nature of the offences are relevant to the proposed occupation of driving passengers for reward in a taxi.
The respondent submits there is significant doubt that the applicant would conduct himself in an appropriate manner, and to the standard required of a T extension holder, when dealing with passengers.
The applicant has displayed limited remorse and understanding of the offending and expressed only a limited extent of responsibility for the offending despite his convictions. The respondent considers that this demonstrates a lack of understanding of the seriousness of his repeated offending coupled with a lack of remorse.
The respondent highlights the following elements of the applicant's convictions:
(a)The applicant reacts to disagreement with physical violence;
(b)Those physical responses are immediate, irrational and disproportionate; and
(c)The applicant has a propensity or inclination to violence.
The respondent submits that the applicant's reactions to normal everyday situations are unpredictable and violent. The applicant has not demonstrated an ability to deal with disagreement. The applicant's violence is unprovoked and disproportionate and he poses a significant danger to the public.
Given the circumstances and gravity of the offences and the lack of insight displayed by the applicant in relation to his behaviour, the respondent considers that the applicant poses a risk to the safety of the public.
The respondent also highlights the inherent nature of driving a taxi involves transporting vulnerable people. This commonly happens late night when the passengers are affected by alcohol and are vulnerable within the confines of a taxi. The scope for argument between the applicant as a taxi driver and a passenger regarding fares or the appropriate route is easily foreseeable. The passengers are in a position of vulnerability and would be dependent on the applicant for their safety in the confines of his taxi.
The applicant's conduct is an intrinsic part of his overall character which should not be segmented into how he behaves when dealing with the public at the hospital waiting area or his neighbours or people at Waterford Plaza and how he might predictably behave as a taxi driver when dealing with people.
The respondent submits that the seriousness of the convictions which involved victims who were both known and unknown to the applicant evinces that the applicant does not meet the requirements of good character.

Impact of traffic convictions

The respondent also points to the applicant's traffic infringements including three which were committed whilst the applicant was driving a taxi. The respondent refers to the Tribunal's decision in Ford and Department for Planning and Infrastructure [2009] WASAT 236 at [4] where it was stated that 'the interests of the public and the taxi industry require that a high standard be maintained for persons who seek to be licensed as taxi drivers'.

The applicant's medical condition

The applicant submitted with his application for a T extension a medical assessment certificate in which Dr Raad Hassan states the applicant has a medical condition known as paranoid schizophrenia.
Dr Hassan outlines that the applicant is taking prescribed medication through an injection every three months. Dr Hassen indicates that the applicant is suitable to drive a vehicle to commercial vehicle standards according to Austroads: Assessing Fitness to Drive Guidelines.
The respondent submits that Dr Hassan's assessment only goes to the ability of the applicant to physically drive a commercial vehicle and in no way relates to his ability to deal with other persons in the course of conduct as a taxi driver.
The applicant's bundle included a letter dated 20 November 2018 provided by Mr Keith La'Brooy who is a clinical nurse at the Royal Perth Bentley Group (RPBG). Mr La'Brooy's qualifications to make that assessment are not set out, but his letter explains that since remaining on his treatment the applicant has been stable and motivated to return to his previous employment.
Further he outlined that the applicant's convictions and behaviour can be explained as possibly 'illness driven' occurring when the applicant was not receiving treatment. Mr La'Brooy is of the opinion that if the applicant remains in treatment he will remain stable in his mental well-being and is ready for the responsibility of returning to the workforce in his capacity as a taxi driver.
The respondent says that little weight can be placed on Mr La'Brooy's letter as he is not qualified to provide an assessment as to whether the applicant is suitable for return to the workplace.
Dr Eileen Tay, a psychiatrist at RPBG, subsequently wrote to the respondent on 22 January 2019 outlining that while staff at the facility (such as Mr La'Brooy) may write a letter of support that does not mean they are qualified to provide further opinion regarding the diagnosis treatment and prognosis factors. Furthermore Dr Tay outlined that in her view the applicant's recovery is 'in its early days': ts 20, 31 July 2019.
The respondent considers that in the absence of detailed opinion from a certified medical practitioner regarding the applicant's mental condition, there is a question over whether the applicant is able to undertake all tasks required of a taxi driver (in particular dealing with members of the public) and that the risk the applicant poses to the public remains.
The respondent submits that the applicant should not be allowed to diminish his responsibility for his behaviour based on any medical condition and furthermore contends that this raises a question as to whether the applicant is fit on medical grounds to hold a T extension which is a further matter the Tribunal needs to be satisfied of: reg 12(7)(d) of the RTATD Regs.

Public expectation

The respondent notes that the Tribunal has, in Costello, stated that members of the public use public transport (such as taxis and rideshare vehicles) in good faith and in expectation that drivers are properly screened: at [27].

Applicant's submissions

The applicant did not file a SIFC nor, despite repeated invitations from the Tribunal, provide any evidence. No character evidence was provided. At the final hearing of this matter, despite no witness statements being filed the Tribunal offered the applicant the opportunity to provide an oral statement in relation to his application to address some of the matters that were put against him. The applicant declined that invitation but wanted to make some submissions: ts 23, 31 July 2019.
The only materials the applicant provided in support of his application was the letter from Mr La'Brooy (discussed at [87-88] above).
The applicant submits he has been a taxi driver for 10 years both in New South Wales and Western Australia and has had no complaints in relation to his work as a taxi driver during that time. The applicant suffered a family breakdown and some other personal issues which have impacted his life circumstances. The applicant outlines that he and his wife separated and that the family breakdown (which involved his child) affected his life. He now says he is back on track and that his life has changed in a positive way.
The applicant submits that his issues are now resolved. His daughter has just moved back to Australia and his relationship with his wife has improved (although they are still separated): ts 23, 31 July 2019.
He is paying off his fines and served his community order and is in a good position to start a new life to support himself and his family. The applicant submits he is of good character now. He wants to 'get back on track' in his financial life and give back to the family and community. The applicant outlines that he wants to have a 'better … life' and getting the T extension to his driver's licence will help him support himself and his family, especially his daughter: ts 23-24, 31 July 2019.
The applicant says he is passionate about driving taxis and loves working as a taxi driver. The applicant wants to stand on his own feet. He refers to the letter from Mr La'Brooy and says that they (being the RPBG) consider he has a 'stable mental wellbeing': ts 24, 31 July 2019.
The applicant says he is an experienced taxi driver and has the capacity to work as a taxi driver. He wants to live independently, get out of welfare and support himself and his family: ts 24, 31 July 2019.

Issues for determination

The ultimate issue the Tribunal must determine is whether the applicant satisfies the criteria for the granting of a T extension set out in reg 12(7) of the RTATD Regs.
In making that assessment the Tribunal must assess whether the applicant inter alia 'is of good character' for the purposes of reg 12(7)(c).
This proceeding arises in the Tribunal's review jurisdiction. The Tribunal is to hear the matter de novo and reach the correct and preferable decision: s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Analysis and disposition

The Tribunal's analysis will focus on the central element that appears to be in contest for the purposes of reg 12(7) of the RTATD Regs; that is whether the applicant could be said to be 'of good character'.
While the respondent's closing submissions suggested (at ts 21, 22, 31 July 2019) that along with the question of good character, there is also a question as to whether the applicant is mentally fit for a T extension for the purposes of Reg 12(7)(d) of the RTATD Regs, given my findings on the question of good character, it is unnecessary for the Tribunal to deal with that issue.

The requirement of good character

The question of good character is the central consideration in these proceedings and was the focus of the parties' submissions.
In order for the Tribunal to reach the view that the 'correct and preferable decision' is to grant T extension, it must be satisfied that the applicant has the appropriate attitude, temperament and disposition to be a taxi driver.
The public places much trust in the taxi industry to safely carry passengers to their destinations. As the respondent submitted, it is also the case that taxi passengers are vulnerable. They are vulnerable because they are within the confines of a taxi with a driver who is, in most instances, unknown to them. There may also be added vulnerabilities arising from the use of alcohol or other substances. For these reasons the public, quite properly, demands that there be close scrutiny of those who wish to be taxi drivers.
The Tribunal agrees with the comments in Costello where it was stated at [27] that:
… Members of the public use public transport in good faith and in the expectation that drivers are properly screened and checked by the State authorities. It is also in the interests of other taxi drivers, and the industry at large, that the public perception of the industry is positive. If not, all drivers would suffer commercially since the public would refrain from using their services.
Embedded within the question of good character are notions are 'moral quality': Mohamed at [28]. In Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552 (Madgwick, Lande and Crennan JJ) (Godley) included (at [34]) a detailed discussion of the concept of 'good character':
…
The words 'of good character' mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432)[.]
In Chowdhury and Department of Transport [2012] WASAT 128 it was noted at [4] that:
… 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 while carrying a passenger.
In Upton at [8] the Tribunal outlined that in considering the question of good character in a 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.

Assessing the question of good character

The Tribunal's task in its review jurisdiction is to make the correct and preferable decision 'at the time of the decision upon the review': s 27(2) SAT Act; LS v Mental Health Review Board [2013] WASCA 128 at [93] [94] (Buss, Newnes and Murphy JJA); Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89 at [105] (Buss P, Murphy and Mitchell JJA).
The Tribunal must make the correct and preferable decision at the time it makes its decision. It follows that the 2019 offences, which occurred after the applicant had applied for his T extension and while the Tribunal proceedings were on foot, are to be taken into account.
In Tavelli Wheeler JA noted (at 7 and 8) that past criminal convictions in the context of whether a person was of 'good character' and a 'fit and proper person' will generally be regarded as more serious if:
(1)they occur in the course of or relate to the carrying out of the relevant occupation;
(2)they are offences of dishonesty, broadly understood;
(3)they occurred whilst the person was the holder of the licence in question; and
(4)they are otherwise so serious either in and of themselves or as representing a course of disregard for the law as to reflect particularly adversely on the character of the person committing them.
In Tavelli her Honour then went on (at 8) to set out some indications that a person may be of good character and a fit and proper person notwithstanding previous convictions by taking into account the following factors:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes;
(2)if the offences were committed a substantial time ago;
(3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; and
(4)the person's character generally since the commission of the offences.
Tavelli has been cited by the Tribunal in Upton at [10]-[11] and also Bekhit at [15].
In assessing questions of 'good character' in the context of criminal conduct, in Godley the Full Court of the Federal Court set out (at [34]) that:
…
For a finding to be made … that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term 'present criminal conduct' is to be understood), becomes 'past criminal conduct' must be a matter of judgment.

Is the applicant a person of good character?

The Tribunal is not satisfied that the applicant is a person of good character for the following reasons.
The Tribunal finds that the applicant has a propensity for unprovoked and uncontrolled violence. The 2012 convictions, where he set upon his housemate while he was asleep and continued to attack him until he could escape, is plain evidence of that. The Tribunal accepts that the incident was some time ago now but the Tribunal is in no way satisfied that the applicant could be said to be reformed. In this regard, the Tribunal is guided by the comments of Walsh JA in ExParte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; (1966) 67 SR (WA) 448 (Wallace P, Walsh and Holmes JJA) at 461 that:
One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man[.]
The applicant's propensity for violence was also displayed in February 2016 when he attended the waiting area of the Bentley Hospital with a 30 centimetre knife. While he did not hurt anyone, his violent conduct no doubt caused fear to all those present as well as causing criminal damage. The indiscriminate throwing of a brick through a neighbour's window in 2016 is also concerning. Again, these incidents may be said to be three years old but the Tribunal has no evidence before it in order to be satisfied that the applicant is no longer capable of, or prone to, such conduct.
The Tribunal is cognisant of the fact that the 2019 convictions do not involve violence against persons. However, the 2019 offences include indiscriminate damage to a number of trees. The Tribunal considers that the damage to trees, while not serious criminal conduct of itself, are still wanton acts of unprovoked violence. These separate incidents together establish a pattern of conduct of resorting to violence which only heightens the Tribunal's concerns. The applicant has provided the Tribunal with no evidence to satisfy it that he is no longer prone to violence and that that conduct is 'past criminal conduct' in the sense discussed in Godley at [34]. General comments in the applicant's submissions to the effect that he is a 'person of good character now' do not satisfy the Tribunal.
On the question of good character, the Tribunal also finds that the applicant is prone to threatening and abusive conduct. He has committed offences in 2012, 2016 and 2019 that involve threats and general abuse. Those threats have involved statements to the effect that the applicant has a desire to 'kill' and that 'jail' is his 'home'. In 2016 he was imprisoned for a threat that he would kill his ex-partner if she did not give him money he claimed she owed him. On 4 April 2016 he threatened to kill hospital staff if they could not guarantee continuity of his Centrelink benefits.
Given that taxi drivers must deal with members of the public in an even-handed manner, and having regard to the general vulnerabilities of taxi passengers, a propensity for threats (of violence) must be very seriously regarded. Given how recently the 2019 offences were committed, the Tribunal is not satisfied that this conduct can properly be regarded as past criminal conduct.
A further issue is that the applicant was caught driving with methamphetamine in his system in 2016. For a person seeking to carry passengers for the purposes of reward, driving with drugs in one's system is simply unacceptable. Whilst he was not driving a taxi when methamphetamine was detected and it appears to be a one-off offence, it is conduct that is of concern to the Tribunal especially in combination with the applicant's criminal history. The Tribunal has no evidence before it, nor did the applicant make any submissions to the effect that, his drug use has ceased.
The 2012 offences occurred while the applicant was a taxi driver but did not occur while he was working as a taxi driver. Whilst it cannot be said that the 2016 and 2019 offences occurred while the applicant was a taxi driver it is also the case that his T extension was cancelled in November 2012 (likely as a result of the 2012 offences). The applicant has not been authorised to drive a taxi for almost seven years yet in that time there has been a series of convictions, some of a serious nature, in both 2016 and 2019. The applicant served a term of imprisonment for the 2016 offences.
Given that the core attributes of a taxi driver are to deal in an even-handed manner with members of the public, some of whom may be difficult, abusive or even aggressive, I am not satisfied that the applicant is presently of good character for this vocation. He is prone to violence and is threatening. He has displayed an indifference to laws and to authority at various points, including repeatedly attending the Waterford Plaza in 2019 when he had been banned. So while the offences did not occur in the course of his employment, the Tribunal still regards them as serious in the context of these proceedings which focus on his character.
The Tribunal is also not satisfied that the applicant has any real insight into his offending, what caused the offending, the effect of his conduct on others and how he may manage his behaviour going forward. Whilst he plainly is (or was) getting some treatment and assistance at the RPBG, as evinced by the letter from Mr La'Brooy (a clinical nurse) that, in itself, is not sufficient. Leaving the letter from Mr La'Brooy to the side, the applicant presented no medical or other evidence which may satisfy the Tribunal that the applicant's history of offending is in the past.
In any event, Mr La'Brooy's letter of support was later clarified by Dr Tay (a consultant psychiatrist) who advised in January 2019 that, in her opinion, the applicant's treatment was 'its early days' and that his successful treatment would be dependent on compliance with medication and abstinence from substance abuse such as methamphetamines.
Against that background, general references by the applicant to getting his 'life back on track' do not suffice. Having regard to Tavelli such generalised and vague comments do no show contrition, remorse, insight or even responsibility for the applicant's conduct.
The Tribunal also notes that the 2019 offences were committed after both Mr La'Brooy and Dr Tey's letters were written. The applicant was only sentenced for the 2019 offences in April 2019. If the applicant is said to be in recovery, or otherwise turning his life around, it is only in its initial stages.
Unlike Tavelli, it cannot be said that the offences were committed some time ago, nor is there any evidence of a change in the applicant's circumstances since the time of the 2019 offences, such that would give the Tribunal's satisfaction that the factors that gave rise to the offending have been eliminated.
Furthermore, the applicant's convictions, considered as a whole, represent a course of disregard for the law as to reflect particularly adversely on the applicant's character: Tavelli at 8.
For these reasons, the applicant is not a person of good character for the purposes of reg 12(7)(c) of the RTATD Regs.

Some final comments

It is plain on the evidence before the Tribunal that the applicant has endured a number of difficult circumstances. In recent years he has separated from his partner, his daughter moved away and his life seems to have spiralled out of control at various points. The applicant, at 39 years old, is still a relatively young man but youth will not be on his side forever.
When the applicant presented his submissions at the final hearing he seemed to be attempting to turn over a new page in his life and move on. That is to be commended and encouraged.
However, for the reasons outlined, the Tribunal has found that at this time the applicant is not suitable to be granted a T extension. The applicant's submissions outline that he is passionate about driving taxis. If he does wish to drive a taxi again in the future, it is for the applicant to apply himself to demonstrate that he is a person of good character in the way he conducts himself.

Order

The decision of the respondent to refuse to grant the applicant a T extension pursuant to reg 12 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
15 OCTOBER 2019