DOYLE and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
[2008] WASAT 157
•2 JULY 2008
DOYLE and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2008] WASAT 157
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 157 | |
| ROAD TRAFFIC ACT 1974 (WA) | |||
| Case No: | CC:597/2008 | 13 JUNE 2008 | |
| Coram: | MR T CAREY (MEMBER) | 2/07/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application successful Decision set aside | ||
| B | |||
| PDF Version |
| Parties: | MARK JOSEPH DOYLE DEPARTMENT FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Administrative law Road traffic Review of refusal to issue "F" class licence endorsement Whether applicant a person of good character Relevance of convictions Broad assessment necessary |
Legislation: | Road Traffic Act 1974 (WA), s 48, s 48(1), s 48(4) Weapons Act 1990 (WA) |
Case References: | Tavelli v Johnson (Unreported; WASC, Library No 960693, 25 November 1996) |
Orders | 1. The application is upheld.,2. The decision of the respondent's delegate to refuse to issue the applicant with an "F" class endorsement is set aside.,3. The respondent shall issue the applicant with an "F" class endorsement on the payment of any applicable fee. |
Summary | The applicant was denied the grant of a driver's licence endorsement permitting him to drive buses and other vehicles for reward on the basis of his 2006 convictions for stealing, an offence under the Weapons Act 1999 (WA) and drugs offences. He sought review of the decision in the State Administrative Tribunal.,The Tribunal set out the relevant factors going to the issue of whether by reason of his convictions the applicant should not be regarded as a person of good character. It concluded that a broad assessment was required which took into account not only the nature of the offences but the existence of underlying factors contributing to their commission and whether they remained. On such an assessment of the applicant's case, it found that the more serious weapons offences were symptomatic of a dark period in the applicant's life following his resignation from the police force. The other offences were either not sufficiently serious or had an insufficient connection with the licence sought by the applicant. An otherwise good record, and recent improvement in his mental state and employment prospects, led the Tribunal to conclude that despite his convictions, the applicant is a person of good character for the relevant purpose. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : ROAD TRAFFIC ACT 1974 (WA) CITATION : DOYLE and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2008] WASAT 157 MEMBER : MR T CAREY (MEMBER) HEARD : 13 JUNE 2008 DELIVERED : 2 JULY 2008 FILE NO/S : CC 597 of 2008 BETWEEN : MARK JOSEPH DOYLE
- Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Administrative law - Road traffic - Review of refusal to issue "F" class licence endorsement - Whether applicant a person of good character - Relevance of convictions - Broad assessment necessary
Legislation:
Road Traffic Act 1974 (WA), s 48, s 48(1), s 48(4)
Weapons Act 1990 (WA)
(Page 2)
Result:
Application successful
Decision set aside
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Mr N Fox
Solicitors:
Applicant : Self-represented
Respondent : Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Tavelli v Johnson (Unreported; WASC, Library No 960693, 25 November 1996)
(Page 3)
Summary of Tribunal's decision
1 The applicant was denied the grant of a driver's licence endorsement permitting him to drive buses and other vehicles for reward on the basis of his 2006 convictions for stealing, an offence under the Weapons Act 1999 (WA) and drugs offences. He sought review of the decision in the State Administrative Tribunal.
2 The Tribunal set out the relevant factors going to the issue of whether by reason of his convictions the applicant should not be regarded as a person of good character. It concluded that a broad assessment was required which took into account not only the nature of the offences but the existence of underlying factors contributing to their commission and whether they remained. On such an assessment of the applicant's case, it found that the more serious weapons offences were symptomatic of a dark period in the applicant's life following his resignation from the police force. The other offences were either not sufficiently serious or had an insufficient connection with the licence sought by the applicant. An otherwise good record, and recent improvement in his mental state and employment prospects, led the Tribunal to conclude that despite his convictions, the applicant is a person of good character for the relevant purpose.
Introduction
3 The applicant seeks review under s 48(4) of the Road Traffic Act 1974 (WA) (RT Act) of a decision of the respondent's delegate made on 10 April 2008 and notified on 16 April 2008 to refuse to issue a drivers' license endorsement class "F" to the applicant. Class "F" entitles a licensee to drive for reward vehicles such as buses, limousines and the like.
4 The decision was made by Ms Anne Mason in her capacity as the manager, Central Customer Services as delegate of the Director General of the Department for Planning and Infrastructure. It was made under s 48(1) of the RT Act, on the ground appearing as sub-paragraph (a) of that subsection that the applicant "is not of good character".
5 The decision was reached after an assessment was made of the applicant's criminal record. It is common ground that it was the applicant's convictions on 24 April 2006 which gave rise to the exercise of
(Page 4)
- the respondent's discretion to refuse the applicant's application for the endorsement. The convictions comprised:
• stealing as a servant;
• possessing a prohibited drug (cannabis);
• possessing a smoking utensil; and
• carrying an article with intent to cause fear that someone will be injured or disabled.
Issue
7 The issue for the Tribunal is whether, by reason of his convictions, the applicant should not be regarded as being of good character for the purposes of the applicant's application for an "F" class endorsement.
8 The respondent contends that the applicant could not be regarded as of good character because his convictions represented conduct falling outside the "clear boundaries" which the Director General regards as limiting successful applications for licenses to drive vehicles for reward, in three separate respects. The three respects are:
a) dishonesty;
b) illegal weapon use; and
c) illegal drug use.
9 The applicant contends that, when the circumstances of the offences were considered, they are not as serious in fact as the convictions, on their face, appear. He also submits that the offences committed on the one day were not indicative of his true character but were an aberration symptomatic of a difficult period in his life.
Relevance of convictions and their circumstances to requirement of good character
10 Mr Fox, representing the respondent, submitted initially that the Tribunal needed to have regard to the convictions simpliciter - that is, that there was no ability on the part of the Tribunal to take into account the circumstances of the convictions. In response to some questioning from
(Page 5)
- me, he retreated from such a position, correctly in my view. The circumstances of offences for which convictions are recorded are clearly matters that might be taken into account on a review of the exercise of the Director General's discretion. Mr Fox maintained however, that the applicant was unable to rely upon submissions which were inconsistent with his convictions or sought to bring his guilt into question. This much can, in my view, be accepted.
11 I have taken guidance in my consideration of the significance of the applicant's convictions to the question of whether or not he is of good character for the purpose of s 48 of the RT Act from a discussion by Wheeler J in Tavelli v Johnson(Unreported; WASC, Library No 960693, 25 November 1996) (Tavelli), at pages 6 - 7. Her Honour was concerned with a statutory fit and proper person test, but in my view the observations to which I am about to refer can apply equally to the good character concept given the high degree of commonality between the two and Wheeler J's explicit references to "character" and "good character" in her discussion.
12 After emphasising that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework and no inflexible rules exist in so doing. Wheeler J said that prior convictions might be regarded as more serious if they occurred in the course of, or relate to the carrying out of, the particular occupation for which the licence is required; if they are offences of dishonesty, broadly understood; if they occurred while the person is the holder of the licence in question; or they are otherwise so serious, whether in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them. The significance of any element of dishonesty may vary according to the nature of the particular licence under consideration - in the case of a licence entitling a person to provide services for fee-paying passengers, it might be expected that the person's honesty in the broad sense to which her Honour referred should not be seriously compromised.
13 Wheeler J then noted that a person may still be of good character and a fit and proper person notwithstanding previous convictions. Factors which might lead to that result were:
"(1) where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; (Unreported; SCt of WA; Library No 940678; 6 December 1994) at 31 and the cases there
- cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
- (2) if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on additional factors I list and, in appropriate cases, on others;
(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;
(4) a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences."
14 It is therefore necessary to engage in a broader assessment than simply considering a person's criminal conviction history, even where that consideration encompasses circumstances of the convictions. The assessment should be directed to identifying whether the nature of the offences indicates a particular unsuitability of the person to hold the licence in question, any underlying factors which contributed to their commission, and whether those underlying factors remain or have been diminished or extinguished. It is to such an assessment that I now turn.
Assessment of applicant's convictions and other relevant matters
15 The applicant is 45 years of age and was raised on a farm in the southeast area of the State. He worked for 14 years as a police officer. He resigned from the police service on April 1999, at a time when, to use his words, he had become "burnt out".
16 Although, according to his written statement, the applicant has worked in various occupations since his resignation, it appears that he held no employment for any significant duration right through to the present time. Although no medical evidence of such a condition was produced, the applicant said that for most of that period he suffered from depression, for which he was prescribed antidepressant medication for a period of 10 years until February 2008. In 2008, he obtained employment with an adventure travel company, for whom he has undertaken two tours in the Kimberly region as a trainee tour guide. He has received an offer from the company to conduct one-man tour guides from now until the end
(Page 7)
- of the tour season in November 2008, for which an "F" class endorsement is required. He has relocated to Broome for the purpose of this employment opportunity.
17 The applicant was apprehended on 19 April 2006 when driving his car "down south". At the time, he had a man with him in the car, "Peter", whom he had met at the beach and offered to open his home to him. Peter had been just released from Graylands Hospital and was homeless. The applicant's care of Peter included conveying him to a public hospital when his condition deteriorated. The applicant spoke of the toll on him of looking after Peter, particularly at a time when he was trying to get his own life on track.
18 The trip down south was in response to repeated requests from Peter. After the arrest, Peter was returned to Graylands and that was the last that the applicant saw of him.
19 The applicant's car was stopped by police at Williams for a "traffic stop". A police officer who was speaking with the applicant noticed what turned out to be a replica pistol being handled by Peter. Also located were a wooden handled machete, a wooden bat and two knives. The applicant admitted to the police that all the items were his and his explanation for having them was "I use these items for protection".
20 In his evidence before me, the applicant said that the replica firearm was incapable of being used as a firearm. He explained that it had come into his possession when, as a police officer, he had been involved in the execution of a search warrant. He gave evidence that the person whose property was searched had disappeared, he had kept the replica in his office and, at the time he left the force, it was amongst the contents of his drawers which he had tipped into boxes which ended up at his home. He said it was a stupid act which he indicated was related to his view at the time of his resignation that he had not received his proper long service leave entitlements. He admitted to making further mistakes concerning Peter's access to the replica, first, when allowing him to handle it when he first saw it on trawling through the boxes containing items from the applicant's policing days, and second, when he permitted Peter to take it on the trip down south in his car.
21 As for the other items, the applicant agreed that he, along with many other members of the community, carries a baseball bat "everywhere" for security. However, the machete and knives were carried by him as a normal adjunct to his trips to the bush in respect of which they had many
(Page 8)
- uses including protection from animals such as snakes. On the day in question, he and Peter were travelling to a remote fishing spot. He said that he would still take these types of weapons with him to the country but would wrap them well.
22 As Mr Fox pointed out, the applicant's plea of guilty to the charge of carrying articles with intent to cause fear was at odds with the explanations he now offered the Tribunal. The applicant's explanation for the guilty plea was that he was embarrassed about being charged, his mental state was not good and his judgment was impaired.
23 The charge of stealing as a servant concerned the replica pistol. The circumstances of that offence as related by the applicant have already been referred to. According to the applicant, had he been in a better mental state he would have pleaded not guilty to that charge on the basis of its trivial nature. He said that although technically his conduct was dishonest, it was at the lower end of the scale, and no-one was defrauded.
24 The applicant did not seek to raise any matter which brought into question the drugs convictions. He said that he had used cannabis at that time in an attempt to overcome insomnia. He also said that he no longer uses any illegal drugs and drinks very little alcohol.
My consideration
25 As has been indicated in previous decisions of the Tribunal, a person's character for the purposes of the exercise of a statutory discretion to grant or withhold a licence is to be assessed having regard to the nature of the legislative scheme, objectives and the specific statutory provisions. In exercising its discretion in this case, the Director General is required to have regard to the interests of fee paying customers who might avail themselves of the applicant's services as an "F" class endorsement licensee. The respondent points to the seriousness of the applicant's convictions, and the fact that they are only some two years old, as leading to a conclusion that the applicant is not a person with the required attributes to hold a position of trust, particularly having regard to the three asserted disqualifying aspects (dishonesty, drugs and weapons).
26 Let me say initially that the apprehension of the Director General, through its delegate and legal representative, concerning the applicant's character is understandable. The types of offences for which convictions have been recorded are not ones which would generally be associated with a person considered suitable to hold an "F" class endorsement. However, on the required broader assessment guided by the principles enunciated by
(Page 9)
- Wheeler J in Tavelli, I have come to the conclusion that despite his criminal convictions, the applicant can and should now be regarded as a person of good character for the relevant purpose.
27 The offences did not occur in the course of, nor relate to the carrying out of, the occupation which a holder of the licence applied for is able to engage. When one deconstructs each of the offences, it seems clear to me that either the commission of the offence or the response to the relevant charge, or both, were a product of the applicant's mental state at the time. Accepting the complete absence of expert evidence going to that issue, the applicant's unchallenged evidence is that after a 14 year career in the police service, he had become "burnt out", was on antidepressants for 10 years and did not hold down a permanent job for seven or eight years. I am persuaded by the applicant's evidence that the 1999 offence was more an indicator of momentary pique and stupidity than of any kleptomaniac tendency. There has been no suggestion of any criminal behaviour involving dishonesty since. Details of the drug conviction are scant, the offence involving "a small tin containing cannabis". The applicant gave an explanation for his use of the drug which was consistent with his state of mental unease for much of the past decade, but which the evidence suggests has improved considerably in recent times.
28 The offences concerning the cache of weapons are more troubling, given the inability to call into question the fact of the recorded convictions. At the time of their commission, the applicant appears to have been a person somewhat living on the edge, who took in as a boarder an even more (perhaps much more) marginalised person, some of whose demands should have been resisted but were not. The convictions are testament to a difficulty experienced by the applicant at the time of their commission in April 2006 when on his own admission he was not in a good state. He accepts the folly of his conduct in connection with the replica firearm, and it is clear from his evidence that he regrets the whole series of events commencing with his retention of the replica through to its discovery by police. He has retained the machete and knives and keeps them wrapped, consistent with his stated intention for continuing to hold them. I am satisfied that the circumstances giving rise to his criminal convictions concerning those articles - including his responses to the police - no longer apply. Although most of the offences occurred a little over two years ago, the applicant's otherwise exemplary record (disregarding three traffic offences in 1980, 1982 and 2003), together with the apparent improvement in his mental state, employment prospects and outlook on life are strongly indicative of the closure of a dark and uncharacteristic chapter in the applicant's life.
(Page 10)
29 The applicant filed in the Tribunal some 20 character references, four employment references and a number of further letters of appreciation from persons assisted by the applicant in the exercise of his duties when he was a police officer. The character references go back to the applicant's school days until 2004, when there is a break consistent with my "dark chapter" hypothesis, and then recommence in 2008. The most recent employment reference is from Australian Adventure Travel Pty Ltd indicating that company's willingness to offer the applicant a position, assuming that he is granted an "F" class endorsement. Mr Fox pointed out that most of the references are now outdated. Accepting that is the case, the references provide support for the applicant's contention that he is a person of underlying good character, who committed serious lapses of judgement leading up to and on 24 April 2006. The recent references from his prospective employer and a number of tourists for whom he acted in the role of trainee tour guide are suggestive of someone who is dependable and suitable for the role of tour guide, and in the case of the director of Australian Adventure Travel, disclose (contrary to Mr Fox's submission) an awareness of the applicant's conviction record.
Conclusion and orders
30 For the above reasons, I am of the view that despite the applicant's conviction record, he is, as of today, a person of good character for the purpose of ascertaining his suitability to hold an "F" class drivers' license endorsement.
31 The Tribunal orders as follows:
1. The application is upheld.
2. The decision of the respondent's delegate to refuse to issue the applicant with an "F" class endorsement is set aside.
3. The respondent shall issue the applicant with an "F" class endorsement on the payment of any applicable fee.
- I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
3
0
2