CARSON and DIRECTOR GENERAL OF TRANSPORT - [2011] WASAT 141

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008

CITATION: CARSON and DIRECTOR GENERAL OF TRANSPORT [2011] WASAT 141

MEMBER: MS C WALLACE (MEMBER)

HEARD: EDITED REASONS DELIVERED ORALLY ON 17 AUGUST 2011

DELIVERED : 17 AUGUST 2011

FILE NO/S: CC 1008 of 2011

BETWEEN: ROWAN CARSON
Applicant
AND
DIRECTOR GENERAL OF TRANSPORT
Respondent

Catchwords:

Administrative law - Road traffic - Review of cancellation of endorsement class 'T' - Significance of convictions to question of good character

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 68(1)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 42(4), reg 25A
State Administrative Tribunal Act 2004 (WA), s 25, Div 3 Pt 4

Result:

Application successful
Decision set aside

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr P Busby (Representative)

Solicitors:

Applicant: Self-represented
Respondent: Director General of Transport

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

Doyle v Department of Planning and Infrastructure [2008] WASAT 157
Karami and Department of Planning and Infrastructure [2006] WASAT 166
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant's driver's licence endorsement permitting him to drive taxis was cancelled on the basis of the seriousness and nature of his conviction of being armed or pretending to be armed in a way that may cause fear.
The Tribunal set out and considered the factors to be taken into account in determining the significance of convictions to the question of whether or not a person ought be regarded as of good character. On assessing all factors, it concluded that notwithstanding the conviction, the applicant was nevertheless of good character such that the decision to cancel the applicant's taxi endorsement should not stand.

Introduction

This is an application dated 6 August 2011, brought under reg 42(4) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations) to review the decision of the Director General to cancel Mr Carson's extension T licence. Mr Carson has had a T extension to his motor vehicle licence since 3 September 2003. The application was coupled with an interim application to stay the operation of the decision pending the hearing of the substantive application pursuant to s 25 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The interim application was dealt with on 9 August 2011, with Mr Carson agreeing to withdraw the application on the basis that the substantive application would be programmed and finally determined within an expedited period, which was ultimately within eight days of the first directions hearing. The following are the background facts and the findings of material facts made by the Tribunal.
The notice of cancellation of the T extension licence was issued to Mr Carson on 26 July 2011. It was issued on the basis of a finding that Mr Carson was not of good character, given the seriousness and nature of the criminal offences Mr Carson had been convicted of pursuant to reg 25A in that he had been convicted of:
•being armed or pretending to be armed in a way that may cause fear on 27 May 2011;
•contravening a red traffic control sign on 9 September 2009;
•exceeding the speed limit by not more than 9 kilometres per hour on 24 August 2009;
•exceeding the speed limit by 10 to 19 kilometres per hour on 3 March 2006;
•exceeding the speed limit by 20 to 29 kilometres per hour on 2 May 2006;
•traffic demerit suspensions on six occasions;
•no motor driver's licence on six occasions;
•speeding more than 20 kilometres per hour but less than 30 kilometres on two occasions;
• no driver's licence 16 February 1988; and
•wilfully misleading the police on four occasions.
Prior to receiving notice of the cancellation, Mr Carson attended what is known as a Licence Suitability Conference (Conference) on 14 July 2011, at which were present on behalf of the respondent, Mr Cliff Warner of Prosecutions, Ms Kathryn Short, Driver Assessment and Mr Mark Kearns, Passenger Services. It appears clear from the written report of the Conference dated 15 July 2011, and Mr Busby's submissions at the hearing, that Mr Carson's suitability to hold the T extension was in question primarily as a result of his recent conviction for being armed or pretending to be armed in a way that may cause fear pursuant to s 68(1) of the Criminal Code Compilation Act 1913 (WA) (Criminal Code).
During the Conference, Mr Carson was asked to explain the circumstances surrounding the event which led to this most recent conviction. Mr Carson was noted in the report as explaining that he had been involved in an incident with a man earlier in the day and when walking back to his car, two men drove in, blocking him from exiting the car park. One man got out of the car and another man was a passenger in the car. They appeared to be armed with a long object which looked like a baseball bat or a pipe. The report noted that Mr Carson had stated that he was concerned for his safety. He reached into his car, retrieved a fishing knife and brandished it in selfdefence.
The Conference moved on towards discussing Mr Carson's traffic history. Mr Carson mentioned to the respondent's representatives that his traffic suspensions had occurred a long time ago. In relation to the red light traffic contravention, Mr Carson said he was trying to chase down a passenger who failed to pay his fare. Some discussion appeared to have been attempted regarding Mr Carson's other traffic history, but it was noted in the respondent's report that Mr Carson responded by stating that it was too old and therefore irrelevant.
Lastly, Mr Carson was asked if he had changed his name. The report stated that Mr Carson's curt reply was, 'Why would I?' and it was noted that, that response seemed out of place to the panel. In the report's recommendation, it was stated that Mr Carson presented poorly at the Conference, wearing a t-shirt, track pants and a pair of sandals. The Tribunal is puzzled by the report referring to this particular matter as it is not a relevant factor to the respondent's consideration of the issue. It was also noted in the report that Mr Carson's demeanour was quite confrontational, bordering on aggressive whilst questioned and that in all matters put to Mr Carson, he denied being at fault.
The respondent was influenced by what was noted in its report as a total refusal to accept any guilt in relation to the applicant's record, coupled with the severity of the latest conviction, and that these two factors had led to the panel determining that Mr Carson was not of good character to maintain a vocational licence and recommending that the T extension be cancelled. That recommendation was accepted and the decision to cancel was made by the respondent.
In respect of the traffic offence history which was raised with Mr Carson during the Conference, I note from a review of the certified copy of Mr Carson's criminal and traffic history filed in these proceedings that although the respondent's report states that the majority of infractions occurred since Mr Carson was issued his T extension, being September 2003, the Tribunal finds that only a small percentage in fact occurred during that period and the majority occurred in the mid to early 1990s and late to mid1980s. Therefore, many infractions occurred in excess of 20 years ago. Some of the earlier offences were dealt with by the Perth Children's Court, evidencing the age of Mr Carson at that time and the fact that they occurred some time ago. It was part of this early history that Mr Carson was convicted of either refusing to supply or providing a false name and address to the police. It is not clear why this would indicate that Mr Carson had changed his name. However, it is not necessary to look further into that matter for the purposes of this application.
Mr Carson gave credible evidence at the hearing. He stated, and I accept, that he had an altercation with a man as a result of a road rage incident, following which, the man returned with a friend in his vehicle and prevented Mr Carson from leaving a car park in his vehicle. Mr Carson believed that when the man stepped out of the car, he and/or the passenger had a weapon of sorts. He therefore retrieved from his vehicle a fishing knife from under the driver's seat. Mr Carson was not, on the day in question, driving his taxi and gave evidence, which I accept, that the knife had never been present in his taxi.
Mr Carson also gave evidence, which I accept, that he does not carry a weapon of any sort in his taxi. Mr Carson has stated that he produced the knife to scare off what he believed were attackers and to defend his personal safety. Mr Carson has produced to the Tribunal copies of 18 character references. It is unusual to have such a substantive number of references and many are detailed. All speak very highly of Mr Carson's character and nature, and a number are from regular passengers of his taxi service. A number of the references refer to Mr Carson's community work, including a reference from Councillor Re from the City of Stirling, which refers to assistance Mr Carson has given to the community in respect to criminal deterrent activities. Mr Carson also is noted for his work with the sporting community, particularly the Mercantile Football Association and the Kingsley Amateur Football Club. There is no need to refer to each reference in detail, but suffice to say that they are impressive, detailed and of a significant volume. Three character referees also gave oral evidence at the hearing, being Mr Randall, Mr Hodgson and Ms Bryan. They confirmed that they were aware of Mr Carson's recent conviction and the circumstances in which they were providing the character references. They each spoke in very positive terms of Mr Carson's character and his nature.

Consideration

This matter comes within the review jurisdiction of the Tribunal which is the subject of Div 3 Pt 4 of the SAT Act. Relevantly, the review is by way of a hearing de novo and the purpose of the review is to produce the correct and preferable decision at the time the decision was made. The Tribunal can make any order it considers appropriate, including to affirm, vary, set aside and substitute its own decision, or send the matter back to the decisionmaker for reconsideration.
The question to be determined in cases involving a T extension licence is whether the person is of good character. The position of the respondent is that, taking into account the number and seriousness of the offences Mr Carson has been convicted of, he is no longer of the requisite good character. As noted in Karami and Department of Planning and Infrastructure [2006] WASAT 166 at [12]:
… [In determining] whether or not the applicant is of good character, the exercise of the discretion will always involve questions of judgment as to when the circumstances giving rise to the assessment that someone is not of good character are sufficiently grave to justify the serious step of cancelling a taxi endorsement. … In the case of a 'T' class endorsement, the Director General should exercise his powers in such a manner that the interest of members of the public who might want to use taxis will be safeguarded.
I must therefore be satisfied that, despite the applicant's convictions, he remains of good character to warrant retention of his extension T endorsed licence. The significance of an applicant's convictions in this context was discussed in Doyle v Department of Planning and Infrastructure [2008] WASAT 157. In that decision, reference was made to a decision of Wheeler J in Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996). Wheeler J said that convictions might be regarded as more serious if they occurred in the course of, or relate to, the carrying out of the occupation to which the licence relates. In addition, it was noted that a person may still be of good character, and a fit and proper person notwithstanding previous convictions. Relevant factors to be considered include, if the offences were committed a substantial time ago; the person's character generally, including a period of lack of offending; their age, family support, voluntary work and character references. I would add to those factors that the seriousness of the offence is also relevant as well as the penalty awarded versus the maximum penalty available and the context, occasionally, in which the offence has occurred.
Turning to this case, in considering Mr Carson's character, I have taken into account the following. Firstly, the majority of the offences relied upon in making the decision to cancel the licence are what may be referred to as historical. Most occurred 10 to 20 years ago. To use such historical information to assess a person's character today, in the Tribunal's view, is prejudicial and unfair to the applicant. As noted in the respondent's report, Mr Carson reacted badly when these historical matters were raised. Although the Tribunal would not endorse such behaviour, I note that a defensive response should be expected by the respondent if it intends to take such an approach.
Mr Busby for the respondent submitted that the conviction of most concern to the respondent, was the applicant being armed in a way that may cause fear, pursuant to s 68(1) of the Criminal Code. Relevant factors which the respondent should have considered in exercising its discretion, in the Tribunal's view, is that that section is effectively one of strict liability. Thus, even though Mr Carson may well have acted in selfdefence, he would have been convicted in any event.
In addition, the court decided to deal with the offence by way of a summary conviction and although the maximum penalty is three years' imprisonment and a fine of $36,000, Mr Carson was only fined $750. This must indicate that the circumstances were extenuating and it was therefore dealt with by the magistrate as a much lesser scale offence. In addition, Mr Carson was not working as a taxi driver at the time of the offence. He was driving his personal vehicle and it involved a fishing knife stored on occasion in that personal vehicle. Mr Carson's evidence is that that knife is never stored in his taxi.
Mr Carson produced to the Tribunal, 18 character references which were glowing of his character, evidenced his voluntary and community work, and many were written by regular passengers in his taxi. They support his position that he has had a mostly clean record during the eight years driving his taxi and that the recent conviction was not motivated by a complete disregard for the law or due to an aggressive nature, but rather driven by the particular circumstances of the event. This position is supported, as I have mentioned, by the very large discrepancy between the maximum penalty available for that offence and the penalty ultimately imposed by the magistrate. I also accept Mr Carson's evidence that he is remorseful of that conviction and has learnt from the lesson it has provided.
These are all good grounds, in my view, that the applicant does not represent a threat to the welfare of the fee paying public by reviving his authorisation to drive a taxi. For the above reasons I am therefore of the view that, despite the applicant's conviction record, he is, as of this date, a person of good character for the purpose of ascertaining suitability for an extension T endorsement on his driver's licence.

Orders

1.The application is upheld.
2.The decision of the respondent's delegate to cancel the T class endorsement is set aside.
3.The respondent shall forthwith endorse the applicant's driver's licence with an extension T.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, MEMBER