Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Christopher v Roads and Maritime Services [2017] NSWCATOD 187 Hearing dates: 5 October 2017 Date of orders: 19 October 2017 Decision date: 19 October 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: 1. The decision under review is set aside. 2. The decision is made that the applicant is authorised as a private hire vehicle driver. Catchwords: PASSENGER TRANSPORT – refusal of private hire vehicle driver authorisation – whether fit and proper person – criminal convictions– whether sufficient responsibility and aptitude to drive a private hire vehicle – history of driving offences – time since offences - rehabilitation Legislation Cited: Passenger Transport Act 1990 Category: Principal judgment Parties: John Christopher (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: Blair Criminal lawyers (Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 2017/ 00187907 REASONS FOR DECISION 1. This is an application by Mr John Christopher for review of a decision refusing him authorisation to drive private hire vehicles. His application for the authorisation was refused by Roads and Maritime Services (the respondent) because the respondent could not attest that Mr Christopher is of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle. In addition, the respondent could not attest that Mr Christopher has sufficient responsibility and aptitude to drive a private hire vehicle. The legislation 1. Section 40 of the Passenger Transport Act 1990 (the Act) relevantly provides: 40 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised private hire vehicle driver". (2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle driver. Maximum penalty: 100 penalty units. (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle: (i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and (ii) in accordance with law and custom. 1. The issue in this case is whether the Tribunal can attest that Mr Christopher is considered to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle and whether he has sufficient responsibility and aptitude to drive such a vehicle. Background 1. Mr Christopher is 45 years of age. He left school at age 16 and worked predominantly in the security industry or as a driver. He has held an authority to drive private hire vehicles in the past. Criminal convictions 1. Mr Christopher has a number of criminal convictions. In 2000 he was convicted of five offences of obtaining money by deception. The offences primarily concerned the purchase of goods with stolen bank cheques. In 2001 he was convicted of possessing a prohibited drug, having goods reasonably suspected of being stolen and possessing a prohibited weapon. He was fined in relation to these offences. 2. On 17 July 2009 Mr Christopher was convicted of two counts of supplying a prohibited drug (cocaine and heroin), having custody of a knife in a public place and dealing with property suspected to be the proceeds of crime. He was sentenced to imprisonment for 2 years and 3 months with a non-parole period of 18 months. He was released on parole on 21 December 2010. 3. It is because of these offences, particularly those for which he was convicted in 2009 that the respondent considers Mr Christopher not to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle. Driving offences 1. Mr Christopher also has a lengthy history of driving and traffic offences stretching back to soon after he obtained his licence. His licence was suspended on five occasions up to 2009. Since 2009 there have been a further six traffic offences committed by Mr Christopher. The majority occurred in 2015. 2. In light of Mr Christopher's driving history, the respondent does not consider that he has sufficient responsibility and aptitude to drive a private hire vehicle. The applicant's case 1. Mr Christopher told the Tribunal that he became involved with drugs, particularly amphetamines, in 2000 following the deaths of two of his friends. He suffered depression for an extended period and abused drugs. He said in relation to the offences of obtaining money by deception for which he was convicted in 2000 that he was engaged by another person as a driver to deliver the cheques and pick up goods. He said he knew the cheques were stolen. 2. Mr Christopher acknowledged that the 2009 convictions were serious and concerned his involvement as a principal in an enterprise selling cocaine and heroin to drug users. He said he is ashamed of his past but getting caught made him a better person. He said that his time in prison allowed him to refocus his life. He said he did as many courses as he could while he was in prison and was never disciplined. He completed his parole period without incident. He has not taken drugs for many years. 3. Mr Christopher's representative submitted that, while the 2009 convictions were serious, Mr Christopher pled guilty and received a sentence at the lower end of the range awarded by the courts. He provided statistics from the Judicial Commission of NSW to support this statement. He also pointed out that the court found special circumstances and the proportion of imprisonment compared to the parole period served by Mr Christopher was less than usual. He submitted that the import of this was that the court afforded Mr Christopher a clear opportunity for rehabilitation. He also noted Mr Christopher has never been involved in violence or offences of a sexual nature. 4. Mr Christopher's representative submits that the likelihood of Mr Christopher reoffending is extremely low. Mr Christopher has committed no further offences since being released from prison in 2010, understands what he has done and admits responsibility. He is also sincerely remorseful. 5. Mr Christopher said that since being released from prison in 2010 he has had difficulty gaining employment because of his criminal record. A family friend, Paul Dias, employed him in 2011 on a temporary basis in his building management company. After this, Mr Christopher established his own building management business but it was not successful as he lacked the necessary skills. 6. Mr Christopher worked with Snap Couriers as a driver in 2015-16 and since January 2017 has worked as an office administrator and dispatcher for Airbus Shuttle. This position is two days per week and his employer has offered him full-time employment if he obtains his hire car driver authorisation. Mr Christopher said he would then be able to employ a suitably qualified person in his building management company while he worked full time. 7. Mr Christopher also works as a Santa and on a voluntary basis with a children's football club. He has obtained the relevant working with children check. He has recently been approached by Odyssey House to assist with their advocacy program against drug abuse. 8. Mr Christopher met his wife in 2012 and they now have a young daughter. He said his family is the main focus of his life and he wants to be able to support his mother, wife and daughter. 9. Mr Christopher said that his recent driving infringements in 2015 were obtained when he was driving as a courier for Snap Couriers. He said in relation to an infringement for turning improperly, he was following instructions from his GPS and turned from the wrong lane. A police car was behind him and he was stopped. 10. On three occasions he was caught on camera driving in a bus lane. He said each of these incidents occurred at the same location on Mount Street merging onto the northern approach to the Harbour Bridge. He said he had driven over the Harbour Bridge an average of three times a day during the 12 months he worked for Snap Couriers. 11. Mr Christopher's representative noted that none of Mr Christopher's driving infringements involved negligent driving or injury to others. He submitted that Mr Christopher had provided explanations for his most recent infringements. He notes that Mr Christopher has extensive previous experience as a professional driver within the private hire vehicle industry. He submits that recent infringements, when placed in context, cannot fairly be characterised as either serious or blatant transgressions. 12. Mr Christopher provided references from past employers, all of whom spoke highly of his skills and character. His current employer, Edward Baranov, Managing Director of Airbus Shuttle Pty Ltd, describes Mr Christopher as trustworthy, reliable and hardworking. He confirmed that he is aware of Mr Christopher's past driving history and criminal record and that he intends to employ him full time if he is able to drive. 13. A family friend, Lindsey Abrahams, who has known Mr Christopher since he was 15 years old, states that Mr Christopher's criminal convictions are an isolated incident in his life. He states that Mr Christopher has assisted him for the past three years in training an under 9's rugby league team for South Sydney. Mr Lindsay believes that Mr Christopher has put the behaviours and lifestyle he engaged in between about 2000 and 2008 behind him. He said Mr Christopher has been a great help and mentor to his own son who has a drug addiction to prescription medicine. 14. Mr Paul Dias, who employed Mr Christopher in his construction management company and who is a long-time family friend, states that he has spoken with Mr Christopher on many occasions about his offending. He believes Mr Christopher is very aware of the seriousness of his crimes and the damage his crimes cause families and the community. He sees Mr Christopher weekly and believes he is highly motivated to live a positive life and to be a role model for his family and community. 15. Mr Christopher's character references also state they believe him to be a safe driver and give examples of trusting him to drive children and other family members to various events. 16. Mr Christopher's representative submits that Mr Christopher's circumstances have changed dramatically since 2009 and he has made every effort to rehabilitate himself. He has the support of family and friends, a number of who attended the hearing and an offer of secure employment. Mr Christopher's employer attended the hearing to provide support to him. The respondent's case 1. The respondent relies upon the official records of Mr Christopher's criminal and driving behaviour. 2. The respondent conceded there has been a change in Mr Christopher's behaviour since his conviction in 2009 but submits that insufficient time has elapsed since the expiry of his sentence to enable the Tribunal to attest to Mr Christopher's good repute and fitness and propriety to be the driver of a private hire vehicle. His convictions, particularly in 2009, were very serious arising out of an enterprise conducted by Mr Christopher and another person. This was a significant operation involving the supply of drugs in which large amounts of money were involved. 3. The respondent submits that Mr Christopher's driving record shows that he does not have sufficient aptitude to be the driver of a private hire vehicle. His licence has been suspended on five occasions and over his driving history since 1992 he has accumulated 66 demerit points. The respondent submits that Mr Christopher needs further time to be able to demonstrate better driving. Consideration Fitness and propriety 1. At issue is whether the Tribunal can "attest" that Mr Christopher is of good repute and in all other respects a fit and proper person to be a private hire vehicle driver. Most of the decided cases have dealt with an authority under s 33 of the Act to be a taxi-cab driver. The provision in s 33 is identical to that in s 40 of the Act relating to drivers of private hire vehicles and the cases are therefore apposite. 2. In Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 the Appeal Panel stated at [12] that by using the word "attest" the Parliament has sought "to emphasis the idea that the conferral of an authority involves a declaration of public trust". 3. The Appeal Panel went on to say that the expression "good repute and in all other respects a fit and proper person" is meant "to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern". The Panel then discussed the concepts of "good repute" and "fit and proper" (at [13]): "repute" goes to the public estimation of the person while "fit and proper" goes to such matters of character "as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry". 4. In Re T and the Director of Youth and Community Services [1980] 1 NSDWLR 392 Wadell J stated when discussing the meaning of "good repute": A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession . . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 1. A criminal history is not, however, evidence of bad repute, but does create a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation: Loye v Director General, Department of Transport [2000] NSWADT 145 at [29]. 2. In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal stated: [T]here are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: ­ the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; ­ the nature, seriousness and frequency of any complaints made against the applicant; ­ the applicant's driving record; ­ the applicant's reputation in the community; and ­ the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 1. Mr Christopher was very candid in his evidence before the Tribunal. He has acknowledged the seriousness of his criminal offending and understands the effect upon others of his crimes of supplying drugs. His offending appears to have occurred in a discreet period between about 1999 and 2008. Mr Christopher gave evidence that he became involved with drugs after the deaths of two of his friends and this then led to a period of depression and criminality. While no excuse for his behaviour, the Tribunal accepts that the deaths of his friends acted as a trigger for his subsequent behaviour. 2. Mr Christopher demonstrated before the Tribunal that he is genuinely remorseful about his past behaviour. Sentencing remarks by the judge in relation to his 2009 convictions were not before the Tribunal, but I accept the evidence presented that his sentence was at the lower end of the range for these offences as was the custodial period of the sentence. Implicit in the sentence given by the court is a belief that Mr Christopher would be able to rehabilitate himself and not be a danger to the community. 3. It is apparent from the evidence that Mr Christopher is determined to make a new life for himself. He has distanced himself from his former life, has committed no further offences and has had no involvement with drugs for years. I am satisfied that he is intent on living a life free from drugs and any related criminal activity and, while it can never be said that there is absolutely no risk he will lapse, I consider that risk to be extremely small. 4. Mr Christopher has the support of his wife, mother and other close family members and friends. He is involved in his community through junior rugby league and other activities. His character referees, who are fully aware of his criminal record, provide evidence of his good reputation. His current employer, who is also aware of his past, is willing to employ him full time if he is able to drive. His employer attended the hearing to provide support to Mr Christopher. 5. While I accept the submissions of the respondent that it is not a particularly lengthy time since the end of Mr Christopher's sentence for the 2009 convictions, he has in fact not offended since 2008. I consider the evidence of his rehabilitation and the high regard in which he is held by others, to be sufficient evidence to satisfy me that at the present time Mr Christopher is of good repute and in all respects a fit and proper person to hold an authorisation as a private hire vehicle driver. Responsibility and aptitude 1. It is readily apparent that Mr Christopher has had a poor driving record. The majority of the infringements occurred prior to his arrest and subsequent conviction in 2009. The last time his licence was suspended was in 2009. He has, however, had other infringements since then. 2. Of concern is that Mr Christopher incurred several infringements in 2015 at which time he was working as a professional driver in the capacity of a courier. His explanations for how those infringements occurred do not detract from that fact. This casts some doubt on whether he has sufficient responsibility and aptitude to drive a private hire vehicle. 3. On the other hand, Mr Christopher has had no further traffic infringements in the past two years. Without detracting from the extensive nature of his driving record, I also accept his representative's submissions that his infractions have not involved injury to anyone or negligent driving. The evidence of others demonstrates that he is a trusted driver and they do not hesitate to place children and others in his care. 4. Mr Christopher appeared to the Tribunal to be well aware of his responsibilities and understands the importance of being given a further opportunity to pursue his chosen career. He would be well aware of the need to drive in accordance with the relevant laws. On balance, taking into account all of the evidence, I am satisfied that Mr Christopher has sufficient responsibility and aptitude to drive a private hire vehicle. 5. In light of the above findings, the correct or preferable decision is for the decision under review to be set aside and for Mr Christopher to be granted the authorisation. Orders 1. The decision under review is set aside. 2. The decision is made that the applicant is authorised as a private hire vehicle driver. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2023