Gilliana v Director General Transport NSW
[2012] NSWADT 28
•21 February 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Gilliana v Director General Transport NSW [2012] NSWADT 28 Hearing dates: 6 February 2012 Decision date: 21 February 2012 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed
Catchwords: Fit and proper; repute; criminal convictions Legislation Cited: Passenger Transport Act 1990 Cases Cited: Murray v Department of Transport and Infrastructure [2010] NSWADT 295 (13 December 2010)
Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (23 December 2011)
Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Nasour v Director-General, Transport NSW[2011] NSWADT 91 (4 May 2011)Category: Principal judgment Parties: Damian Gilliana (Applicant)
Director General Transport NSWRepresentation: D Gilliana (Applicant in person)
Smythe Wozniak Solicitors (Respondent)
File Number(s): 113318
reasons for decision
Background
This was an application for review by the applicant, Mr Gilliana, of the decision of the respondent, Transport for New South Wales, to refuse the applicant's application for an authority to be the driver of a private hire vehicle. The respondent's decision of 26 September 2011 was affirmed on internal review on 12 October 2011. The applicant subsequently applied for review by the tribunal. The applicant is currently employed by a private hire car company, as a customer relations officer, and has applied for an authority so that he may further participate in his current employment by being authorised to drive private hire vehicles. Further, he is concerned that without such an authority he may lose his employment.
In deciding to refuse the applicant's application, the respondent considered the applicant's traffic record and criminal record. In particular the respondent placed weight on the conviction, and sentencing, of the applicant, by the Sydney District Court, for the offences of aggravated break and enter in company with intent to detain person for advantage; aggravated break and enter and steal -deprive persons of liberty; conspiracy to detain - such offences occurring in December 2004 and December/January 2005. The applicant was interviewed by the police in relation to these offences in 2007, and in 2009 he pleaded guilty, and was sentenced by the District Court to a period of imprisonment. He received sentences of imprisonment for all offences, to be served concurrently, and the maximum sentence was an 18 months non-parole period with a further 12 month parole period - the parole period was from 26 February 2011 to 25 February 2012. The evidence is that he was released to parole in February 2011 and the parole period is to end on 24 February 2012, and parole has been successful to date with no further offences being committed.
The applicant pleaded guilty to the criminal charges before the Sydney District Court. The Facts sheet presented to the Court for the charges, to which he pleaded guilty (and thereby admitted the Facts as stated) indicates that the facts of the offences were as follows - there was a plan formulated by various co-accused of the applicant, between October and November 2004, to commit a break enter and steal on a grocery shop, located within a shopping centre, and also on the home of the owner of that business. The intention was to obtain keys and alarm codes for the business so as to be able to steal monies from the safe within the premises. Surveillance was conducted by the co-accused on the owner and various employees of the grocery business. At a later stage one of the co-accused indicated that they wished to seek the assistance of a person, subsequently identified as the applicant. The plan was for the applicant to participate in committing a home invasion and kidnapping of the owner of the grocery shop, at his home. The plan was to break into the house, take hold of the owner, tie him up, take the keys to the grocery shop and get the alarm codes to the shop. Subsequently, in December 2004, the applicant in company with the co-accused, went to the home of the owner of the grocery shop. They kicked in the door in and entered the premises and detained, at knifepoint, three occupants of the premises. After detaining these three occupants the accused persons realised they had entered two wrong locations within the premises as the house had been divided into a number of flatettes. They then left the premises taking some property belonging to the occupants. No injuries were sustained by any of the people detained during the "home invasion".
The facts of the further charge, conspiracy to detain, were that between December 2004 and January 2005 the applicant, with co-accused, engaged in further planning, and acts to progress the plan, to detain and rob the owner of the grocery shop. On one occasion they waited in the loading dock at the grocery store, the applicant being seated in a vehicle holding an aluminium baseball bat, while the co-accused had a bag containing balaclavas, gloves, knives, knuckledusters, cable ties and duct tape. The items were to be utilised if the opportunity arose to abduct the owner of the premises and obtain from him the required codes to access the premises and the safe within the premises and steal money contained therein. There was an agreement between the applicant and the co-accused to commit this offence and divide the proceeds. The owner did not appear, despite the applicant and the co-accused waiting for several hours. On another occasion they also waited for an opportunity to abduct the owner of the grocery store. After these two unsuccessful attempts, the applicant did not take part in the subsequent robbery of the owner of the grocery store which occurred later in January 2005. On Thursday, 22 November 2007 police interviewed the applicant about the "home invasion" and he was placed under arrest and cautioned, he participated in a record of interview and admitted his part in the offences and subsequently pleaded guilty at the Court in 2009. The fact sheet states that although the applicant possessed a knife in his back pocket at the time of the offences, at no time was it produced by the applicant, and he further stated he did not receive any proceeds from the offences. He admitted being part of conducting surveillance of the owner although he stated he did not intend to participate in the robbery which the co-accused were planning to commit. However, it is noted that he pleaded guilty to the charge of conspiracy to detain.
The applicant's case
The applicant provided no written material in support of his case but made oral submissions, and gave some oral evidence, to the tribunal. The applicant also relied on the references which he had previously provided to the respondent and which are contained on the respondent's file. The applicant told the tribunal that he had done "stupid things" when he was younger and therefore his traffic record was poor. He also noted that he had made a mistake, in relation to the criminal offences which were committed in 2004. He noted that although the offences were committed in 2004, he was not interviewed or charged by the police until 2007, and he went to Court in 2009. While he agreed that a long time had not passed since he was before the Court for sentencing, he submitted that time had passed since the commission of the offences and there had been no further offences committed during that longer period of time. He stated he had "done his time" by going to gaol for his mistake and he was very motivated to start his new life.
The applicant told the tribunal that he really liked his job and that he was worried that without the authority to drive the hire vehicles he would lose his job. He noted that his employer was happy with his work but that his employer had told him that he wanted the person in the applicant's position to also be authorised to drive a hire vehicle, as sometimes this was required of the position to assist the business. For this reason, when his application for an authority to drive a private hire vehicle was refused, the applicant had pursued an application for review by the tribunal, as he was very keen to keep this job.
The applicant stated that he wished to live a new life, to build his life, and to hopefully get married to his girlfriend of some years standing. The applicant had provided references to the respondent which were considered as part of the respondent's decision-making process. The two references were a letter by the applicant's employer and a letter from his probation officer. The letter from the applicant's employer did not refer to the criminal charges but did state that the applicant's performance had been satisfactory and the employer was in support of his obtaining an authority. The letter from the parole officer indicated that the applicant's period of parole was to be completed by 25 February 2012 and that he was a low risk parolee who had had a satisfactory period of supervision. They were no other references or testimonials submitted by the applicant as to his good repute in the community. The applicant states that while in gaol he did undertake rehabilitation, he did an anger management course, a first aid certificate and he is trying to get his life back on track. He said it is hard and stressful to re-establish yourself after gaol. He obtained a job soon after leaving gaol as a courier driver, and he later obtained his present job - where he has been for over six months and he very much wishes to stay. He remains concerned that he will lose his job if he does not obtain an authority to drive private hire vehicles. He told the tribunal of his motivation to be employed and to live a productive life.
The respondent's case
The respondent provided the respondent's file in relation to the applicant, and relies also on court documents which were provided pursuant to a summons issued: the court documents were in relation to an appearance by the applicant at the North Sydney Local Court for a special range PCA conviction (Driving with special range prescribed concentration of alcohol as a special driver category ie while on P plates); and to an appearance at the Sydney District Court for the criminal offences referred to above in these reasons for decision. The respondent's case is that the applicant was convicted and sentenced for serious criminal offences on 26 February 2009. The respondent case is also that the applicant's traffic history is poor - at the hearing the respondent submitted that before his licence was reissued on 11 March 2011, the applicant had a very poor driving history - in 84 months of holding a licence he was disqualified (because of demerit points, or due to fine default or due to court disqualification) for almost half that period. He had lost his licence every year since 2001, except in 2006. The respondent concedes that from the reissue of the applicant's drivers licence in March 2011 there have been no traffic infringements.
In relation to the criminal matters the respondent submits that they are very serious matters and a substantial gaol sentence was imposed. The respondent submits that the applicant is still serving the sentence, as he is still on parole which expires at the end February. The respondent submits that the criminal record is evidence of bad repute. It is further submitted that the applicant's case is like saying "I got out of gaol yesterday so give me my licence". The respondent submits the applicant needs to demonstrate a period of non-offending good behaviour, given the seriousness of the offences, before he may be considered to have gained repute or standing in the community. The respondent submits that it is too early to make this finding at this time.
The respondent further submits that the applicant's evidence that he is a low risk parolee does not equate to a finding that he is a fit and proper person. The respondent submits that if someone engages a hire car, as a passenger, that person is entitled to presume that the person driving satisfies the government standards of a responsible driver. The passenger would not be so satisfied if they knew the driver was on parole for serious offences which involved violence. The respondent submits that the applicant needs a period of good behaviour, for a period of time after completing his sentence, before he could be assessed as a fit and proper person.
The law
Section 40 of the Passenger Transport Act 1990 (the Act) provides:
40 Authorities
(1) TfNSW [defined in s3 as:"Transport for NSW" or "TfNSW" means Transport for NSW constituted under the Transport Administration Act 1988] may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised private hire vehicle driver".
(2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle driver.
Maximum penalty: 100 penalty units.
(3) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle:
(i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and
(ii) in accordance with law and custom.
(4) The regulations may create categories or grades of authorities.
(5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a private hire vehicle is being driven to a place to have it repaired or serviced.
Section 40B of the Act provides for the grant or refusal of an application;
40B Grant or refusal of application
(1) Having regard to the purpose of authorisation under this Division, TfNSW may grant an application and authorise the applicant to drive a private hire vehicle, or may refuse the application.
(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy TfNSW as to any matter TfNSW considers relevant.
(3) An applicant is required to pay any fee fixed by the regulations for the authority when first issued.
(4) An authority is to be given in writing by TfNSW to the authorised person.
(5) The authority may specify the category or grade of the authority, and (without limitation) may specify the kind or kinds of vehicles for which the authority is granted.
The objects of the Act are set out in section 3:
4 Objects
The objects of this Act are:
(a) to require the accreditation or authorisation, by TfNSW, [Transport for NSW] of the operators of and drivers involved in public passenger services (other than ferry services), and .............
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and
(f) to encourage co-ordination of public transport services.
The decision under review in the current proceedings is a decision to refuse the applicant's application for an authority to drive private hire vehicles. Section 40B clearly provides that in deciding whether to grant or refuse an application for an authority, regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in s40(3)(a)(b) of the Act, namely, to attest that the authorised person is:
- Of good repute; and
- A fit and proper person (to be so authorised); and
- Considered to have sufficient aptitude and responsibility to drive a private hire vehicle in accordance with - law and custom; and in accordance with the conditions under which the private hire vehicle service is operated.
Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In deciding this matter the tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. A useful review of the authorities was provided in the case of Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199. That case, like many other authorities referred to below, dealt with a taxi driver authority. However, the cases are applicable given the same wording is used in the Act in relation to the purpose of a taxi driver authority and a private hire vehicle authority:
7........The purposes of a taxi drivers authority are set out is s 33(3).....
8.The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:
'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'
9. The Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
'One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the Applicant and ask whether that member of the public, knowing of the Applicant's criminal record and what he has done ... to rehabilitate himself, would object to the Applicant as the driver of the taxi.' .......
12..In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389:
"...is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 etseq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.
.....
14.In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:
...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation."
In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal cited Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393:
A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation.
A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 also provides useful guidance:
38 Good Repute:The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards....
42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence?
43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi."'
The Appeal Panel of the Tribunal in a recent case considered the role of the "perception of the public" in decisions about whether an applicant is a "fit and proper person". The Appeal Panel of the Tribunal in the case of Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16 reviewed relevant authorities and concluded:
When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public
In reaching this conclusion the Appeal Panel noted:
In the same case, Mason CJ stated at [63] that:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker . So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. (our emphasis)
While the seriousness of the conduct is a matter for evaluation by the decision maker, the question of whether it can be assumed that the conduct will not recur is a matter which is to be viewed through the eyes of the general community.
The Federal Court applied the decision in Bond in relation to the meaning of 'fit and proper person' when it upheld a decision of the Administrative Appeals Tribunal relating to taxation agents: Toohey v Tax Agents' Board of Victoria (No 3) [2010] FCA 356 at [46-47]; Toohey and Tax Agents' Board [2008] AATA 262. Middleton J held at [37] that "determining whether a person is the prescribed fit and proper person involves an evaluation of character and reputation." At first instance the AAT decided that the public as a general body would not have confidence in the conduct not occurring again (at [156-160]). The Federal Court reiterated that the enquiry is directed not only to whether improper conduct has occurred, but whether it is likely to occur again, and whether the community will have confidence that it will not occur.
The Appeal Panel's decision in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) (" Murrays case") was subject of comment by the President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 (4 May 2011):
In that case [Farquarssen] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.
The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.
However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).
A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].
A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.
A recent decision of the Appeal Panel of the Tribunal reviewed the authorities: Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (23 December 2011). The case dealt with a review of a decision to suspend a taxi driver authority where the driver had been charged with criminal offences, and focussed on considerations applicable to suspension decisions. However, the reasoning of the Appeal Panel in relation to the purpose of an authority, and public trust/confidence in the context of a regulatory scheme, are relevant to the present matter. The Appeal Panel stated:
12The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' ( Macquarie Dictionary , 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context.
13As we see it paragraph (a) focuses on general characteristics of the driver relevant to the regulated function, paragraph (b) focuses on maturity and technical competence. The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. For a recent discussion of the matters to which the terms 'good repute' and 'fit and proper' are addressed see Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 per Newnes JA (Pullin, Buss JJA agreeing). 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry (per Newnes JA at [27] citing with approval remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70); and 'repute' goes to the public estimation of the person (at [28]-[29]).
14Different licensing schemes use variations on this language, for example 'good fame and character'; sometimes the term 'fit and proper' only is used. Sometimes there are specific references to such matters as 'honesty', 'integrity' and 'competence'.
15As we see it, the purpose of threshold requirements cast in broad terms of these kinds is to give 'the widest scope for judgement and indeed for rejection' (see Hughes and Vale Pty Ltd v NSW (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156). The various broad expressions invite the administrator to look broadly at the character and reputation of the individual and they have at the heart the conferral of public trust. The review tribunal is engaged in the determination of a question of fact. It has wide scope, therefore, for judgement, and its decision can not easily be set aside on error of law grounds.....
.... (AIG)36.The President, sitting at first instance, has suggested that public perception still has some role to play in relation to the matter of 'good repute' which is the primary part of formulation used in s 33F: see Nasour v Director-General, Transport NSW [2011] NSWADT 9 at [29]- [33]. Nasour was a suspension case. There the driver had been charged (not reported but discovered on data matching) with assault occasioning actual bodily harm; common assault, and use etc of an offensive weapon (a tyre lever) with intention to commit an indictable offence. (In addition there was a lengthy adverse disciplinary and traffic record.
37.The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' ( Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ.
Guidance was also offered by the Tribunal in the case Saadieh v Director General, Department of Transport [1999] NSWADT 68 as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal then observed:
17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
the nature, seriousness and frequency of any complaints made against the Applicant;
the Applicant's driving record;
the Applicant's reputation in the community; and
the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
18. In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the Applicant has made to rehabilitate himself or herself during that time and; any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.
Findings and discussion of law and evidence
The respondent case is, in summary, that the applicant's driving history, and in particular his criminal history, support a finding that the applicant is not a fit and proper person to be authorised to drive a public passenger vehicle, in this case a private hire vehicle. The respondent also states that the applicant is not of good repute having regard to the criminal convictions and the overall evidence. The respondent states that there is no evidence presented by the applicant to support a finding that he is of good repute. The respondent states that the applicant has not had a period of time unsupervised in the community and he has therefore not had a period of time to demonstrate his rehabilitation so that a conclusion can be drawn that he is now a fit and proper person.
The applicant's case is that he has rehabilitated - he acknowledges his prior poor traffic record and criminal offending, but states that since release from gaol on parole and obtaining his drivers' licence in March 2011, he has had no traffic offences. He further states that he is trying to live a changed life, as illustrated by his commitment to obtaining and maintaining employment, and his improved driving record. He states that he is concerned that he will lose his job despite having been a satisfactory employee, because the employer would like him to be able to also drive hire cars if and when required. His criminal behaviour was a mistake, he has not reoffended, and the offences occurred some years ago, in 2004. He was not arrested until 2007 and was sentenced by the District Court, on a plea of guilty, in 2009.
In relation to these matters I am satisfied that the offences are serious criminal offences involving detention of liberty and violence (there was use of knives in the detention of occupants during the "home invasion" although no actual physical assaults or injuries occurred). I am satisfied that the offences occurred some years ago, in 2004. The applicant was interviewed by police about these offences in 2007, and admitted the offences during a record of interview. He was sentenced by the District Court in February 2009. There is no evidence that prior to committing these offences in 2004, the applicant was known for similar behaviour, indeed there is no criminal record prior to these offences or since these offences. In the period after the commission of the offences until he was interviewed and charged by police, being in the period from 2004 until 2007, there was no repeat of criminal behaviour. During this period of arguably good behaviour, the applicant was not subject to supervision, nor was he subject to the threat of charges on the evidence before the tribunal. From the time of his release on parole in February 2011 until the date of the hearing in February 2012 the applicant has been of good behaviour. However, during this period of good behaviour he has been subject to supervision, and the sanction of revocation of parole. That he has been of good behaviour is acknowledged by his parole officer in a letter before the tribunal.
Whilst the tribunal could view the offences as a "one-off" episode of criminal offending, what concerns the tribunal is that the criminal planning/criminal behaviour extended over a number of days: firstly the applicant was involved in the 'home invasion' in December 2004 to which most of the offences relate, then he was subsequently involved in surveying the workplace of the intended victim of a planned break and enter, including on one occasion surveying the workplace with implements for use in the abduction of the intended victim. The applicant did not subsequently participate in the detention and robbery of the intended victim (whilst the co-accused did proceed). However, it is of concern that the applicant participated in the plan over a number of days, and as such his actions cannot be seen as impulsive or "one off".
However, given that the criminal behaviour, although extending over some days, was part of a "one off" plan, and given that it was not repeated in the period 2004 until his arrest in 2007, and given the good behaviour whilst on parole, it might be argued that the risk of the applicant reoffending is low. The concern of the tribunal is that the period of demonstrated good behaviour after release from gaol is not lengthy. The applicant, at the time of hearing, is still on parole and subject to the sanction of revocation of parole for any criminal behaviour. Whilst the risk of re-offending could be said to be low, the concern of the tribunal is the objective seriousness of the offences. Given the objective seriousness of the offences the tribunal considers, on the evidence in this matter, that there should be a reasonable period of demonstrated good behaviour by the applicant, after release from prison, to evidence rehabilitation and to thereby demonstrate that the risk of such serious offences re-occurring is indeed low.
When there is a grant of an authority under the Act, the decision maker is attesting to the fitness and propriety of the applicant for the authority, and to their repute. Standing in the shoes of the original decision maker on review the tribunal must be able to so attest. In determining this issue I have had regard to the cases/authorities discussed above in these reasons for decision. I have considered in particular the case of Murray which was a decision of the tribunal on review of the respondent's decision to refuse an authority to be the driver of a private hire vehicle. The applicant in that matter had a criminal conviction for an assault, in company of others, where injuries were sustained by the victim. The tribunal decided to set aside the decision of the respondent and grant an authority. Whilst the tribunal's decision at first instance was appealed to the Appeal Panel, the tribunal's findings at first instance were not disturbed on appeal. A reading of the decision indicates that the facts and evidence were quite different to the current matter. The criminal offence was a "one off" offence and alcohol intoxication was involved. There were found to be reasons for the alcohol intoxication on that occasion including grief at the death of friends. The evidence was that the applicant had shown significant remorse. Further there was significant evidence by way of testimonials as to the applicant's good repute prior to the offence in question. Further, there was testimonial evidence before the tribunal as to the applicant's good repute even after the commission of the offences.
The tribunal, at first instance in Murrays case, noted the evidence of remorse, and that the testimonial evidence was very persuasive that the applicant was not of a violent nature. The tribunal acknowledged that one single incidence of wrongdoing can affect a person's reputation, sometimes for life, but found that the applicant in the matter was of good repute on the testimonial evidence before the tribunal. The tribunal also considered the nature of the offence and on the evidence overall was satisfied that the tribunal could attest to the applicant's repute and fitness. By contrast, in the present matter, no significant evidence as to the applicant's good repute has been produced.
There is no evidence to indicate that the applicant was considered to be of good repute prior to the criminal offences which occurred in 2004, nor is there evidence indicating that he is currently of good repute notwithstanding the criminal offences. The references submitted in the present matter, from the employer and the parole officer, do not assist the applicant in establishing his good repute. The reference from the employer does not indicate that the employer knows the significant matters which put the applicant's reputation in issue - the employer makes no mention of the criminal offences and convictions. The evidence from the parole officer is evidence that the applicant has satisfactorily behaved whilst on parole but is not evidence of good repute. As noted in the authorities set out above in these reasons for decision, evidence of criminal convictions can be evidence of bad repute. The tribunal considers this is particularly so when one considers the facts involved in the current matter. The criminal convictions were for serious and frightening crimes - members of the public were detained in their own homes, which were broken into, and were detained at knifepoint. Further, there was a conspiracy by the applicant with the co-accused to deprive the owner of a business of his liberty to facilitate robbery at the business premises. These offences are objectively very serious, involving little regard for the well-being of others, involving violence, invasion of homes, deprivation of liberty and dishonesty (theft).
The tribunal, having regard to the relatively short period of good behaviour since the applicant's release on parole, and the lack of testimonial evidence of good repute, cannot be satisfied on the evidence presented in this matter, that the applicant is of good repute, having regard to the serious criminal convictions and the lack of evidence of good repute.
The tribunal is also not satisfied at the present time that the applicant is a fit and proper person to be authorised to drive a private hire vehicle. As detailed in the authorities set out above in these reasons for decision the tribunal must have regard to the public interest. . In the tribunal's view, the objective seriousness of the offences, involving a criminal plan and violence, is a significant matter, and the evidence, in the tribunal's view, should indicate that the risk of reoffending is low and that the public interest is protected. The grant of an authority is an indication by the decision maker that the person, so authorised, is a fit and proper person to be given responsibility for the wellbeing/safety of passengers as an authorised driver of a public passenger vehicle. The regulatory scheme requires the tribunal to attest to the applicant's fitness and propriety. The tribunal is unable to attest to these matters, given the seriousness of the criminal offences and the relatively short period of time of rehabilitation. The applicant's poor traffic record does not assist the applicant despite a recent period of incurring no traffic offences. The tribunal must consider whether the public would have confidence that the applicant would not reoffend. This is particularly significant in this matter given the objective seriousness of the criminal offences. The tribunal cannot be satisfied that the risk of reoffending is low given the relatively short period of time since the applicant has been released on parole. The tribunal considers, on the evidence in this particular matter, that to be satisfied that the risk of reoffending is low there would need to be evidence of a period of time where the applicant resides in the community with demonstrated good behaviour; there would need to be evidence of a reasonable period of rehabilitation. The tribunal is not satisfied at the current time, for the reasons discussed above, that the applicant is a fit and proper person to be authorised to drive a private hire vehicle.
In so finding the tribunal has considered the applicant's proper reasons for seeking to be authorised to drive a private hire vehicle: these include his wish to preserve his current employment, and to further his employment prospects and stability of employment. The tribunal accepts that the applicant is committed at this time to being in full-time employment, and to being a productive member of society. The tribunal also notes the difficulties for the applicant in re-establishing himself after a period of time in gaol, and that the grant of an authority would assist by promoting his employment. However, whilst ongoing employment would further the applicant's rehabilitation, this is not a reason for the grant of an authority. The legislation makes clear that the tribunal must be satisfied, given that an authority holder is responsible for passengers in his or her vehicle, that an applicant is a fit and proper person to be so authorised. For the reasons detailed above, according to the evidence in this matter and the law, the tribunal is unable to attest to the applicant's good repute and fitness and propriety, as is required for the grant of an authority.
The tribunal notes that after a further period of time of good behaviour in the community, the applicant may wish to reapply for an authority. Any such application will, of course, need to be considered on the basis of the evidence presented by the applicant at any such future date, and the applicable law. This tribunal considers that the applicant's period of good behaviour from 2004 to 2007, and prior to 2004 - in terms of lack of criminal convictions/record - could well be taken into account. The applicant's period of good behaviour whilst on parole to date, could also be considered. Any further length of time of good behaviour and rehabilitation by the applicant, could also be considered, as could any evidence presented by the applicant, at such a future date, as to the repute of the applicant. However, for reasons detailed above, at the present time, the tribunal is not satisfied that the applicant is of good repute, nor is the tribunal satisfied that the applicant is a fit and proper person.
For all the above reasons the tribunal is unable to attest that the applicant is of good repute, and is unable to attest that the applicant is a fit and proper person to be authorised to be the driver of a private hire vehicle. Accordingly, the correct and preferable to decision, on the evidence in this case and according to law, is that the decision under review be affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 21 February 2012
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