UPTON and DIRECTOR GENERAL OF TRANSPORT - [2012] WASAT 63

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008

CITATION: UPTON and DIRECTOR GENERAL OF TRANSPORT [2012] WASAT 63

MEMBER: MS C WALLACE (MEMBER)

HEARD: 12 MARCH 2012

DELIVERED : 12 MARCH 2012

PUBLISHED : 30 MARCH 2012

FILE NO/S: CC 1764 of 2011

BETWEEN: MICHAEL JOHN UPTON
Applicant
AND
DIRECTOR GENERAL OF TRANSPORT
Respondent

Catchwords:

Road traffic - Review of decision to refuse class T extension - Significance of sexual related offences to question of good character - Requirement for genuine insight, remorse and rehabilitation - Relevance of long passage of time

Legislation:

Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 42(4)
State Administrative Tribunal Act 2004 (WA), Div 3 Pt 4

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr P Busby (Acting as Agent)

Solicitors:

Applicant: Self-represented
Respondent: Director General of Transport

Case(s) referred to in decision(s):

Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The respondent refused the applicant's application for an extension T licence on the basis of the seriousness and nature of his convictions of carnal knowledge of a child under 16 years of age and indecent dealing of a child under 13 years of age.
The Tribunal set out and considered the factors to be taken into account in determining the significance of these type of offences to the question of whether a person ought to be regarded as of good character. In particular, the Tribunal considered the significant passage of time since the offences were committed and whether the applicant had shown genuine remorse, insight and rehabilitation. On assessing all factors, the Tribunal concluded that the applicant did not have the requisite good character and affirmed the respondent's decision to refuse the application for an extension T licence.

Introduction

The applicant, Mr Upton, lodged an application with the Tribunal on 14 November 2011, pursuant to reg 42(4) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) seeking a review of a decision by the Director General of Transport (respondent) to refuse Mr Upton's application for an extension T licence. Mr Upton attended a licence suitability conference on 11 August 2011. Following that conference a notice was sent to Mr Upton refusing to grant him a T extension to his motor driver's licence on the basis of the seriousness of the offences he was convicted of in 2002 in relation to carnal knowledge of a child under 16 years of age and indecent dealings with a child under 13 years of age.
Mr Upton sought a review of the respondent's decision and was notified of the result of that review by letter dated 28 September 2011. The decision following the review was again to refuse to vary Mr Upton's motor driver's licence by adding an extension T on the basis of the seriousness and nature of the criminal offences of which he had been convicted.
Mr Upton filed a number of documents in support of his application to this Tribunal and made submissions at the hearing which, in summary, raised the following points:
•Mr Upton required an extension T licence to enable him to work as a casual country taxi driver in Northam in order to assist with disabled and Department of Veterans Affairs' passengers.
•Mr Upton submitted that the circumstances giving rise to his 2002 convictions occurred 34 years ago, that he made a mistake and that he has rehabilitated in the intervening years and is now an upstanding member of his community.
•Mr Upton, when the charges were brought against him, cooperated fully with the police, pleaded guilty and accepted his punishment.
•Mr Upton relied on a number of written character references which were filed together with his application. One of the character references written by Ms Samantha Twigger, dated 2 January 2012, is the only reference which refers to Mr Upton's criminal history, although it does not specify the nature of that history. Ms Twigger is the business owner of Avon Valley Taxis and is willing to employ Mr Upton, she says, irrespective of his history and criminal convictions.
•Other than the 2002 convictions Mr Upton claims a 'clean criminal history'.
•Mr Upton expressed remorse for what happened in his past and claims that he was 'young and stupid' but has paid the price for his mistake and wants to move on and give back to the community.
Mr Busby, on behalf of the respondent, made the following submissions:
•Although the circumstances surrounding Mr Upton's convictions occurred many years ago, the convictions themselves are fairly recent, occurring in 2002.
•The convictions were of a most serious nature, being sexual offences, and the sentencing evidences that they were at the higher end of seriousness, given that Mr Upton was sentenced to a total of 12 years' imprisonment.
•Although Mr Upton has shown some remorse, his insight and rehabilitation is questionable, particularly because there is a lack of accuracy with his recollection of events versus what is recorded in the sentencing transcript dated 30 August 2002. For example, Mr Upton stated during the licence suitability conference that the victim was 14 years of age at the time of the offences, but he was charged with four charges of indecent dealing with a girl under 13 years of age and the sentencing transcript notes that the victim was 11 or 12 years of age when the offences first took place.
•There are serious aggravating circumstances in relation to Mr Upton's offences including that the offending occurred over a prolonged period of time; there was a significant difference in the age of the victim and Mr Upton (he was in his 30s at the time of the offences); there were no mitigating circumstances such as diminished responsibility through alcohol or drug addiction or mental health at the time of the offences; they were committed purely because of a lack of willpower; and Mr Upton, together with his wife and her family, made plans to cover up the offence rather than take responsibility.
•The respondent doubts Mr Upton's submissions and evidence regarding rehabilitation and insight because he was forced to take responsibility for his actions when they were disclosed to police by a third party and he and his wife appear to blame the victim for pursuing Mr Upton, indicating a lack of insight and acceptance of responsibility.
•The public expectation is that taxi drivers should be of good character. A person convicted of serious sexual assault offences and sentenced to 12 years' imprisonment falls well short of those expectations.

Consideration

This matter comes within the review jurisdiction of the Tribunal which is the subject of Div 3 Pt 4 of the State Administrative Tribunal Act 2004 (WA). Relevantly, the review is by way of a hearing de novo and the purpose of the review is to produce the correct and preferable decision at the time that the decision was made. The Tribunal can make any order it considers appropriate, including to affirm, vary, set aside and substitute its own decision, or send the matter back to the decisionmaker for reconsideration.
The question to be determined in cases involving a T extension licence is whether the person is of good character. The position of the respondent is that, taking into account the seriousness of the offences of Mr Upton and what it says is clear evidence of lack of insight, Mr Upton does not have the requisite good character. Mr Upton disputes this submission. His submission is that he does have good character and that in the intervening years since he committed the offences he has given back to the community and not reoffended.
In considering the issue of good character in the vocational context, an applicant must show not only that they are possessed of a requisite degree of knowledge of the duties and responsibilities expected of them as the holder of the particular licence, but also that they possess sufficient moral integrity and rectitude of character such that the public would accept them as suitably trustworthy to perform the duties which the relevant licence requires.
In relation to long passages of time from when crimes have been committed and the impact of that to the question of good character, the Tribunal is guided by the comments of Walsh JA in Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 at 366:
… One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. …
Although there are no inflexible rules or policy in relation to these matters, there are a number of factors which are often taken into consideration in determining whether a person has the requisite good character, as set out in Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996). Wheeler JA noted in that case that prior convictions will generally be regarded as more serious in this context if:
1)they occur in the course of or relate to the carrying out of the relevant occupation;
2)they are offences of dishonesty, broadly understood;
3)they occurred whilst the person was the holder of the licence in question; and
4)they are otherwise so serious either in and of themselves or as representing a course of disregard for the law as to reflect particularly adversely on the character of the person committing them.
Her Honour went on to set out some indications that a person may be of good character and a fit and proper person notwithstanding previous convictions by taking into account the following factors:
1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes;
2)if the offences were committed a substantial time ago;
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; and
4)the person's character generally since the commission of the offences.
The factors which appear to therefore be in Mr Upton's favour are that the offences themselves occurred a significant number of years ago, there has been an absence of offending in the intervening period, and Mr Upton has shown some remorse and appears to be actively involved in his community.
However, there are important issues which must be explored further. One important issue is that the nature of the offences themselves are a matter of concern. Sexual offences committed against children are offences with which the public has the utmost concern. Given the seriousness of offences of that nature, there must be clear evidence on the part of the offender of genuine remorse, rehabilitation, insight, lack of offending and other strong indicators of moral and ethical good character. Only in the most exceptional circumstances would the public place trust in the applicant, given the nature of those particular offences.
The Tribunal was concerned, given the severe sentencing which was allocated to Mr Upton. Given that this is a hearing de novo, the Tribunal can look at new evidence, and therefore requested a copy of the sentencing transcript so as to better understand the severity of the sentencing. In addition, the respondent filed a copy of the transcript of the licence suitability conference that Mr Upton and his wife attended on 11 August 2011. Those documents have been reviewed carefully and compared to ascertain the reasons behind the 12 year sentence given to Mr Upton, and to more closely examine the very important issues of rehabilitation, remorse and insight.
In relation to the severity of the sentencing, upon a review of the sentencing transcript of 30 August 2002, the sentencing judge deemed Mr Upton's offences as most serious for the following reasons:
•The victim was extremely young, being only 11 or 12 years of age at the time that the offences began.
•The offences occurred over an extended period of two years.
•The victim was the sisterinlaw of Mr Upton and therefore there was a relationship of trust which had been breached.
•There was a significant age difference between the victim and Mr Upton, given that he was in his 30s and she was only 11 years of age at the time that the offences began.
•The offences occurred on a number of occasions, it resulted in the victim's 'loss of innocence', the victim stated that it was nonconsensual, and it had a very significant effect on the victim in that she became pregnant and, in her words, it 'took away her childhood and education' and had an extremely longterm effect on her. Justice Heenan noted that the effect on the victim was 'irrecoverable'.
In light of those aggravating factors, it is understandable that the sentencing was so severe.
In relation to the issues of rehabilitation and insight, it is important to consider what has been communicated by Mr Upton in relation to his convictions and also what has transpired since he committed the offences. It appears clear that Mr Upton, his wife and her family chose to cover up the offences at the time that they were committed and for a significant number of years following. Mr Upton has sought to rely on the significant intervening period as evidencing his rehabilitation and to support the contention that he is now a 'changed man'.
This Tribunal struggles to accept this assertion. A long passage of time in and of itself does not evidence rehabilitation. What sways against a finding of rehabilitation is that these matters were brought to light not by Mr Upton but by a member of his wife's family. Thus, for many years he was able to live his life free from any judgment in respect of his actions, nor has he sought any counselling or the like. Because for over 30 years the offences had been covered up, Mr Upton is unable to point to that passage of time as evidencing that he has taken ownership of what he had done, or to show that he has reflected, rehabilitated and been held accountable for his actions. In effect, there has been no rehabilitation period and reassimilation into society other than when he was only very recently released from prison. Therefore, in the Tribunal's view, there has been no significant period of rehabilitation, given the circumstances.
In addition, the Tribunal has concerns in relation to the lack of evidence of any insight on the part of Mr Upton. Mr Upton appears to be attempting to diminish his role in and responsibility for the offences. For example, the transcript of the licence suitability conference dated 11 August 2011 was of concern in a number of respects, including that Mr Upton informed the respondent that the offences took place over a relatively short period, approximately 6 months, that the victim was 14 years of age at the time of the offences and, when describing the circumstances in which the offences took place, Mr Upton said that the 'young lady' kept coming around to his home and every night he would 'chase her off and she would keep coming on back and coming back'. The sentencing transcript indicates that the victim was 11 or 12 years of age when the offences first occurred and that they occurred over approximately two years. Mr Upton therefore appears to be attempting to lessen the gravity of the offences and also appears to be allocating blame to the victim, who was a very young child at the time. Thus, the Tribunal finds that the applicant has a lack of insight into the offences and has not adequately demonstrated an acceptance of his accountability/responsibility.
In summary, therefore, given the most seriousness nature of the offences, the severity of the sentencing and the lack of rehabilitation or insight shown by the applicant, the Tribunal is not satisfied that the applicant is of good character to warrant the issuing of an extension T endorsement to his licence.

Orders

The Tribunal therefore orders:
1.The application is dismissed.
2.The decision of the respondent's delegate to refuse the T class endorsement is affirmed.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, MEMBER