VIRK and DEPARTMENT OF TRANSPORT
[2014] WASAT 82
•1 JULY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008
CITATION: VIRK and DEPARTMENT OF TRANSPORT [2014] WASAT 82
MEMBER: MS C WALLACE (MEMBER)
HEARD: 1 JULY 2014
DELIVERED : 1 JULY 2014
FILE NO/S: CC 653 of 2014
BETWEEN: SHAMSHER SINGH VIRK
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Administrative law - Road traffic - Review of cancellation of endorsement class T - Question of good character - Insight and remorse - Passage of time since commission of offences
Legislation:
Australian Citizenship Act 2007 (Cth)
Criminal Code Act Compilation Act 1913 (WA), s 248
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 12(7)(c), reg 42(4)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 26, Div 3 Pt 4
Result:
Application unsuccessful
Decision of respondent affirmed
Summary of Tribunal's decision:
The applicant's application for a T class endorsement to his driver's licence was refused by the respondent due to the serious nature of offences of which the applicant was convicted in 2011, being two offences of unlawful wounding.
The Tribunal affirmed the decision of the respondent and found that because of the serious nature of the offences, the fact that they occurred in fairly recent times, together with a lack of true insight shown by the applicant, the applicant was not of the requisite good character in order to be granted a taxi endorsement.
Category: B
Representation:
Counsel:
Applicant: Ms A Lee
Respondent: Mr P Busby
Solicitors:
Applicant: Shadgett Legal
Respondent: N/A
Case(s) referred to in decision(s):
Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1NSWR 357
Tavelli v Johnson (unreported, WASC, Lib. No. 960693, 25 November 1996)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant (Mr Virk) lodged an application with the Tribunal dated 14 May 2014, pursuant to reg 42(4) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations), seeking a review of the decision by the Director General of Transport (respondent) to refuse Mr Virk's application for an extension T licence. That application was refused by letter dated 30 April 2014, primarily on the basis of two convictions entered against Mr Virk for unlawful wounding on 13 August 2012. Mr Virk received a nine month imprisonment penalty as a result of those convictions, which was suspended for a period of 12 months ending on 13 August 2013. The respondent found that as a result of those serious criminal convictions, it was unable to be satisfied that Mr Virk was of the requisite good character as required by reg 12(7)(c) of the Regulations. Mr Virk had previously had a T extension added to his driver's licence in mid‑2009 which was cancelled in early September 2012 upon the respondent becoming aware of his criminal convictions. Mr Virk contends that he is of good character in order to hold a T extension to his driver's licence, and therefore seeks review by this Tribunal of the respondent's decision.
At the final hearing, the Tribunal received into evidence the following documents:
•Exhibit A: the applicant's statement of issues, facts and contentions dated 26 June 2014 together with his bundle of documents;
•Exhibit B: the respondent's statement of facts, issues and contentions dated 12 June 2014 together with its bundle of documents;
•Exhibit C: document entitled 'Circumstance of Conviction' dated 17 December 2013; and
•Exhibit D: sentencing transcript from the Magistrates Court of Western Australia (Criminal Division) dated 13 August 2012.
The Tribunal also had the benefit of oral submissions from the parties during the course of the final hearing in addition to oral evidence from Mr Virk.
Consideration
This application 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) (SAT Act). The review is by way of a hearing de novo and the purpose of the review is to produce the correct and preferable decision as at the time the original decision was made (s 27(1) and s 27(2) of the SAT Act). The Tribunal can make any order that it considers appropriate, including to affirm, vary, set aside and substitute its own decision or send the matter back to the decision‑maker for formal reconsideration (s 26 of the SAT Act).
The central question to be determined in cases involving a T extension licence is whether the person is of good character in respect of the particular vocation. The position of the respondent is that, taking into account the seriousness of the offences of Mr Virk, the fact that those offences occurred in recent times, together with an alleged lack of insight, Mr Virk does not satisfy the threshold test of possessing good character. Mr Virk takes issue with the position reached by the respondent in this regard. He contends that he does possess the requisite good character on the basis that the offences do not relate to the particular vocation, are not indicative of his character generally, particularly given his prior history of lack of offending, and that sufficient time has passed to illustrate that Mr Virk is unlikely to reoffend or pose any real danger to the community.
It was accepted at the hearing that in considering the issue of good character in the vocational context, an applicant must not only show that they are possessed of the requisite degree of knowledge of the duties and responsibilities expected of them as the holder of a 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 them to perform.
In relation to the need for a sufficient passage of time to pass from the date when the crime was committed and the impact of that passage of time 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] 1NSWR 357 (Tziniolis) 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. …
As identified by the parties in their submissions in this matter, there are a number of factors which are taken into account by the Tribunal in determining whether a person has the requisite good character in the vocational context. In this regard, I refer to Wheeler JA in Tavelli v Johnson (unreported, WASC, Lib. No. 960693, 25 November 1996) where her Honour noted in relation to prior convictions that they would be regarded as more serious 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 indicators that a person may be of good character in the vocational context, notwithstanding prior criminal convictions, including the following:
1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitude;
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 them have been eliminated; and
4)the person's character generally since the commission of the offences.
It is not in contention between the parties that the offences did not occur during the course of Mr Virk's employment. It was also not in contention at the hearing that the criminal offences were serious in nature. The primary issues which were in contention at the hearing and which are relevant to the determination of the question of character by the Tribunal are as follows:
1)Whether sufficient time has lapsed since committing the criminal offences, given their serious nature, for the Tribunal to make a finding of good character or whether more time is required to lapse in respect of more serious offences.
2)Whether, even if only a relatively short period of time has passed since committing the offences, Mr Virk is nevertheless able to establish that he remains of good character because of his particular exceptional circumstances illustrated by the number of character references he has provided to the Tribunal, his lack of prior offending and his charitable voluntary work.
3)Whether Mr Virk has demonstrated genuine remorse and contrition, and true insight and understanding of the earlier offences.
Passage of time
The relevant offences took place on 17 October 2011 and Mr Virk was convicted on 13 August 2012. His suspended sentence concluded on 13 August 2013. The offences are most serious and involved Mr Virk and others forming a common intent to assault two victims. The material facts are set out in the respondent's bundle of documents. Those material facts evidence that the crime was a premeditated one of a most violent nature. Two of the offenders, including Mr Virk, armed themselves with tyre levers which were used to wound the two victims by using them with repeated force to their torso and head. Whilst one of the victims was on the ground, Mr Virk repeatedly struck him with the tyre lever whilst a number of other offenders punched and kicked the victim, mainly to the head region. When one of the victims was able to get to his feet and escape, Mr Virk followed him and attempted to strike him again with the tyre lever. The assault was prolonged and was captured on CCTV footage, and did not end until security officers intervened and apprehended all of the accused, including Mr Virk. Each of the victims received lacerations to their scalp, each requiring a total of 20 stitches. Bruising was also sustained to their face and body. It is surprising, given the nature of the offence, that the victims did not sustain more serious injuries.
The Tribunal accepts that the more serious the nature of a criminal offence, the more time is required to lapse during which no further offences are committed. This is for two main reasons, one being to clearly show that the offences, if there are no prior offences, are not the commencement of a pattern of behaviour of the convicted person. Secondly, it has been accepted by this Tribunal in applications of this nature that a substantial passage of time from the time of the offence better supports a finding of insight and remorse on behalf of the convicted person (that is, more time has passed to allow reflection to occur, together with a substantial period of lack of offending). In such circumstances, the Tribunal can more confidently find that there is insight, and also find that the safety of the public is therefore safeguarded.
However, as noted in Tziniolis, the passage of some years in and of itself is not sufficient. It is also important to understand what has occurred during that passage of time, most particularly whether there has been a complete lack of offending, as well as other steps taken by the convicted person to make amends and to minimise the likelihood of a reoccurrence of such behaviour.
I find in relation to this particular matter that there has not been a substantial passage of time that has passed, not only since the offences were committed by Mr Virk, but also since the suspended sentence has lapsed. The suspended sentence came to a conclusion in August 2013. During the time that the suspended sentence was in effect, Mr Virk had significant self‑interest in not reoffending because, if he were charged and convicted of an offence during that period of time, then he would have run the risk of serving an immediate term of imprisonment, possibly the full term. It is difficult, therefore, to place any weight on that period of time as weighing in favour of Mr Virk in respect of evidence of remorse, contrition and insight. The more significant passage of time effectively commences once that suspended term lapsed, such period being approximately 10 months. That period of time is more significant in the assessment of Mr Virk's character, in my view. Nevertheless, even if one were to take into account the period of time from the time that the offences were committed ‑ some two and a half years ‑ it is not a significant passage of time, particularly in light of the seriousness of the offences committed. Therefore, in my view, the period of time which has passed since the offences were committed, and more so since the penalty lapsed, is not a factor which weighs in Mr Virk's favour in relation to the determination of his character in the vocational context.
Weight of character evidence and evidence of insight
Mr Virk submitted to the Tribunal that even if the passage of time is insufficient in and of itself to support a finding of good character, he should, nevertheless, be found to be of the requisite good character because of the evidence put forward to the Tribunal in this regard. Mr Virk submits that the Tribunal should make this finding because of the following:
•the 13 character references that he has been able to produce to the Tribunal, including some from those within the relevant industry;
•the fact that Mr Virk satisfied the 'good character' test required in order to receive Australian citizenship which was granted to him on 18 March 2014; and
•the charitable work he engages in for the Sikh Gurdwara Perth (Inc) of Western Australia, including running the kitchen for Sunday services and helping new immigrants.
Although Mr Virk filed with the Tribunal an extensive number of character references (totalling 13), the Tribunal was ultimately unable to place much weight on those character references such as to be able to find him of good character in a vocational context. This is because of the following limitations in respect of those character references:
1)The majority of the character references were provided from friends of Mr Virk and therefore lacked independence.
2)A number of the character references do not refer specifically to the criminal offences of which Mr Virk was convicted, and therefore little to no weight can be given to those particular references.
3)Although it appears clear that in respect of a number of the character references that the referee was aware of the criminal convictions, the Tribunal has formed the view that Mr Virk was not forthcoming in his explanation as to the circumstances of those convictions.
In relation to Mr Virk's Australian citizenship, there were no submissions made to the Tribunal as to how the test of good character is applied in relation to the relevant legislation, being the Australian Citizenship Act 2007 (Cth) and the Regulations to be applied by the Tribunal in this matter. However, it was accepted by the parties that the considerations to be taken into account by this Tribunal would certainly differ to those which would be taken into account in a non‑vocational context. In addition, the Tribunal was most concerned in respect of the information provided to the Minister for Immigration and Border Protection (Minister) in respect of Mr Virk's citizenship application. In this regard, Mr Virk was asked to provide further information to clarify the circumstances of his criminal convictions (Exhibit C). Mr Virk provided those circumstances as follows:
My brother went to casino while I went to pick him up with my cousin. When I reached there my brother was seeming very upset. On asking he told me that he was punched by few guys in the Eve club and security kicked him out. In the meantime, the guys who punched him came out of the club and started harassing him. I could not take it and ended up involving in fight out of emotions[.]
The Tribunal is most concerned regarding this explanation by Mr Virk to the Minister and to the degree that it was relied upon in issuing Mr Virk with Australian citizenship, the Tribunal cannot place any weight on the good character finding made in respect of that decision. It is clear from the finding of material facts in respect of Mr Virk's criminal offences, as well as in the sentencing transcript, that Mr Virk and others waited for their victims to leave the Eve club in order that they could seek retribution, and that it was a premeditated crime. It was not an emotionally‑charged act taken in the heat of the moment. The findings of material facts do not support what Mr Virk informed the Minister, nor what he has clearly informed a number of his referees (in particular, I refer to the reference from Ms Hoar in Exhibit A). Mr Virk has clearly attempted to diminish his responsibility by suggesting that he involved himself in a violent altercation in defence of his brother who was being attacked. Such a sentiment was mirrored in his oral evidence today at the hearing. That assertion is found to be false by the Tribunal. Indeed, defence of another is a defence to the charge of unlawful wounding (I refer to s 248 of the Criminal Code Act Compilation Act 1913 (WA) in this regard). I note that that defence was never raised by Mr Virk, despite him being legally represented in the criminal proceedings. Indeed, if it had been successfully raised by him, he would not have been convicted of the offences. In relation to this issue, it is helpful to quote from the sentencing transcript as follows:
This is a serious and sustained attack on the victims … It was a significant time after the initial eviction from the bar that this happened and there did seem to be … marshalling of their resources in order to deal with the complainants involved.
The CCTV footage clearly shows that the accused men to be the aggressors in this. There is certainly an aspect of them loitering around and waiting, biding their time to wreak some sort of retribution against the original eviction in the bar …
Imprisonment is appropriate because of the serious nature of the assaults … the fact that there is the use of weapons … that it … continued whilst the complainants are clearly on the ground and unable to defend themselves and basically this group act[ed] in a very cowardly and inexcusable manner. (Pages 4 and 5 of Exhibit D)
Therefore, I find Mr Virk's explanation to the Department and to his referees false and misleading, and certainly not indicative of good character.
Although I accept that Mr Virk is engaged currently in charitable and voluntary work, I do not find that that fact, in and of itself, is sufficient for a finding of good character, given all of the other circumstances referred to in this decision.
Insight
Although Mr Virk has submitted that he has insight into his convictions, I am unable to accept that submission. It is a fairly straightforward matter to assert that one has contrition, remorse and insight. However, if the person's actions suggest otherwise, then it is unlikely that the Tribunal will accept such a submission. This is the position in relation to this matter. Although Mr Virk submits that he has insight, documents produced by him in support of his application for review suggest otherwise. In particular, I refer to Exhibit C and also to a number of Mr Virk's character references, including that of Ms Hoar and that of Mr Sharma and Mr Gill. It appears clear to the Tribunal that Mr Virk has not shown insight into his behaviour and his criminal convictions. What he has done is attempt to distance himself and try and justify his actions, no doubt to himself and to others around him. Mr Virk has done this by explaining away his actions as taken in defence of a family member. However, such a characterisation simply does not stand against the findings of material facts and the comments of the sentencing Magistrate to which I have referred. I therefore find that Mr Virk has not shown true insight in the intervening period since he committed those particular offences.
Conclusion
In summary, therefore, given the serious nature of the offences, the fact that the offences occurred in fairly recent times, together with a lack of true insight shown by the applicant, the Tribunal is not satisfied that Mr Virk 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 [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, MEMBER
0
0
4