CITATION: Lloyd -v- Director General, Department of Transport [2001] NSWADT 201 DIVISION: General Division APPLICANT PARTIES: Nicholas Lloyd RESPONDENT Director General, Department of Transport FILE NUMBER: 013160 HEARING DATES: 18/09/2001 SUBMISSIONS CLOSED: 09/18/2001 DATE OF DECISION: 11/29/2001 BEFORE: Montgomery S - Judicial Member APPLICATION: Long Distance Service driver - cancellation of authority - Passenger Transport Act - long distance service driver - cancellation of authority - Passenger Transport Act - tourist service driver - cancellation of authority - Tourist Service driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Rasheed -v- Director General, Department of Transport [2000] NSWADT 5 Brown -v- Director General, Department of Transport [2000] NSWADT 153 McKenzie -v- Director General, Department of Transport [2000] NSWADT 126 CASES CITED: Bedi -v- Director General, Department of Transport [ 1999] NSWADT 51 Sipple -v- Director General, Department of Transport [2001] NSWADT 132 Saadieh -v- Director General Department of Transport [1999] NSWADT 68 Singh -v- Director General Department of Transport [1999] ADT 96 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The Director General's decision to refuse Mr Lloyd's application for an authority to drive tourist and long distance passenger vehicles is affirmed. Background 1 On 28 June 2001 Mr Lloyd lodged an application with the Tribunal for a review of a Decision of the Director General, Department of Transport to refuse his application for an authority to drive tourist and long distance passenger vehicles. 2 Mr Lloyd had previously held an authority of the type sought. Whilst holding that authority, Mr Lloyd was charged with six counts of obtaining benefit by deception. The Respondent subsequently suspended the authority in July 1999, and later cancelled it. Mr Lloyd sought review of that decision in this Tribunal ("the 1999 Application"). A differently constituted Tribunal affirmed the Respondent's decision in November 1999. 3 In April 2001 Mr Lloyd applied to the Respondent to have the authority re-instated. At the time of Mr Lloyd's application, the Respondent's records had not been updated and therefore did not reflect the cancellation of the authority. The record showed that the authority was suspended. Communication between the parties, which followed Mr Lloyd's application, reflected the Respondent's incorrect records. 4 Mr Lloyd's application was denied and the suspension of the authority was varied to a cancellation. Mr Lloyd was notified of the Respondent' decision and the reasons for the decision by letter dated 13 June 2001. 5 Mr Lloyd applied for an internal review of that decision. He presented detailed submissions and references in support of his application. 6 The internal review was conducted on 19 June 2001 and the decision was affirmed. Mr Lloyd was notified of the result of the internal review by letter dated 20 June 2001. Evidence 7 The Tribunal had the benefit of oral evidence from Mr Lloyd and his father Mr Alan Lloyd. Mr Lloyd also relied on the detailed submission presented in support of his application for internal review and several written references attesting to his character. The Respondent relied on the two volumes of files relating to Mr Lloyd's various Authorities. 8 It is not in dispute that Mr Lloyd has been convicted of several dishonesty offences since 1989. The decision of this Tribunal's Deputy President in relation to the 1999 Application sets out the details of Mr Lloyd's convictions. It serves no purpose to recount those details here. 9 The last of those convictions on 11 August 1999 resulted in Mr Lloyd's release on a good behaviour bond for three years and ordered to perform community service and to attend the Probation and Parole Service for counselling. 10 Mr Lloyd's evidence is that he has completed the ordered hours of community service and he is no longer subject to supervision by the Probation and Parole Service. His bond remains in force until 10 August 2002. 11 Since the cancellation of his Tourist and Long Distance Vehicle authority, Mr Lloyd has worked for ASCO Services International Pty Limited, a contractor who washes Westbus Pty Ltd buses at night. Mr Lloyd's duties with ASCO include driving coaches within the various yards, supervising cleaning staff and management of the operation on a daily basis. His evidence is that it is a responsible position, in which he has access to the Westbus offices, deals with lost property and has charge of some $15 million worth of equipment. Mr Lloyd's employer is aware of Mr Lloyd's record of convictions yet he works unsupervised and has never breached the trust extended to him by his employer. 12 Several references, each in a similar standard form, were provided on behalf of Mr Lloyd indicating that the authors have known Mr Lloyd for a period of two years and attesting to his good reputation. They expressed the view that Mr Lloyd is a fit and proper person to hold an authority to drive public passenger vehicles. 13 David Atkins, a Project Manager with the Disabled Alternative Road Travel Service (D.A.R.T.S) provided a reference on behalf of Mr Lloyd. Mr Lloyd had worked for D.A.R.T.S as a placement under his Community Service Order. Mr Atkins stated that during his involvement with D.A.R.T.S Mr Lloyd had demonstrated considerable responsibility and dedication to service delivery and became a trusted member of the team who was well respected and compassionate in helping people. He had found Mr Lloyd to be punctual, reliable and dutiful. He was keen to be involved and on numerous occasions worked beyond his hours of requirement. 14 John Spata also provided a reference on behalf of Mr Lloyd indicating that he has known Mr Lloyd as a friend and business associate for a period of over seven years. He stated that he is aware of Mr Lloyd's criminal history and the circumstances surrounding those convictions. He expressed the view that Mr Lloyd meets the standards of reputation, fitness and propriety and poses no threat to the travelling public. 15 A report from Dr David Collison of the Salvation Army states that Mr Lloyd saw him for counselling. He noted that Mr Lloyd recognised the need for counselling and was willing to receive help. He concluded that, "In my opinion, compared to other people who I have seen in similar circumstances, Mr Lloyd is genuinely seeking professional help and will continue in therapy with myself." 16 Mr Lloyd also relied on references, which had been provided on his behalf in relation to the 1999 Application. These included a reference from Westbus with whom Mr Lloyd was employed as a Coach driver until early July 1999, stating that Westbus would be happy to continue to employ Mr Lloyd, and a reference from the Proprietor of ASCO Services International with whom Mr Lloyd has been employed since July 1999. 17 Mr Lloyd's father, Alan Lloyd, attested to his son's rehabilitation. He stated that he understands the fit and proper person requirements applicable to the authority sought and he believes that while Mr Lloyd would not have satisfied those requirements in the past, he would pass the test now. He said that Mr Lloyd's circumstances had changed, he has been rehabilitated into his family and has a strong support network. Mr Lloyd has been honest for two years and can be expected to be reliable in the future. 18 The Respondent relied on the material contained within the files relating to Mr Lloyd's various Authorities. That material identifies the details of Mr Lloyd's criminal history and the events leading to these proceedings. Mr Lloyd did not seek to challenge any of this material. Submissions 19 Mr Lloyd also relied on the detailed submission presented in support of his application for internal review. In these submissions Mr Lloyd urged the Tribunal to view his criminal history in three separate groups of offences. 20 Mr Lloyd submitted that the first group of offences that the Tribunal should consider consists of numerous fraud offences, some were Commonwealth charges the balance were State charges. The authorities sought pleas to four state matters and six commonwealth matters. Other charges were taken into account on sentencing. 21 In relation to this category, Mr Lloyd submitted that the sentencing Judge, Judge Flannery, accepted that Mr Lloyd had been the subject of various emotional stresses during the time of the commission of the offences. They were desperate and stupid acts, which were regretted. 22 Mr Lloyd was ordered to perform 500 hours of community service and placed on a five-year good behaviour bond in relation to these offences. Mr Lloyd was to pay compensation to the victims of the fraud. 23 The Community Service Order has been completed and the bonds have expired. Mr Lloyd continues to pay the compensation. He has paid some $60,000. Approximately $4,000 remains to be paid. 24 Submissions in relation to the first group of offences are that: (i) while the convictions were recorded in 1993 the offences were committed in 1989 and 1990. (ii) Mr Lloyd co-operated with the authorities and regretted the offences as shown by his early guilty pleas and contrition. (ii) Mr Lloyd was under emotional pressure brought about by his parental family and his marriage. These facts were accepted by the Sentencing Judge and taken into account. (iv) the sentence for these offences has been completed. (v) had the Sentence been handed down soon after Mr Lloyd admitted the offences the convictions would be in excess of ten years old, and not required to be disclosed on any application made to the Respondent. (vi) Mr Lloyd has made genuine and continuing efforts to compensate the victims of these offences. 25 The second group of offences that Mr Lloyd urged the Tribunal to consider as a distinct unit relates to the administration and supervision of the Community Service Order and compensation condition on the good behaviour bond imposed as part of the sentence for the first group of offences. 26 Mr Lloyd submitted that he had made a genuine effort to comply with the Courts orders but was constrained by his work and financial commitments at that time. On one occasion the Sentencing Judge extended the period of the bond to enable continued monitoring and administration of the payments by the Court. On another occasion, in May 1994, the Sentencing Judge cancelled the original Community Service Order and the imposed a fresh order of 500 hours. 27 Mr Lloyd was unable to comply with conditions of the bond, in particular the payment of compensation, because of his difficult financial position. His problems in obtaining accreditation and authority to drive public passenger vehicles impacted negatively on these circumstances. 28 Mr Lloyd referred the Tribunal to the matter of Rasheed-v- Director General, Department of Transport [2000] NSWADT 5, in which the presiding Judicial Member, PM Skinner, stated: "There have been various developments since in relation to the applicant's performance of his bond conditions, disclosed on the District Court file which was tendered in the hearing by the respondent. The applicant has been dealt with by the District Court for breaches in failing to make the compensation payments as and when scheduled. However he gave evidence to the District Court and confirmed that to me he was unable to make all the payments because he was unable to work as a taxi driver and had not been able to find other work, and as a result has not been able to keep up the payments." "The District Court dealt with the matter by varying the repayments schedule, ordering no a ction on the breach at this stage." "The applicant was unable to drive taxis because of the refusal by the respondent to renew his authority- under the Act. There would be a degree of circularity unfair to the applicant if I were to rely on those breaches, which I accept were largely caused by the decision under review-, as justifying the decision." 29 Mr Lloyd submitted that the second group of offences is comparable to those discussed by the Judicial Member in Rasheed , in that his financial position was affected by his inability to work in the industry. His subsequent inability to comply with the Court's orders because of his financial situation should not be relied upon in assessing this application. 30 The third group of offences that Mr Lloyd urged the Tribunal to consider as a distinct unit relates to six counts of obtaining benefit by deception. The offences involved the improper use of credit card information to make payments on accounts held in Mr Lloyd's name. 31 The court imposed a sentence of 350 hours Community Service Order and a three-year good behaviour bond. Mr Lloyd was placed under the supervision of the NSW Probation and Parole Service and required to attend counselling and a personal development course. As noted above, these orders have been satisfied with the exception that the bond remains in force until August 2002. 32 Mr Lloyd provided a detailed outline of the events that lead to these convictions. He submitted that the offences resulted from clouding of his judgment by the desire to help a friend and colleague. 33 He made the decision to help a friend, firstly with moral support and the use of his reputation by recommending this person to others. He was then led into over extending his finances in the belief that his reputation would be affected if he did not act. These actions led him to commit the offences he was later charged with. 34 The sentencing Magistrate took the view that this and the state of Mr Lloyd's business affairs were factors central to his decision to commit the offences. 35 Mr Lloyd said that since he committed the last offences in February 1999 he has put a great deal of effort into his rehabilitation and rebuilding his reputation. He has undergone counselling in relation to parts of his personality which gave him the overwhelming desire to help others even to the point of compromising his own morals and beliefs. He is sincerely remorseful for his criminal activity, and has removed himself from the situations that led to these actions. 36 Mr Lloyd further submitted that he has made significant efforts to rehabilitate himself and he has now earned a good reputation among people with whom he works and associates. Many of the people supporting this application are aware of his criminal history and are, based on his behaviour since the offences were committed, prepared to attest to his good character and reputation. He referred the Tribunal to the matter of Brown -v- Director General, Department of Transport [2000] NSWADT 153 as a model for the approach that should be taken when assessing the current application. 37 In Brown the Deputy President, Ms Hennessy stated: "His criminal convictions mean that his reputation in the community is less that perfect, however I believe that he is sincere when he says he has turned the comer in recent times. Although it is only 12 months since he was convicted of malicious damage to property, since that time he has conducted himself in a way that demonstrates his commitment to a responsible lifestyle and to providing for his son. This is supported by several character references. In addition, he has made considerable efforts to re-train himself and has not been involved in any criminal activity." 38 Mr Lloyd submitted that the remaining period of the Bond should not prevent him from holding an authority to drive Public Passenger Vehicles. He referred the Tribunal to the decisions of Rasheed and McKenzie -v- Director General, Department of Transport [2000] NSWADT 126 as authority for that proposition. In Rasheed the presiding Judicial Member stated at paragraph 36 of the written decision: "Finally, it was submitted to me by Mr Wozniak for the respondent that the fact that the applicant will remain under a bond until 20 May 2000 prevents a finding under s 11(2) of the Act that he is 'of good repute'. I do not accept this. The sentence for the conviction cannot be looked at separately, nor can it elevate the facts of the offence into something more severe. It is the offence itself, confirmed as it is by the conviction, that must be assessed under s 11(2)." 39 Mr Lloyd submitted that although the criminal record gives evidence of a person' s character, the Tribunal must take into account the circumstances surrounding the offences. During the Court hearings both in 1993 and 1999 evidence was tendered in relation to the Mr Lloyd's emotional and financial position at the time of the offences. The Court accepted this evidence as justifying a lenient sentence in both cases. 40 The fact that Mr Lloyd has a criminal record cannot be viewed in isolation to other factors affecting his suitability to hold an authority. 41 He submitted that he has experienced what is effectively two years of suspension of the authority and that the community would perceive this as being sufficient to reinforce the purpose for which an authority is granted under the Act. 42 Mr Lloyd asked the Tribunal to note that he is applying for an authority to drive tourist and long distance coaches which, in essence, will provide limited contact with clients and payments. He asked the Tribunal to take account of the comments of the Tribunal's President, O'Connor J. in Bedi -v- Director General, Department of Transport [ 1999] NSWADT 51 where he stated at [36]: "As noted, bus transport is less intimate. A less stringent approach to the application of the character standard in this setting is appropriate. Counsel for the Administrator noted in submissions, that not all forms of driving for reward require special authorities that attest to character (for example, parcel vehicles, courier vans). Nonetheless in this case the applicant held a taxi authority for many years. While it would be premature to restore the applicant's taxi authority, a more considerate approach might be taken in relation to restoration of a bus authority, (subject to medical clearances)." 43 In the alternative, Mr Lloyd submitted that if the Tribunal was not prepared to grant the authority now, it could order that the authority be granted after he had satisfied certain conditions. He referred the Tribunal to the decision of Judicial Member Fox in the matter of Sipple- v- Director General, Department of Transport [2001] NSWADT 132. 44 Mr Wozniak for the Respondent submitted that each of the authorities cited by Mr Lloyd could be distinguished on their facts. A history of continuing dishonesty was not a feature in any of the matters to which Mr Lloyd has referred the Tribunal. 45 Mr Lloyd was convicted of serious offences over a long period of time and ordered to perform community service for a total of 1882 hours. A Community Service Order is the final step before imprisonment. Mr Lloyd's circumstances therefore cannot be correctly compared to the authorities cited. 46 Mr Wozniak submitted that the Tribunal must decide whether a reasonable period has elapsed since the offences were committed. Factors that should be taken into account include the fact that Mr Lloyd is guilty of repeated dishonesty. His record must show that he is dishonest. Psychiatric assessments and references given on his behalf in the past have been proven to be wrong therefore the Tribunal must be cautious in relying on such material. 47 The Tribunal should also recognise that Mr Lloyd's bond remains in force. 48 Mr Wozniak submitted that punishment of Mr Lloyd is not in issue. Nor is it a question of "giving him a go". The Tribunal must attest that it is satisfied that Mr Lloyd meets the requirements of being a fit and proper person to be the driver of a public passenger vehicle. It must assess whether the community, with full knowledge of the circumstances, would be satisfied that the requirements of the legislation have been met. The relevant circumstances are that Mr Lloyd stole from passengers and betrayed the trust placed in him. 49 Mr Lloyd has not produced a new report from his counsellor to support his case. The Tribunal is therefore left with references of the kind which have previously been proven to be wrong. 50 The Courts have set a guide that is available to the Tribunal to assist it in assessing whether the time that has elapsed since the offences is sufficient. That guide is the good behaviour bond. As noted above, the bond remains in force until 10 August 2002. 51 In circumstances where there is no history of repeated offences, the bond may not be a sufficient guide to what is a reasonable time to elapse between the committing of offences and the granting of an authority. This was the case in Rasheed and for that reason Rasheed should not be adopted as an authority in this matter. 52 Mr Wozniak submitted that it was open to the Tribunal to state that it considered that insufficient time had elapsed to be satisfied that Mr Lloyd is unlikely to re-offend. However, the Tribunal may consider that the elapsed time would be reasonable if he did not re-offend during the remaining period of the bond. If the Tribunal formed this view, the Respondent would take notice of that view if Mr Lloyd were to reapply for an authority. Relevant Law 53 Section 12 of the Passenger Transport Act gives the Director General discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) sets out the purpose of an authority in the following terms: 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 public passenger vehicle; and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated; and (ii) in accordance with law and custom. 54 As the Deputy President noted in her decision in relation to the 1999 Application, the concepts of "fit and proper" and "good repute" have been discussed in previous cases (see for example Saadieh- v- Director General Department of Transport [1999] NSWADT 68; and Singh v Director General Department of Transport [1999] ADT 96). These decisions can be found on the Tribunal's internet site: www.lawlink.nsw.gov.au/adt. 55 In Saadieh v Director General, Department of Transport the Deputy President set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain an authority. These factors were: 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. Findings 56 In my view, in determining Mr Lloyd's suitability and fitness to obtain an authority it is appropriate to weigh the factors identified by the Deputy President in Saadieh v Director General, Department of Transport as referred to above. 57 In this case, Mr Lloyd has been convicted of serious dishonesty offences over a long period of time. I have noted Mr Lloyd's submissions but I do not accept that the circumstances surrounding those convictions are such that this factor should not be given serious weight. The seriousness of the offences and the fact that they occurred over a long period of time must significantly influence the Tribunal's determination notwithstanding any surrounding circumstances, which should be considered. 58 The Respondent did not seek to rely on issues related to Mr Lloyd's driving record. I therefore make no negative finding in relation to that issue. 59 Some insight can be gained in regard to Mr Lloyd's reputation in the community from the references provided on his behalf. I give no weight to those references that appear in a standard form, as there is no indication of how those references were obtained or whether or not the authors were aware of Mr Lloyd's criminal background. Notwithstanding that view, I am satisfied from the remaining references offered on Mr Lloyd's behalf that Mr Lloyd is well regarded among his work colleagues and that he has the support of his family and friends. 60 The final factor identified by the Deputy President, the likelihood that Mr Lloyd will re-offend, is difficult to predict. In attempting to make this prediction, I have weighed the clear evidence that Mr Lloyd has made substantial efforts at rehabilitation with the equally clear evidence of his betrayal of the trust and confidence which others have placed in him. 61 I accept Mr Lloyd's submission that the first group of offences occurred over 10 years ago and he did not re-offend for 9 years after that. Nevertheless his later convictions were relatively recent. Although he was contrite in relation to the offences he committed in 1989, he committed further offences in 1998. 62 I also note that Mr Lloyd is applying for an authority to drive a bus, and there would be no opportunity in that situation to handle money or credit card details. 63 The Tribunal must attest that Mr Lloyd is a fit and proper person to be the driver of a public passenger vehicle, otherwise the Respondent's decision must be affirmed. 64 In assessing whether sufficient time has elapsed since the offences, I am guided by the time imposed by the Courts in terms of the good behaviour bond. 65 I accept that the bond is clearly not conclusive of a time at which Mr Lloyd can be said to be rehabilitated. However, in the absence of any independent current psychiatric report I am of the view that it would be imprudent to allow Mr Lloyd to hold the authority sought prior to the expiration of the bond in August 2002. 66 I note Mr Wozniak submission that if Mr Lloyd does not re-offend during the remaining period of the bond then the Respondent would take notice of that fact if Mr Lloyd were to reapply for an authority. In my view that would be a reasonable approach. 67 I am also of the view that if Mr Lloyd were to obtain a psychiatric report which addresses the issue of the likelihood of Mr Lloyd re-offending, it would be reasonable for the Respondent to take notice of that report if Mr Lloyd were to reapply for an authority prior to the expiration of the remaining period of the bond. 68 At this time, I am unable to attest that I am satisfied that Mr Lloyd meets the requirements of being a fit and proper person to be the driver of a public passenger vehicle or that the community, with full knowledge of the circumstances, would be satisfied that the requirements of the legislation have been met. 69 In my view, in the absence of independent evidence on the issue of the likelihood of Mr Lloyd re-offending, further time needs to elapse before the community can be confident that Mr Lloyd has undergone genuine rehabilitation. 70 For these reasons I affirm the Respondent's decision to refuse Mr Lloyd's application for an authority to drive tourist and long distance passenger vehicles. 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