KAMOS and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
[2008] WASAT 237
•10 OCTOBER 2008
KAMOS and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2008] WASAT 237
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 237 | |
| ROAD TRAFFIC ACT 1974 (WA) | |||
| Case No: | CC:720/2008 | 26 SEPTEMBER 2008 | |
| Coram: | MS J HAWKINS (MEMBER) | 10/10/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SAMAD HUSSAINI KAMOS DEPARTMENT FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Review of decision to cancel extension T endorsed drivers licence (taxi drivers licence) Prior criminal convictions Lack of remorse Recency of conviction Not of good character Application dismissed |
Legislation: | Criminal Code (WA) Road Traffic Act 1974 (WA), s 48(1), s 48(4) Road Traffic (Authorisation to Drive) Regulations 2008 (WA), Reg 12(7), Reg 25, Reg 28(4), Reg 41, Reg 41(1) State Administrative Tribunal Act 2004 (WA), Div 3, Pt 4, s 27(2), s 32(2) |
Case References: | Al Edany and Department of Planning and Infrastructure [2005] WASAT 165 Arfat and Department for Planning and Infrastructure [2008] WASAT 43 Doyle and Department for Planning and Infrastructure [2008] WASAT 157 Karami v Department of Planning of Infrastructure [2006] WASAT 166 Kioa v West (1985) 159 CLR 550 Tavelli v Johnson (Unreported; WASC, Library No 960693, 25 November 1996) |
Orders | For the reasons expressed above, I therefore consider that the applicant is not a person of good character. I therefore order as follows:,1. That the decision of the respondent to cancel the applicant's extension T endorsed licence is affirmed.,2. The application is dismissed. |
Summary | The extension to the applicant's driver's licence endorsement permitting him to drive taxis was cancelled on the basis of convictions for two separate offences, one of common assault against a female and one of indecent assault against a female. The applicant was convicted of these offences in December 2007. The applicant sought review in the Tribunal.,The Tribunal referred to recent legislative amendment to the scheme regulating the licensing of drivers which affected changes to the cancellation of the applicant's extension T endorsement which permitted him to drive taxis. Determination of this matter involved considering whether the applicant was a person of good character given these convictions. The Tribunal concluded that the convictions adversely affected the assessment of the applicant's character and concluded that the applicant was not of good character. The Tribunal concluded, therefore, that the cancellation of the applicant's extension T endorsement should remain. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : ROAD TRAFFIC ACT 1974 (WA) CITATION : KAMOS and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2008] WASAT 237 MEMBER : MS J HAWKINS (MEMBER) HEARD : 26 SEPTEMBER 2008 DELIVERED : 10 OCTOBER 2008 FILE NO/S : CC 720 of 2008 BETWEEN : SAMAD HUSSAINI KAMOS
- Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Review of decision to cancel extension T endorsed drivers licence (taxi drivers licence) - Prior criminal convictions - Lack of remorse - Recency of conviction - Not of good character - Application dismissed
Legislation:
Criminal Code (WA)
Road Traffic Act 1974 (WA), s 48(1), s 48(4)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), Reg 12(7), Reg 25, Reg 28(4), Reg 41, Reg 41(1)
State Administrative Tribunal Act 2004 (WA), Div 3, Pt 4, s 27(2), s 32(2)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr N Fox (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Al Edany and Department of Planning and Infrastructure [2005] WASAT 165
Arfat and Department for Planning and Infrastructure [2008] WASAT 43
Doyle and Department for Planning and Infrastructure [2008] WASAT 157
Karami v Department of Planning of Infrastructure [2006] WASAT 166
Kioa v West (1985) 159 CLR 550
Tavelli v Johnson (Unreported; WASC, Library No 960693, 25 November 1996)
(Page 3)
Summary of Tribunal's decision
1 The extension to the applicant's driver's licence endorsement permitting him to drive taxis was cancelled on the basis of convictions for two separate offences, one of common assault against a female and one of indecent assault against a female. The applicant was convicted of these offences in December 2007. The applicant sought review in the Tribunal.
2 The Tribunal referred to recent legislative amendment to the scheme regulating the licensing of drivers which affected changes to the cancellation of the applicant's extension T endorsement which permitted him to drive taxis. Determination of this matter involved considering whether the applicant was a person of good character given these convictions. The Tribunal concluded that the convictions adversely affected the assessment of the applicant's character and concluded that the applicant was not of good character. The Tribunal concluded, therefore, that the cancellation of the applicant's extension T endorsement should remain.
Introduction change of statutory scheme
3 The applicant sought review under s 48(4) of the Road Traffic Act 1974 (WA) (RT Act) of a decision of the respondent made on the 24 April 2008 to cancel his driver's licence extension T endorsement permitting him to drive a taxi (the decision). The decision was based on the applicant having been convicted in December 2007 of common assault and indecent assault and consequently not being considered 'of good character'.
4 The application was filed on 13 May 2008. On 1 July 2008, the scheme for licensing of drivers was removed from the RT Act and came under the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (ATD Regulations). The ATD Regulations set out the licensing scheme and the ability to seek review to the State Administrative Tribunal (Tribunal).
5 The matter before the Tribunal is a de novo review. Accordingly, it is necessary to have regard to the provisions of the ATD Regulations.
6 The decision was made by a delegate of the Director General of the Department for Planning and Infrastructure. It was made under the former s 48(1) of the RT Act, on the ground appearing as subparagraph (a) of that subsection,
(Page 4)
- that the applicant, 'is not of good character'.
7 Under the ATD Regulations, the renamed 'extension T' may be endorsed on a motor driver's licence if the Director General is satisfied that, amongst other things, an applicant is of good character: reg 12(7) of the ATD Regulations. Under the ATD Regulations, the cancellation of any authorisation under a licence, such as that provided by an extension T endorsement, is regarded as a variation of the licence. By reg 28(4) of the ATD Regulations, before such a variation can occur, the Director General must have regard to the principles applying to the cancellation or suspension of a driver's licence, those principles appearing in reg 41 of the ATD Regulations. The relevant part of reg 41(1) states:
(1) The Director General may, by notice in writing given to the licence holder
(a) suspend a person’s driver’s licence if the Director General has reason to suspect that there are grounds on which the Director General could, if then considering whether to grant the driver’s licence, refuse under regulation 25 to grant it; or
(b) suspend or cancel a person’s driver’s licence if
(i) the Director General has reason to believe that there are grounds on which the Director General could, if then considering whether to grant the driver’s licence, refuse under regulation 25 to grant it; or
(ii) the Director General is no longer satisfied of each of the matters referred to in regulation 24.
The Director General may refuse to grant a driver’s licence to a person if the Director General has reason to believe that the person
(a) is not of good character; or …
Reason for the decision and the issue for determination
9 The decision to cancel the applicant's extension T endorsement was based on the applicant's criminal convictions on 21 December 2007 for indecent assault and common assault under the Criminal Code (WA).The applicant had no other criminal convictions.
(Page 5)
10 The issue for the Tribunal is whether, on the basis of these convictions, the Tribunal has reason to believe that the applicant is not of good character and that his extension T endorsement (or taxi drivers licence) should be refused under reg 12(7) of the ATD Regulations, had the applicant now been applying for it.
Relevance of convictions and their circumstances to the requirement of good character
11 The relevance of prior criminal convictions in assessing whether a person is of good character has been discussed in the decision of Doyle and Department for Planning and Infrastructure [2008] WASAT 157. In that decision Member Carey stated as follows:
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.
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:
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.
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:
(Page 6)
- (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.
Circumstances of the applicant's convictions
12 The applicant is 37 years old.
13 He did not plead guilty to the offences for which he was charged. The offences related to two separate incidents against female real estate agents.
14 The statements of material facts in relation to the offences were filed by the respondent. They indicate that in respect to the offence of indecent assault, the applicant attended a home open and, whilst being shown the property by a female real estate agent, the applicant grabbed the agent from behind, pulled her towards him and touched her breasts with both hands. In relation to the common assault which occurred on another occasion, the statement of material facts indicates that the applicant attended another home open, where a female real estate agent was present. The applicant without warning is alleged to have put his hands on her back, pulled her towards him and then attempted to kiss her on the mouth.
15 Throughout the proceedings in the Magistrates Court the applicant maintained that he was not guilty. As a result of pleading not guilty to the charges, the charges were heard and determined at trial. Following the trial, the
(Page 7)
- applicant was found guilty and fined $500 in respect to the conviction for common assault and $1,500 in respect to the conviction for indecent assault. Throughout the proceedings in the Magistrates Court the applicant was legally represented.
16 A transcript of the sentencing was provided by the respondent. That transcript reveals that due to the applicant denying the offending and showing no remorse, alternative sentences, such as community based orders, were not available to her Honour Magistrate Lane. Her Honour considered the only alternative was to impose fines upon the applicant.
Applicant's evidence
17 At the hearing of this matter the applicant was not legally represented. He was assisted throughout the hearing by an interpreter.
18 During the hearing he maintained he had not committed the offences for which he was convicted.
19 As a result, he indicated he could not have any remorse in respect to something he considered he had not done. He stated that despite continuing to deny the offences he had not appealed the decision as he was unable to afford to do so.
20 Rather, he sought to explain how important his job as a taxi driver was to him. He also referred to the positive reference he had received from Swan Taxis and stated that there had not been one complaint made about his conduct during his employment with Swan Taxis as a taxi driver.
21 He also relied on other positive character references from friends and work colleagues.
22 He explained that he was a positive person who was striving in a new country to better himself and his family.
23 The applicant did not call any witnesses to give evidence at the hearing in his support. This was despite having been granted an adjournment to avail himself of the opportunity to do so. He indicated that he had given the matter a lot of thought and was not prepared to tell his friends or family of his current predicament as he considered it would affect the way they would perceive him in his community.
24 The applicant did provide several written character references in support of his application. As indicated above, one was from Swan Taxis, dated 3 March 2008. This stated that the applicant had worked for Swan Taxis on a
(Page 8)
- parttime basis since January 2007, working mainly Friday and Saturday nights. It goes on to state that the applicant had not received any customer complaints against him during this time.
25 In addition, three supportive character references were provided by the applicant from friends and work colleagues.
26 It is important to note at this point that none of these referees indicated that they were aware of the applicant's convictions. Further, the applicant conceded, in questioning by counsel for the respondent, that he had not told any of the referees of his convictions, as he was too ashamed to do so.
27 Finally, the applicant made reference to medical problems he suffers which makes taxi driving the best option for him. He also referred to the financial hardship he will suffer if he is unable to work as a taxi driver.
Consideration
28 The matter comes within the review jurisdiction of the Tribunal which is the subject of Div 3 of Pt 4 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review (s 27(2) of the SAT Act).
29 In determining the matter, the Tribunal is able to consider all credible, relevant and significant information: see Kioa v West(1985) 159 CLR 550. Under s 32(2) of the SAT Act, the Tribunal is not bound to consider only evidence that conforms with the rules of evidence and is able to inform itself as it sees fit.
30 The discretion of the Tribunal, when standing in the shoes of the decisionmaker, in this case the Director General, was aptly explained in the decision of Karami v Department of Planning of Infrastructure [2006] WASAT 166 at [12] where it was sated as follows:
The Director General has obligations as the regulatory body charged with the administration and licensing of road traffic. Those obligations extend to the licensing of taxi drivers. In a case such as this concerning whether or not the applicant is of good character, the exercise of the discretion will always involve questions of judgment as to when the circumstances giving rise to the assessment that someone is not of good character are sufficiently grave to justify the serious step of cancelling a taxi endorsement … As explained in Al Edany and Department of Planning and Infrastructure [2005] WASAT 165 at [37] [38], 'good character', as it is to be understood in relation to s 48(1)(a), is to be adapted according to context. In the case of a 'T' class
(Page 9)
- 'T' class endorsement, the Director General should exercise his powers in such a manner that the interest of members of the public who might want to use taxis will be safeguarded …
31 I must therefore be satisfied that, despite the applicant's convictions, he remains of good character to warrant the retention of his extension T endorsed licence (or taxi drivers licence). As explained previously, in determining such matters the factors referred to in Tavelliv Johnson(Unreported; WASC, Library No 960693, 25 November 1996) are relevant. In this case the applicant's convictions are relatively recent, only dating back to December 2007.
32 Further, although they did not occur during the course of carrying out his duties as a taxi driver, they included a conviction of indecent assault which is by its very nature a serious offence. The penalty imposed upon the applicant reflected the seriousness of this offence.
33 In addition and more importantly, however, is the lack of remorse, contrition or insight shown by the applicant in respect to these convictions. The applicant has continued to deny both in these proceedings but also in the Magistrates Court, that he committed the offences. Despite this, he has offered up no evidence, apart from his say so, to support this denial.
34 As to his character generally, although the references provided by the applicant were supportive in nature, I afford them no weight, as they were not given by those referees in the full knowledge of these proceedings or in the knowledge of the applicant's convictions. This was despite the applicant being given the opportunity of an adjournment to rectify this situation. Despite being given that opportunity he chose not to tell his chosen referees of these proceedings or his convictions.
35 Despite the applicant's denial of these offences, I am not able to go behind them and must accept that, after being afforded a hearing in respect to the charges during which he was legally represented, he was found guilty of the offences. Further, and in any event, the applicant offered up no evidence to establish why the convictions were not sustainable.
36 Given the above findings, I consider at this time that the applicant is not a person of good character.
(Page 10)
37 Finally, the applicant did raise issues of hardship in respect to not being able to carry out the work of a taxi driver. However, as has been found previously in this Tribunal, issues of hardship or inconvenience are not relevant factors that can be relied upon in matters such as these; see Al Edany and Department of Planning and Infrastructure [2005] WASAT 165: Arfat and Department for Planning and Infrastructure [2008] WASAT 43
Orders
38 For the reasons expressed above, I therefore consider that the applicant is not a person of good character. I therefore order as follows:
1. That the decision of the respondent to cancel the applicant's extension T endorsed licence is affirmed.
2. The application is dismissed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER
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