Kaikaty v Ministry of Transport

[2005] NSWADT 135

CITATION:	Kaikaty v Ministry of Transport [2005] NSWADT 135
DIVISION:	General Division
PARTIES:	APPLICANT Antwan Kaikaty RESPONDENT Ministry of Transport
FILE NUMBER:	043347
HEARING DATES:	23/03/2005, 4/04/2005
SUBMISSIONS CLOSED:	04/04/2005
DATE OF DECISION:	06/17/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Passenger Transport Act - private hire vehicle driver - grant of authority - Private hire vehicle driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Allen v Ministry of Transport [2004] NSWADT 69 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165. Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSW ADT 68
REPRESENTATION:	APPLICANT P Barham, barrister RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Ministry of Transport to refuse Mr Kaikaty’s application for an authority to be a private hire vehicle driver is affirmed

1 On 15 February 2002 Mr Kaikaty was working as a Taxi Driver and driving his taxi in the city. A passenger flagged down his taxi outside a nightclub in the city and asked him to drive her to her home in Neutral Bay. During the journey the passenger fell asleep. When she awoke the Taxi was stationary and Mr Kaikaty was sitting next to her. He had licked her face. Mr Kaikaty had also removed the passenger's mobile phone, sunglasses and a $50 note from her handbag. He had also unlawfully swiped her Amex card three times through his cab charge machine. The passenger did not authorize these transactions.

2 Mr. Kaikaty was charged and pleaded guilty to the following offences:

- assault with act of indecency (in respect of the licking);

- larceny (in respect of stealing the mobile phone, currency and sunglasses);

- disposal of stolen property (in respect of the mobile phone);

- goods in custody (in respect of the mobile phone); and

- make false instrument (in respect of the cab charge dockets).

3 On 15 October 2002 the Local Court at North Sydney imposed sentences on Mr Kaikaty in relation to each charge. In relation to the assault he received a sentence of imprisonment for 12 months however this was suspended on the basis that he be of good behaviour for 12 months. In relation to the stealing he received a bond to be of good behaviour for 3 years, with supervision by the Probation and Parole Service. He was also fined, and ordered to pay compensation to the Victim and Court costs. On 14 November 2002 the Director General cancelled Mr Kaikaty’s driver authority.

4 Mr Kaikaty has again applied for an authority to be a private hire vehicle driver. An authority to drive private hire vehicles is issued under section 40 of the Passenger Transport Act 1990 (“the Act”). Section 40(3) of the Act provides that the purpose of an authority is to attest 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. It also attests that the person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle in accordance with the conditions under which the private hire vehicle service concerned is operated, and in accordance with law and custom.

5 A delegate of the Director General of the Ministry of Transport refused Mr Kaikaty’s application and that refusal was affirmed on an internal review. Mr Kaikaty has applied to this Tribunal for a review of the refusal. The Tribunal has power to review the decision pursuant to section 38 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) and section 52 of the Act. The Powers of the Tribunal are set out in section 63 of the ADT Act.

6 Mr Wozniak’s argument is essentially that Mr Kaikaty is not of good repute and is not a fit and proper person to hold the authority he seeks.

Is Mr Kaikaty a person of Good Repute?

7 With respect to the issue of Mr Kaikaty's reputation Mr Wozniak’s argument is similar to that presented in the reasons provided in relation to the internal review.

8 In considering whether to grant Mr Kaikaty’s application the internal reviewer, Mr Riley, had regard to whether Mr Kaikaty is of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle. Mr Riley observed that the convictions recorded against Mr Kaikaty arose from his activity as an authorised taxi cab driver and concluded that the facts of the offences are of such seriousness that they go to the very heart of the relationship of trust between an authorised driver and a member of the travelling public.

9 In the absence of testimonials or other references attesting to Mr Kaikaty's character, Mr Riley concluded that the community, being aware of all the material available to him, would continue to hold Mr Kaikaty in low repute.

10 The concept of "reputation" was discussed by Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393, where His Honour said:

"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.”

11 I note that Mr Kaikaty has provided testimonials to demonstrate that he is of good repute. Each of the authors of those testimonials stated that they are aware of the incident on 15 February 2002 involving Mr Kaikaty and that they believe that his actions at that particular time were completely out of character.

12 Mr Barham conceded that Mr Kaikaty's reputation could never return to what it was. The stain is there for all time. However, he submits that three years have passed since the commission of the offences. In light of the testimonials and given the length of time that is passed since the offences were committed, it can no longer be said that Mr Kaikaty is not of good repute.

Finding as to good repute

13 I agree with Mr Barham’s argument. In the circumstances I am prepared to accept that Mr Kaikaty is generally regarded as being of good repute.

Is Mr Kaikaty a fit and proper person to hold the authority?

14 As Mr Riley would not attest to Mr Kaikaty being a person of good repute he did not consider whether he is a 'fit and proper person' or whether he satisfies the other matters specified in section 40(3) of the Act. Mr Wozniak contends that it is too early to attest that Mr Kaikaty is a fit and proper person to hold the authority. He submits that while Mr Kaikaty has completed his period of supervision with the Probation and Parole Service his bond to be of good behaviour does not expire until 15 October 2005. The Tribunal should not allow the grant of the authority prior to that date.

15 Mr Wozniak also contends that Mr Kaikaty has been unable to provide any explanation for his conduct on 15 February 2002 and therefore the Tribunal could not be satisfied that similar conduct would not occur in the future. In his affidavit Mr Kaikaty stated:

“I do not know why I committed those offences. I was suffering stress at the time in relation to my wife who was suffering from a mental illness known as schizophrenia, and I was looking after my wife with my two teenage sons.”

16 Mr Wozniak submits that Mr Kaikaty’s circumstances have not improved and therefore he remains subject to the stresses he experienced in February 2002.

17 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said 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."

18 Mr Barham submits that the correct approach to determining the issue of fitness and propriety is that adopted by Deputy President Hennessy in Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17]. The Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows:

“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.”

19 Mr Barham further submits that the Tribunal should apply those factors to the present case. I agree with that submission. Accordingly, I will consider each separately.

The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted

20 Mr Kaikaty's offences occurred on 15 February 2002. It is undeniable that the offences were serious. Mr Kaikaty does not seek to excuse himself in relation to those offences but he has set out some factors in mitigation. There is no suggestion that he has committed any other offences of relevance to these proceedings, save for traffic infringements. Mr Barham submits that the offences were a one off aberration in Mr Kaikaty's conduct and character. He further submits that the length of time that has passed since the offences were committed must be weighed against the nature and seriousness of the offences.

The nature, seriousness and frequency of any complaints made against Mr Kaikaty

21 There is no evidence of complaints against Mr Kaikaty other than that in relation to the events of 15 February 2002. It appears that with the exception of the events of 15 February 2002, and traffic infringements, Mr Kaikaty had a clean slate over the length of time he held an authority.

Mr Kaikaty's driving record

22 Mr Kaikaty's driving record is by no means an impeccable one. However, Mr Barham submits that in the circumstances of a 20 year driving history Mr Kaikaty's record is reasonable and that taken on its own would not disqualify him from obtaining the authorisation he seeks.

Mr Kaikaty's reputation in the community

23 The assessment of character in the context of a licensing scheme must have regard to the nature of the licensed occupation and its objectives. One of the objectives in section 4 of the Act is to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. There is a public interest in ensuring that those who have the care and control of passengers using public transport can be trusted not to behave in an inappropriate way.

24 The character references tendered on behalf of Mr Kaikaty indicate that his conduct on 15 February 2002 was aberrant. Mr Barham submits that while Mr Kaikaty's reputation is tarnished, that does not mean that Mr Kaikaty is not any longer of good reputation. He submits that Mr Kaikaty has demonstrated his willingness to attempt to rescue his reputation by acknowledging his guilt, pleading guilty at the first instance, apologising to the victim, paying fines and court costs and compensating the victim. He has attended and passed a medical examination with a view to resuming gainful employment in the passenger industry and has behaved generally in a proper fashion in accordance with the good reputation of a right-thinking person of the community.

25 As I have indicated above, I am prepared to accept that Mr Kaikaty is generally regarded as being of good repute.

The likelihood that Mr Kaikaty will re-offend, be the subject of further complaints or commit further traffic offences

26 Mr Barham submits that the existence of the bond conditions provides some kind of insurance for Mr Kaikaty's continued good conduct. He contends that it is not otherwise to the point that Mr Kaikaty's bond conditions remain extant. He further contends that the magistrate's imposition of a non-custodial sentence was warranted and this indicates acceptance of the likelihood that Mr Kaikaty would continue to be of good behaviour. It is submitted that the likelihood of Mr Kaikaty re-offending or being the subject of further complaints is remote. Nevertheless it is conceded that given the length of time that private hire vehicles are on the road, and given human frailty, it is likely that at some stage in the future Mr Kaikaty will commit a further driving offence of some sort. However it is submitted that Mr Kaikaty is likely to be much more careful than he has been previously and he is much less likely to commit any further traffic offence.

Other considerations

27 Section 40 of the Act also requires Mr Kaikaty to have sufficient responsibility and aptitude to drive a private hire vehicle. The Ministry does not take issue with this factor other than to the extent that Mr Kaikaty's offences reflect on his level of responsibility.

28 Two psychological reports are in evidence before the Tribunal. The first of these is a 'Risk and Management Assessment summary' prepared on 29 April 2003 by Mr Craig Baird, a Psychologist with the Forensic Psychology Services of the Department of Corrective Services. Mr Baird’s report is addressed to Mr Don Sheridan, Probation and Parole Officer, Liverpool District Office. The second is a psychiatric opinion prepared on 8 March 2005 by Dr Andrew McClure, Consultant Psychiatrist.

29 Mr Baird’s assessment placed Mr Kaikaty in a medium-low risk category and concluded that Mr Kaikaty would probably benefit from participating in a short duration sex offender treatment program. However the assessment also stated that:

“current methods of assessing risk of re-offending do not provide information about an individual's likelihood of being re-convicted for a sex offence. They only locate an individual in a category of which the re-conviction rate is known. There is currently no known method of assessing an individual's likelihood of re-offending sexually, however knowing the re-conviction rate of the category to which he belongs can greatly facilitate decision making.”

30 Dr McClure concluded:

“In my view, the probability of Mr Kaikaty re-offending is low, because the specific circumstances prevailing at the time of the original offences, are unlikely to recur. Further, he gives a convincing account of having 'changed' his attitudes.

Thus, in summary, Mr Kaikaty does not suffer any psychiatric condition which would prevent him from carrying out his duties as a hire car driver… currently I would see the risk of any untoward inappropriate criminal behaviour on Mr Kaikaty's part as being very low.”

31 Mr Barham urges the Tribunal to give weight to Mr Kaikaty's expressed remorse. He also refers to authorities that demonstrate that even a taxi driver who has been involved in deceitful conduct or violent conduct may subsequently be found nonetheless to be a fit and proper person and a person of good repute. In particular he refers to decisions in Allen v Ministry of Transport [2004] NSWADT 69 and Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165. In Allen the applicant, a taxi-driver, had been convicted of assault on another taxi-driver at a taxi rank and was placed on a good behaviour bond for 12 months. The bond had not expired at the time of the Tribunal’s determination that the decision to cancel Mr Allen’s authorities should be set aside.

32 In Maythisathit the President of the ACT Administrative Appeals Tribunal set aside a decision to refuse the applicant a licence to drive a taxi. The refusal was based on the fact that the applicant had a number of convictions for offences involving dishonesty. The offences were linked to a gambling addiction, for which the applicant had undergone counselling.

33 Mr Barham argues that in light of the fact that the victim of Mr Kaikaty in this matter did not suffer permanent injury and in light of the comparatively petty and isolated nature of the dishonesty offences in this matter compared to those in Maythisathit, Mr Kaikaty's conduct falls significantly above that of the drivers in the Allen and Maythisathit matters. He further argues that a long time has passed since the offences were committed and that the Tribunal and the travelling public can have every confidence that Mr Kaikaty is rehabilitated, is a fit and proper person and is of good repute sufficient to enable him to be issued with a private hire vehicle driver authority.

Finding as to fitness and propriety

34 In this application, there does not appear to be any question that Mr Kaikaty's conduct on 15 February 2002, although serious, was an isolated incident. Nevertheless it is highly significant that the conduct occurred in the regulated activity. I agree with the Ministry’s position that the offences are of such seriousness that they go to the very heart of the relationship of trust between Mr Kaikaty and a member of the travelling public. It is also significant that there is no explanation for the conduct. From the material before me, it is apparent that Mr Kaikaty regrets what he has done but he has not taken any steps to address the factors that lead to the conduct. I appreciate that this is somewhat difficult given his lack of understanding of those factors, however there is little to suggest that he has made any efforts to explore that lack of understanding in an effort to address the issues. His efforts appear to be limited to reflecting extensively on his behaviour. I note Mr Baird’s view that Mr Kaikaty would probably benefit from participating in a short duration sex offender treatment program. There is nothing to suggest that Mr Kaikaty has acted on this suggestion.

35 Mr Kaikaty was under some 'stress' at the time of the offences. It is appropriate that some consideration be given to Mr Kaikaty's circumstances as they prevailed at February 2002 and to compare those that prevailed at the time of hearing. In this regard I agree with Mr Wozniak that there has been no appreciable improvement in Mr Kaikaty's circumstances. In fact his financial circumstances have deteriorated due to his lack of employment. Mr Kaikaty's wife remains ill and his children are older but still dependent on him. He suggests that his marital relationship has improved, however this appears to have been only one of several factors that were causing him stress in February 2002.

36 In imposing a non-custodial sentence on Mr Kaikaty, the Court imposed a requirement of supervision by the Probation and Parole Service. It appears that Mr Kaikaty has complied with this order and the Probation and Parole Service terminated the supervision some time ago. The Court also imposed a 3-year good behaviour bond in relation to the thefts. That bond does not expire until October 2005. While it is by no means conclusive, in my view the fact that the bond has not expired is a factor that can be taken into account in these proceedings.

37 In Maythisathit the President of the ACT Administrative Appeals Tribunal put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing this way:

"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 the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi."

38 In the present circumstances that test can be applied appropriately with the relevant member of the public travelling in a hire car driven by Mr. Kaikaty. On balance, it is my opinion that a member of the public, knowing Mr Kaikaty's criminal record and what he has done to rehabilitate himself, would still object to Mr. Kaikaty being the hire car driver.

39 Having weighed the evidence, I am not satisfied that sufficient time has passed for the travelling public to be comfortable with Mr. Kaikaty as a hire car driver. I am unable to provide any further guidance as to what period of time might be considered to be sufficient for a member of the public to be comfortable with Mr. Kaikaty as a hire car driver, however in the absence of other relevant material I would suggest that a minimum period would be that remaining of the good behaviour bond.

Order

The decision of the Ministry of Transport to refuse Mr Kaikaty’s application for an authority to be a private hire vehicle driver is affirmed.