KARAMI and DEPARTMENT OF PLANNING AND INFRASTRUCTURE
[2006] WASAT 166
•23 JUNE 2006
KARAMI and DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2006] WASAT 166
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 166 | |
| ROAD TRAFFIC ACT 1974 (WA) | |||
| Case No: | CC:456/2006 | 24 MAY 2006 | |
| Coram: | MR T CAREY (MEMBER) | 23/06/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | 1. Application refused 2. Decision affirmed | ||
| B | |||
| PDF Version |
| Parties: | SIAVASH KARAMI DEPARTMENT OF PLANNING AND INFRASTRUCTURE |
Catchwords: | Administrative law – Road traffic – Review of cancellation of taxi endorsement on driver's licence – Cancellation based on conviction for stalking – Whether cancellation correct and preferable decision |
Legislation: | Criminal Code Act 1913 (WA), s 338E(1), s 338E(2) Road Traffic Act 1974 (WA), s 48(1), s 48(1)(a), s 48(4) Sentencing Act 1995 (WA), s 39(2) |
Case References: | Al Edany and Department of Planning and Infrastructure [2005] WASAT 165 Nil |
Orders | On the application determined by Member Tim Carey on 23 June 2006, it is ordered that:,1. The application is refused.,2. The decision of the respondent's delegate of 27 February 2006 to cancel the applicant's driver's licence endorsement class "T" is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : ROAD TRAFFIC ACT 1974 (WA) CITATION : KARAMI and DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2006] WASAT 166 MEMBER : MR T CAREY (MEMBER) HEARD : 24 MAY 2006 DELIVERED : 23 JUNE 2006 FILE NO/S : CC 456 of 2006 BETWEEN : SIAVASH KARAMI
- Applicant
AND
DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Administrative law – Road traffic – Review of cancellation of taxi endorsement on driver's licence – Cancellation based on conviction for stalking – Whether cancellation correct and preferable decision
Legislation:
Criminal Code Act 1913 (WA), s 338E(1), s 338E(2)
Road Traffic Act 1974 (WA), s 48(1), s 48(1)(a), s 48(4)
Sentencing Act 1995 (WA), s 39(2)
(Page 2)
Result:
1. Application refused
2. Decision affirmed
Category: B
Representation:
Counsel:
Applicant : Mr A Monisse
Respondent : Mr N Fox
Solicitors:
Applicant : Gunning Young
Respondent : Department of Planning and Infrastructure
Case(s) referred to in decision(s):
Al Edany and Department of Planning and Infrastructure [2005] WASAT 165
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant's drivers licence taxi endorsement was cancelled by reason of his December 2005 conviction for stalking. He applied to have the cancellation overturned on a number of grounds, including that the offence involved a person known to him and not a customer of his taxi, that the offence was limited to incidents which occurred within a limited period and that the offence was an aberration which would not be repeated.
2 The Tribunal analysed the various grounds by reference to relevant parts of the reasons of the Magistrate for convicting the applicant. It noted that the Magistrate found the applicant engaged in obsessive behaviour with respect to the complainant. Further, the Tribunal found that in relation to at least one of the incidents complained of, the applicant had used his taxi to follow the complainant. It concluded that it would be a matter of concern to the public if the applicant were to have his taxi endorsement returned so soon after his conviction and that the decision to cancel the endorsement was the correct and preferable decision and should be affirmed.
Introduction
3 The applicant seeks review under s 48(4) of the Road Traffic Act 1974 (WA) (the Act) of a decision of the respondent made on 27 February 2006 and notified on 1 March 2006 to cancel the applicant's driver's licence endorsement class "T".
4 The decision was made by Mr Gilbert Tyack in his capacity as acting manager, Central Customer Services with the respondent. It was made under s 48(1) of the Act, on the ground appearing as par (a) of that subsection that the applicant "is not of good character". It is common ground that the decision was made solely on the basis of the applicant's conviction on 8 December 2005 on a charge of intimidation of a female person, commonly referred to as "stalking".
5 Based on the written and oral submissions of the parties, the following issues emerged:
a) The significance of the personal nature of the offence, which concerned conduct towards a person known to the applicant;
(Page 4)
- b) Whether the offence involved the use of the applicant's taxi;
c) The duration of the offence; and
d) Whether the applicant should continue to be penalised for the offence by cancellation of his taxi endorsement.
Personal nature of conviction
6 A preliminary issue arose in the hearing as to the respondent's entitlement to rely upon a document commonly referred to as a "statement of material facts", relating to the facts in question prepared by the police or prosecuting authority when the applicant pleaded not guilty, did not admit the full contents of the statement and the Magistrate's findings were at least in some respects at variance with its contents. The applicant provided a transcript of the oral reasons delivered by the Magistrate in the Magistrate's Court at Fremantle on 8 December 2005. For the purpose of deciding this application, it is possible to limit myself to matters referred to by his Worship as they appear in the transcript, and I do adopt this course. In doing so, I must have regard to those parts of his Worship's reasons which are disparaging of the applicant or cast doubt on his character, as well as parts which tend to support the applicant's arguments before the Tribunal. This is particularly appropriate as the applicant, who was legally represented, elected not to give evidence to explain or shed any further light on the events which resulted in his stalking charge.
7 In relation to the first identified issue, the applicant submitted that the charge concerned a personal matter, as distinct from a work issue, for example, arising from a complaint made by a taxi passenger. The conviction did not involve, for example, the assault of a passenger, but rather, concerned certain conduct between the applicant and a person with whom he was acquainted. It was claimed that the applicant knows the boundaries which apply to the operation of a taxi and that there was no issue in terms of his relationship with fee paying members of the public.
8 It is necessary at this point to refer to some of the findings of the Magistrate in reaching the decision his decision. The reasons refer to three discrete incidents relied upon by the prosecution – the first, which was alleged to have occurred late one evening in early January 2004 at a kebab shop in Scarborough, the second on 11 January 2004 at about 3.00 am at the complainant's dwelling house, and the third on 11 March 2004 at a bar at which the complainant worked.
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9 The first incident is dealt with in the reasons only briefly. After referring to a conflict in the evidence as to what occurred, and without making any finding on that conflict, his Worship commented that there appeared to have been some sort of emotional encounter in the car park, and accepted the prosecution's submission that this was an indication of what was to come.
10 The second incident was the subject of findings of disputed fact. The Magistrate accepted, over the applicant's denial, the complainant's allegation that he went to her residence in Scarborough at about 3.00 am, spoke to her from outside her bedroom window, and asked her to let him in or he would shout and yell and wake up all the neighbours. She rang the police, who, it would seem, attended quite quickly. At a time when the complainant was speaking with the constable, her phone rang, and she gave the phone to the police officer. The officer gave evidence that the man who was ringing had an accent, and his Worship accepted the man to be the applicant.
11 The third incident, which again was denied by the applicant, involved a number of visits by the applicant to the bar where the complainant worked. On my reading of the transcript, the Magistrate accepted evidence that the applicant had come into the bar twice or three times to attempt to speak with the complainant and he was ejected on those occasions. Subsequently, at the end of her shift, as the complainant walked accompanied by another employee to her car, the applicant appeared in the car park and an altercation broke out. Two aspects of this episode the Magistrate found significant. The first was that the applicant questioned whether the complainant's escort was her boyfriend, thus raising the issue of the identity of her boyfriend, if any, which was a theme running through all three incidents. The second aspect was that an account provided by the applicant of how he came to be at the bar in the early hours of the morning struck his Worship as "ridiculous". To the contrary, he found other evidence of the applicant added weight to the case of the prosecution that he had been following the complainant around and obsessing over her activities.
12 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
(Page 6)
- taxi endorsement. The question that the Tribunal, standing in the shoes of the Director General, needs to consider is the relevance of the Magistrate's findings to the issue of the applicant's character in the context of his suitability as a taxi endorsement holder. 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 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. It would be legitimate, in the exercise of those powers, for the Director General, and the Tribunal on review, to consider whether a paying passenger of a taxi driver would be concerned to know that the driver had a recent conviction for stalking and the circumstances of the conviction as found by the Magistrate. I have come to the view that paying passengers would be concerned about that.
13 The submission that the conviction concerned a purely personal matter and that the applicant "knows his boundaries" is, in my view, to be properly regarded as an attempt to diminish the seriousness of the conviction. Stalking is a serious matter, and a conviction for stalking signals a significant behavioural flaw in relation to the convicted person's relationships with another person. Despite assertions to the contrary, there is simply no basis to say, at least at this time, some six months after the conviction, that the conduct as found would not recur with a passenger, perhaps one whom the applicant had come to know better through more frequent provision of services, nor that the applicant had learned from his lesson. This is particularly so where the charges were defended, at least in part, on the basis of denials of factual matters, those denials being rejected and, in one instance, described as "ridiculous". Such conduct is not consistent with genuine remorse on the applicant's part, and, as I have said, the applicant did not give evidence at the hearing, which would have provided an opportunity to express his remorse and intentions for the future.
14 Counsel for the applicant submitted that by reason of the offence with which the applicant was charged (under s 338E(2) Criminal Code, rather than s 338E(1)), the offence was of a less serious nature. Further, the imposition of a fine was towards the bottom of the "sentencing ladder" in s 39(2) Sentencing Act 1995 (WA), and the fine in this case was one sixth of the maximum fine. The sentencing comments of his Worship were not part of the transcript that was provided, which, had they been, may or may not have provided support for these submissions or may have given a better understanding of what factors were taken into account in
(Page 7)
- the sentencing. However, at the end of the day, once it is concluded, as I have done, that particular conduct does have relevance to the question of whether or not the applicant is a person of good character for the purposes of the statutory provision, it is the fact of the conviction and the proven circumstances of the offence which are of primary significance.
Use of the applicant's taxi in the offence
15 In the respondent's Statement of Issues, Facts and Contentions, it was asserted that "several of the elements of the charge involved the use of the registered taxi and occurred whilst Mr Karami was driving this vehicle". The applicant submitted that the Magistrate's findings involved no such use by the applicant of his taxi.
16 The reasons are unclear as to whether his Worship did find that a taxi was used or involved in some way in any incident. In relation to the incident at the bar, before rejecting the applicant's claimed reason for being there at all, his Worship stated that "I can accept that he might have had to have taken the taxi back to Bayswater and I can accept that in driving his own car from Bayswater towards Wembley or Scarborough … he may well have been somewhere in the vicinity of the top end of Beaufort Street", being the vicinity of the bar. However, in relation to the incident where the Magistrate accepted that the applicant was, contrary to his claim, at the complainant's residence in the early hours of the morning, it is reasonable to infer that the applicant was driving his taxi that evening. This is because as at that time the complainant had not disclosed her Scarborough address to the applicant, and the complainant gave evidence of meeting up with the applicant in his taxi in traffic and being followed by him. On the balance of probabilities, which is the standard of proof which I must apply in determining factual issues, I do find that the applicant was driving his taxi in the early hours of 11 January 2004 and, while so doing, followed the complainant as part of the series of events leading to the offending conduct in which he engaged that evening.
17 It might be asked of what significance any such involvement of a taxi vehicle might be. On this subject, the applicant submitted that a taxi might be used for domestic purposes as well as commercial, and that what occurred here was pursuit of a person known to the applicant in a taxi being so used. I think what can be said, in relation to the incident culminating at the complainant's residence, is that the use of the taxi tends to undermine the argument based upon the purely personal nature of the offence. A taxi is a vehicle for public hire and licensees can be expected to conduct themselves in a manner befitting the public nature of the
(Page 8)
- vehicle while driving one. I adopt the respondent's submission that the use of the taxi in the manner described as part of the events leading to the applicant's conviction makes the offending conduct of greater significance when the question of good character for the purposes of s 48(1) of the Act is considered.
Duration of offence
18 The respondent alleged that the conviction occurred as a result of an ongoing matter that continued over approximately five years. By contrast, the applicant contended that the Magistrate effectively found that the actual offence occurred over a short period of time (early January 2004 to 11 March 2004).
19 The reasons make clear that his Worship considered the discrete incidents in the context, and as the culmination, of the relations between the applicant and the complainant from 2001 until 2004 (excluding the period November 2001 to October 2002 when the complainant was overseas). One aspect of those revelations prior to the occurrence of the incidents was evidence that the applicant had telephoned the complainant approximately 1500 times in considerably less than three years, although the applicant raised some matters which tended to militate against the apparent magnitude of that number. The following extracts shed light on the way in which the Magistrate analysed the matter:
"So whatever happened at the kebab shop on or about New Year's Eve, it seems to me it should not be viewed as coming out of the blue as some completely new development.
… The best way to approach this, on the evidence that I have heard, is to look at what might be described as the culmination of events and see that as a conclusion, which is signalled, I guess, of what goes before and the culmination is, of course, the incident on the 11th of March 2004 at the NV Bar.
… It seems to me that the evidence of all three incidents establishes certainly apprehension on the part of the complainant in a subjective sense. As to whether it might cause apprehension or fear in the objective sense, I think one has to look at the incidents in the context of the whole period of the relationship and evidence of what I would characterise as obsessive behaviour on the part of the accused, and I am satisfied that the behaviour of the accused, as disclosed by the
(Page 9)
- evidence, could be reasonably expected to cause apprehension or fear."
20 In my view, the answer to the rather technical question of the duration of the offences as found by his Worship is of less importance than his Worship's findings of the circumstances leading to his ultimate finding that the applicant pursued the complainant in a manner that could be reasonably expected to, and did, intimidate her. Those circumstances are outlined above and are consistent with the finding of the Magistrate that the applicant engaged in obsessive behaviour which could be reasonably expected and did cause apprehension or fear. This is sufficient, in my view, to impugn the good character of the applicant in the context of considering his suitability as a holder of a taxi endorsement.
The extent to which the applicant should continue to be penalised for the stalking offence
21 Counsel for the applicant described the offence as the solitary "blip" during the applicant's 18 adult years. The offending behaviour was described as an "aberration". Further, the applicant had "moved on" during the past two years, and the offence and conviction did not signify adequate reasons to deprive the applicant of a source of income otherwise open to him. Written references submitted on the applicant's behalf indicated that his employer did not have any concerns about his suitability as a taxi driver and a former employer in a restaurant spoke of a number positive attributes and of the applicant's value as an employee. Finally, it was said, the applicant had committed no breach of the Western Australian Taxi Driver Code of Conduct.
22 As I have said earlier in these reasons, the welfare of the fare paying public must be uppermost in the mind of the Director General's delegate and in the mind of the Tribunal standing in the Director General's shoes. It is true that in the case of all bar the most serious offences, and in particular in the case of the offence for which the applicant was convicted, there should be a period subsequent to the offence which, once expired, should result in consideration of a person as the holder of a taxi endorsement without reference to the conviction. However, it would be a matter of considerable concern to the public, and in particular, potential fare paying passengers within the public, if the applicant were to have his rights restored so soon after his December 2005 conviction. There is a natural timing associated with these matters, and in my view, the time has simply not yet been reached when it is appropriate for this to occur in the
(Page 10)
- applicant's case. It might be reached after, say, a further 12 or 18 months, assuming that there is no further offending behaviour in the meantime.
Conclusion
23 For the above reasons, I believe that the decision to cancel the applicant's "T" endorsement was the correct and preferable decision and should be affirmed.
Order
1. The application is refused.
2. The decision of the respondent's delegate of 27 February 2006 to cancel the applicant's driver's licence endorsement class "T" is affirmed.
- I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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