Sharari v Director General, Transport NSW
[2011] NSWADT 196
•17 August 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Sharari v Director General, Transport NSW [2011] NSWADT 196 Hearing dates: 11 August 2011 Decision date: 17 August 2011 Jurisdiction: General Division Before: S Frost, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Transport - taxi driver - cancellation of driver authority - serious criminal offences - ongoing physical and psychological issues - whether person of good repute - whether a fit and proper person to drive taxis Legislation Cited: Passenger Transport Act 1990, s 33(3) Category: Principal judgment Parties: Jamil Sharari (Applicant)
Director General, Transport NSW (Respondent)Representation: J Sharari (Applicant in person)
Smythe Wozniak Legal (Respondent)
File Number(s): 113120
reasons for decision
GENERAL DIVISION (S FROST (JUDICIAL MEMBER)): Mr Sharari's taxi driver authority was cancelled by Transport NSW (TNSW) in March this year, when TNSW became aware of a number of criminal convictions recorded against Mr Sharari in November 2010. Mr Sharari sought internal review of the cancellation decision but the original decision was affirmed. He has applied to the Tribunal to have the cancellation overturned.
The question for the Tribunal is whether Mr Sharari is a person "of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab": s 33(3) of the Passenger Transport Act 1990 (the Act).
Background
Mr Sharari first started driving taxis in January 2009 shortly after being granted his driver authority, for which he had applied in November 2008. Upon receipt of his application TNSW sent Mr Sharari a letter headed "Warning - Driver Authority" which noted as follows:
Your traffic record indicates that you have a number of traffic related driving offences. It is also noted that you had been convicted previously of criminal offences. Although the Ministry does not condone your behaviour in the past, the Ministry has approved your application to commence training.
The driver of a public passenger vehicle is required to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates. The offences recorded are of concern to the Ministry and may jeopardise your continuation to be the holder of an authority to drive public passenger vehicles in New South Wales.
The letter then noted Mr Sharari's convictions on 22 November 2005 for "assault officer in execution of duty", "common assault", and "behave in an offensive manner in/near public place/school" (the 2005 events). The letter explained:
Action
The criminal and traffic offences recorded on your proven offence record are of concern to the Ministry, however, after careful consideration, it has been determined not to take action in respect of your public passenger authority at the present time.
Warning
In determining any future action against your authority, you are warned that the Ministry will take into consideration any known complaints, arrests, convictions, proven offences and traffic history; including those on the attached extract. This may result in the variation, suspension or cancellation of your authorisation as a public passenger vehicle driver authority holder.
Mr Wozniak for the Respondent described this as a case of Mr Sharari "just scraping through" at the initial driver authority approval process. That description seems apt.
Mr Sharari's taxi-driving activities seem to have been incident-free from January 2009 to July 2009. However, in July 2009 he was involved in a serious accident while driving a taxi, which resulted in serious injuries (including the dislocation and fracture of his right hip, and nerve damage to his right leg), an extended period of hospitalisation, and subsequent rehabilitation and psychological counselling. He has recovered from his injuries to some extent, although he says that he can now drive a car for no more than about half an hour at a time before the pain forces him to take a rest.
He has not driven taxis at all since the accident.
In July 2010 he was involved in the incident that led, eventually, to the cancellation of his driver authority. The cancellation did not occur until March 2011, eight months after the incident. One of the reasons for the delay is that Mr Sharari did not notify TNSW that he had been charged with a number of offences, even though he was required by clause 44 of the Passenger Transport Regulation 2007 to do so.
It is not necessary to detail the particular circumstances of the 2010 incident; it is sufficient to note that in November 2010 he was convicted of the following offences:
a)not keep left of dividing line (traffic offence);
b)refuse to produce licence and state name;
c)assault police officer in execution of duty;
d)resist or hinder police officer in execution of duty;
e)destroy or damage property value up to $2,000.
He was fined a total of $3410, ordered to pay court costs plus compensation of $445.50 for the property damage, and put on a 12-month bond for the "resist or hinder" conviction and a concurrent two-year bond for the assault. Neither bond has yet run its course.
The Tribunal has before it a copy of a report dated 6 October 2010, prepared by Dr Bruce Westmore, a forensic psychiatrist, most likely in support of sentencing submissions for Mr Sharari's trial in October/November 2010. According to the report, Mr Sharari told Dr Westmore that he had almost no recollection of the July 2010 incident. Dr Westmore opined as follows:
He was involved in a serious motor vehicle accident in July 2009. He suffered significant orthopaedic and neurological injuries. He continues to suffer symptoms of pain and associated disability and rehabilitation is continuing.
In addition, he developed a depressed mood following the accident. He has received counselling and that continues and he has also been prescribed a wide range of medication including antidepressants, Schedule 8 analgesics and medication to treat nerve pain. It is likely he has developed a medically induced dependency on the Schedule 8 drugs and his general practitioner has talked to him about this particular problem and the doctor is attempting to reduce that medication. He has however been advised that he can increase the dose again should he suffer breakthrough symptoms of pain. This probably reflects the doctor's understanding that he continues to suffer serious pain associated with the injuries at times.
The matters currently before the court arose after he had taken, he said, two spirit drinks combined with a range of medication. The medication including Digesic, the antidepressant Endep, Endone and Lyrica. All of these medications potentially interact with alcohol but in particular the antidepressant and the Endone.
Mr Sharari reports memory difficulties in relation to the alleged offending behaviour and I have diagnosed him as having suffered a substance induced amnesic disorder. He also has an adjustment disorder with depressed mood, this as a result of the accident.
The court could consider him under section 32 of the Mental Health (Forensic Provisions) Act 1990. He has a number of mental conditions including persistent amnesiac in relation to the alleged offending behaviour, medically induced substance dependence for which he will eventually require specialised treatment and a persistent adjustment disorder with depressed mood. It is unlikely that he will regain memory for the incident itself but the substance dependence and the adjustment disorder are both conditions which can be effectively treated. He would have been suffering both of these conditions at the time of the alleged offending behaviour and he continues to suffer from these difficulties.
I would recommend the following treatment plan:
1)That he continue to attend his general practitioner, [...] who practices at [...].
2)That he continue attending the psychologist [...] who is also helping him with pain management and relaxation techniques.
3)That he remain incomplete sobriety from alcohol, particularly while he continues to take prescribed medication.
4)That his general practitioner continues to attempt to reduce the opiate analgesics he is currently prescribed. An increase in the antidepressant medication might also be recommended.
5)That he be referred to a pain management centre and in that setting he will see a psychiatrist on three or four occasions. I would suggest that occur so alternative strategies to managing pain might be considered. These strategies will include reducing his reliance upon analgesics.
This man's forensic prognosis should be extremely good, provided he does not mix alcohol with prescribed medication. ...
Dr Michael Garvan, occupational physician, has written, at the request of TNSW, a brief report commenting on Dr Westmore's report. Dr Garvan states:
Regarding Mr Sharari's psychiatric status, I agree with Dr Westmore's advice regarding management of his adjustment disorder and substance dependence. His fitness to hold a Driver Authority would depend on confirmation by his GP, pain management specialist, and psychiatrist, that his condition was controlled and that he was compliant with treatment and was abstaining from alcohol. Confirmation would require completion of the DoT Medical Specialist Assessment Report, including advice that Mr Sharari met the criteria for a conditional DA with regards his psychiatric condition and substance dependence.
Regarding Mr Sharari's physical status, further advice would also be required regarding his ability to drive a taxi safely and effectively. This could be clarified by a practical driving test performed by an accredited taxi driving instructor/assessor. It might also be necessary to obtain a report from any surgeon or other specialist involved in the treatment of his back and right lower limb injuries.
Mr Sharari has also provided to the Tribunal a character reference on which, together with further references provided to TNSW in relation to the internal review, he relies in support of his application.
Consideration
The Macquarie Dictionary defines "repute" as:
1) estimation in the view of others; reputation.
2) favourable reputation; good name; credit or note.
The references before the Tribunal have evidently been provided so as to support a contention that Mr Sharari is a person of good repute. However, it is noteworthy that none of the three references makes any specific reference to the 2005 events. Two of them assert that Mr Sharari has been heavily punished for the events of 2010 and, expressly or by implication, argue that he should not be punished further. The third states that "the convictions that have been recorded against him are completely out of character ..." but it is not clear that this referee was even aware of the 2005 events.
In the circumstances of this case, references which do not acknowledge, let alone address, the 2005 events are not helpful.
Mr Sharari's behaviour in relation to the events of 2005 and 2010, involving as they do offences against officers of the NSW Police Force, is of an extremely serious nature. I cannot comfortably conclude on the material before me that Mr Sharari is a person of good repute and I am certainly not prepared to "attest" to the existence of that state of affairs (which would be the effect of setting aside the decision under review: see s 33(3) of the Act).
As to the question of his fitness and propriety to be a taxi driver, I am not satisfied that he meets the standard, for the following reasons:
a) he was involved in two series of events , in 2005 and 2010, involving aggression and violent behaviour, and he has not demonstrated that the risk of a recurrence of that type of behaviour is low;
b) the fact that the concurrent bonds imposed by the Local Court in November 2010, requiring that Mr Sharari be subject to the supervision of the NSW Probation Service until November 2012, have not yet expired;
c) the absence of any indication that Mr Sharari has taken the steps that Dr Westmore recommended in 2010 and with which recommendation Dr Garvan has agreed as recently as 8 August 2011;
d) Mr Sharari's continuing impaired physical condition which renders it impossible to drive a car with any degree of comfort for more than half an hour at a time.
Conclusion
On the material before the Tribunal I am not satisfied that Mr Sharari is a person of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab.
The decision under review is 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: 17 August 2011
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