COSTELLO and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
[2009] WASAT 188
•24 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC ACT 1974 (WA)
CITATION: COSTELLO and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2009] WASAT 188
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 16 SEPTEMBER 2009
DELIVERED : 24 SEPTEMBER 2009
FILE NO/S: CC 1116 of 2009
BETWEEN: RAYMOND GEORGE COSTELLO
Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Taxi licence - First offender - Seriousness of the offence - Conviction for possession and supply of cannabis - Public interest - Can hardship be taken into account - Decision-maker must have reason to believe that the person is not of good character
Legislation:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 25(a), reg 42, reg 42(4)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
Application dismissed and the decision of the Department affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Busby (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Director General for Planning and Infrastructure v Nealon [2003] WASCA 161
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Costello's taxi license was cancelled by the Department for Planning and Infrastructure after his conviction of possession of cannabis with the intention to sell and supply. He received an 18 month term of imprisonment suspended for two years.
Mr Costello sought a review of the decision on grounds of his many years experience as a taxi driver, his good record, the hardship he would face if the decision remained and the medical condition of his wife who allegedly used the cannabis.
The Department for Planning and Infrastructure sought for the decision to be affirmed on grounds of the seriousness of the conviction and the statutory requirement that it only need to 'have sufficient reason to believe' that Mr Costello was not of good character for the licence to be cancelled. The possession of such a large amount of cannabis reflects adequately on his character for the licence to be revoked. The Department for Planning and Infrastructure also contended that hardship was not a factor that can be taken into account by the Tribunal.
The Tribunal found that from the perspective of the public, Mr Costello's conviction was serious. If a taxi driver is involved in the use, possession and/or supply of cannabis of such a large quantity, it is even more concerning. 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.
In regard to the plea of hardship, the Tribunal concurred with the Department for Planning and Infrastructure that the Tribunal cannot take into account personal hardship in considering the review. Mr Costello should have taken all the risks into account when he decided to accept and deal with such a large quantity of cannabis.
The Tribunal therefore concluded there was sufficient reason to believe that Mr Costello was, due to the serious conviction, not of good character to be licensed as a taxi driver.
The decision to cancel his 'T' driver licence was affirmed and the application for review dismissed.
Background
Mr Costello seeks a review under reg 42 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations) of a decision by the Department for Planning and Infrastructure (Department) to cancel his class 'T' extension licence. The decision to cancel the licence was made on 24 June 2009 pursuant to a conviction of Mr Costello for the possession of a prohibited drug (cannabis) with the intent to sell.
Mr Costello lodged an application for review of the decision on 21 July 2009 and the first directions hearing took place on 6 August 2009. The matter was set down for a hearing on 16 September 2009.
The Department filed a statement of issues, facts and contentions with several documents attached. Mr Costello replied by letter dated 27 August 2009.
At the conclusion of the hearing the Tribunal referred the matter back to the Department for it to reconsider the decision. The Department informed the Tribunal and Mr Costello on 18 September 2009 that it is satisfied that it had made the right decision by cancelling the licence.
Statutory framework
The Tribunal has in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the same jurisdiction, functions and discretions as those of the delegated officer pursuant to the regulations.
The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) of the SAT Act).
The review hearing is therefore 'de novo' (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the decision-maker at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision -
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) of the SAT Act).
Regulation 42(4) grants Mr Costello the right to seek a review of the decision.
Contentions and evidence
Mr Costello is 65 years of age and has held a 'T' extension since 1995. He was convicted on 8 May 2009 in the Geraldton District Court of possession of a prohibited drug with intent to sell or supply. A total of 1.36 kilograms of cannabis was found in plastic buckets in the back of his car when it was stopped for a random search.
Mr Costello was sentenced to 18 months' imprisonment suspended for two years.
The Department considered the information and informed Mr Costello on 24 June 2009 of its decision to cancel the licence on grounds that the Department had reason to believe Mr Costello was not of good character.
The Department contends that it has sufficient reason to believe that Mr Costello is not of good character due to the seriousness of the conviction. The offence was committed recently, the punishment was serious and the interests of the public justify the cancellation. A person who is issued with a taxi license is held in trust by the public and there is an expectation by the community that a strict licensing regime is kept in place. Although the offence was not committed while Mr Costello was on duty, it can be taken into account in forming an opinion about his character. The Department accepts that Mr Costello has otherwise had a good record, that he is elderly and that financial hardship may be caused by the cancellation. The interests of the public, however, outweigh those of Mr Costello and the cancellation should be affirmed.
Mr Costello explained that he possessed the cannabis on grounds that his wife, who is 72 years of age, suffers osteoarthritis and rheumatoid arthritis and she used the cannabis to alleviate her pain and discomfort. He added that he has been diagnosed with prostate cancer of an advanced stage and that he also wanted to use the cannabis as a pain relief.
Mr Costello further contended that he had been a taxi driver for many years and that he was licensed to drive in Victoria where he did part-time work for about 17 years. He continues to drive part-time and has an exemplary record. He contends that he would suffer serious hardship if the decision was not reversed.
Ms Hipper, who owns the taxi, gave evidence on behalf of Mr Costello. She described him as very trustworthy and a man of good character. He has been driving for her for two and a half years, and his record is flawless. She has found it difficult, if not impossible, to employ another taxi driver due to the lack of suitably qualified persons in Geraldton.
Consideration
The starting point for the Tribunal is reg 42(4) that clothes it with the same discretion as the Department. The Tribunal may cancel the 'T' extension if it has 'reason to believe' that Mr Costello 'is not of good character' (reg 25(a)).
The Tribunal is put in the same position of the Department to take into account the interests of Mr Costello, as well as the interests of the public. In doing so, the Tribunal must take into account the circumstances when the offence was committed and the interests of the public to be protected against persons who it has reason to believe may not be of good character. The Tribunal can take into account any information of relevance to his character and is not limited to offences that were committed in the course of Mr Costello's duties.
From the perspective of the public, Mr Costello's conviction is very serious. It is well known what damage and destruction the unlawful use and supply of drugs are causing to society. If a taxi driver is involved in the use or supply of a prohibited drug, it is even more concerning. 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.
Mr Costello has not only been found with a large quantity of cannabis hidden in the back of his car, he also acknowledged that he may have wanted to use it due to his medical condition. There is, however, no evidence to support his claim. The emphasis he has placed on the cannabis being of low quality creates the impression that he fails to understand the seriousness of the offence. He further appears to fail to appreciate the risk he may have put members of the public to if he had been driving under the influence of cannabis. The public would have serious concerns if the Department or the Tribunal knowingly allowed a person with this conviction to operate a taxi.
Mr Costello would have known when he took possession of such a large quantity of cannabis that, if caught, he would be in serious trouble. Although he says he has never used cannabis, the question that remains unanswered is why, if this was his first time that he received cannabis, he would have such a large quantity hidden in his car. It is also not clear why Mr Costello made so much of the cannabis being of 'low quality' that would not sell. The Tribunal finds that his evidence lacks credibility.
The Tribunal acknowledges that Mr Costello is elderly, that he has an otherwise positive record and that he has driven for many years. He is clearly not a habitual criminal. The Tribunal understands that Ms Hipper may have difficulty finding another driver and also accepts her evidence that she has not had any trouble from Mr Costello. But even a first offender can expect strict action if the seriousness of the offence justifies it. In this case, the drastic action of cancellation of a licence is justified.
In regard to the plea of hardship, the Tribunal concurs with the Department that the Tribunal cannot take into account personal hardship in considering the review. This was confirmed in the matter of Director General for Planning and Infrastructure v Nealon [2003] WASCA 161 in which it was found that a magistrate had erred when he took the question of hardship into account (at [17]).
Mr Costello should have taken all the risks into account when he received such a large quantity of cannabis. According to his own evidence, he has been amongst persons who use cannabis although he does not use it himself. But he should then have realised the risk of handling such a large quantity.
The Tribunal therefore concludes that there is sufficient reason to believe that Mr Costello is, due to the serious conviction, not of good character to be licensed as a taxi driver.
Order
1.The application for review is dismissed.
2.The decision of the Department to cancel the 'T' extension licence of Mr Costello is affirmed.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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