CITATION: Carter -v- Director General, Department of Transport [2001] NSWADT 210 DIVISION: General Division APPLICANT PARTIES: Aaron Richard Carter RESPONDENT Director General, Department of Transport FILE NUMBER: 013170 HEARING DATES: 28/09/2001 SUBMISSIONS CLOSED: 09/28/2001 DATE OF DECISION: 12/11/2001 BEFORE: Higgins S - Judicial Member APPLICATION: Bus driver - grant of authority - Long Distance Service driver - grant of authority - Passenger Transport Act - bus driver - grant of authority - Passenger Transport Act - long distance service driver - grant of authority - Passenger Transport Act - tourist service driver - grant of authority - Tourist Service driver - grant of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes Act 1900 Passenger Transport Act 1990 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Z v Director General, Department of Transport [2000] NSWADT 87 Bedi v The Director General of Transport [1999] NSWADT 51 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General, department of Transport to refuse Mr Carter's application for a driver's authority is affirmed. Introduction 1 On 19 March 2001, Aaron Carter lodged an application with the Department for a driver's authority under s.12 of the Passenger Transport Act, 1990 ("the Act") to drive a regular passenger bus and long distance, tourist and charter buses. In that application Mr Carter gave a positive response to the question of whether he had been convicted of an offence. 2 On 20 April 2001 the Department wrote to Mr Carter advising him that the initial results from the Police Service indicated that his application would require a degree of consideration and requested Mr Carter to complete a bus authority application form and pay a fee of $40 if he wished to continue with his application. On 9 May 2001 Mr Carter forwarded to the Department a money order for $40 together with two completed application forms. 3 On 11 May 2001, the Department wrote to Mr Carter advising him that the Director General had decided to refuse his application for a public passenger authority. The basis of that refusal was Mr Carter's proven offences during 1999 and 2000. In the Statement of Reasons the delegate of the Director General stated "your proven offence record indicates you are not a person of good repute and in all respects a fit and proper person to drive a passenger vehicle. Therefore, I cannot attest that you are a fit and proper person to hold a public passenger authority in accordance with s.11(2), Passenger Transport Act, 1990. 4 On 28 May 2001, Mr Carter made an application for an internal review of the abovementioned decision. In support of his application for a review Mr Carter submitted several character references and submitted that his criminal record was limited to a very short period of time and arose from a domestic situation, "albeit not to my credit and do not portray a clear picture of my true character". 5 On 13 June 2001, the internal review affirmed the original decision. In affirming the original decision the Commissioner's delegate took into account the fact that Mr Carter had failed to provide any relevant additional information that supported his application and that the facts, evidence and material indicated that he was unable to satisfy the requirements of s.11 of the Act in that he could not be considered to be a person of "good repute" or a "fit and proper person to be the driver of a public passenger vehicle". 6 On 28 June 2002, Mr Carter lodged an application for review of the abovementioned decision. Jurisdiction 7 Under s.52(1) of the Passenger Transport Act, 1990 ("the Act") a person whose driver's authority application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision. Section 63 of the Administrative Decisions Tribunal Act, 1993 ("ADT Act") sets out the Tribunal's power when reviewing a reviewable decision. That section states that: "(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including following: (a) Any relevant factual material; (b) Any applicable written or unwritten law; (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision; (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the Administrator in accordance with any directions or recommendations of the Tribunal". Legislation 8 Section 12 of the Act sets out the criteria and procedure for granting a driver's authority. Sub-section 12(1) states that "having regard to the purpose of an authority, the Director General may grant authorities to persons applying for them". 9 Sub-section 11(2) sets out the purpose of an authority in the following terms: "11(2) 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) i n accordance with the conditions under which a public passenger service is operated; (ii)in accordance with the law and custom. (3) The regulations may create categories or grades of authority". 10 Section 4 of the Act sets out its objectives which include: "(e) To encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services". Issues 11 The issue in this case is whether, given Mr Carter's criminal history, it can be "attested" that he 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. Evidence 12 Mr Carter relied on his letter to the Tribunal, dated 29 June 2001, in which he set out the circumstances of his criminal record and other relevant material. He also tendered into evidence additional references, the writers of which all attested to Mr Carter's good character. However, only two of these referees made reference to the fact that they were aware of his prior convictions. One of these references is from a Dr Nino Sa Cordeiro of the Campbelltown Hospital, undated, and stating that the reference is written in support of his application to the Tribunal. In that reference, Dr Sa Cordeiro states: "I have known this pleasant young man for the past 2 years and believe that Mr Carter is a responsible and mature young man that has worked hard at making amends of his prior misadventures". 13 Mr Carter was also sworn as a witness. He was shown his letter to the Tribunal, dated 29 June 2001, and stated that the matters contained therein were true and correct. Mr Wozniak cross examined Mr Carter and in doing so put to Mr Carter documents which had been produced to the Tribunal pursuant to Summonses issued at the request of the Department. In compliance with the Summonses that had been issued and served, documents were produced by the Campbelltown Local Court, the Fairfield Local Court and the Burwood Local Court. Of these documents after they had been shown to Mr Carter, Mr Wozniak tendered the following documents into evidence: · Police Fact Sheet dated 4 February 1999 concerning an offence of possessing a prohibited drug. · The Police Fact Sheet dated 16 March 1999 concerning the unlawful possession of a prescribed restricted substance, use of offensive language, entering enclosed land without a lawful excuse and assault. · Police Fact Sheet dated 25 October 1999 concerning offences of larceny, obtain money by deception and attempting to obtain money by deception (three charges). · Letter dated 26 May 2000 from Mandy Woodbury, Clinical Nurse Specialist of the Macarthur Health Service, to the Magistrate of the Local Court stating that Mr Carter had been attending drug and alcohol counselling on a regular basis in an attempt to sort out his many life issues. It also states "He has at his volition given over supervised urine samples, all of which have shown methadone only. He is polite and courteous at all times". · Letter from Mandy Woodbury, Clinical Nurse Specialist of the Macarthur Health Service, to the Magistrate of the Campbelltown District Court providing an update on her report of 26 May 2000 for Mr Carter's appearance at Court on 20 July 2000. · Police Fact sheet dated 27 June 2000 concerning offences of shoplifting and goods in personal custody reasonably suspected of being stolen. 14 Also included in the documents produced pursuant to the Summonses is a letter dated 20 July 2000 from Mrs L.R. Carter to the Presiding Magistrate of the Campbelltown Court. The letter states that she is Mr Carter's mother and that during 1999 there was a long lasting feud between Mr Carter and his younger brother, Bradley, who had stolen property from Mr Carter in order to pawn those goods to support his drug habit. 15 Mr Carter is a young man of 24 years of age and his criminal record is not in dispute. From the criminal histories in the Department's files his criminal record appears to be as follows: Date of conviction Court Offence and penalty 22/01/1999 Campbelltown Local Court Convicted of five charges of passing valueless cheques together with charges of using a false instrument and making a false instrument and attempting to obtain goods by deception. He was sentenced in respect of each charge to six months periodic detention and ordered to pay $600 compensation. On 21 February 1999 Mr Carter was successful in a severity appeal before the District Court who substituted the sentences imposed by the Local Court with a two year good behaviour bond, which expired early this year. 03/03/1999 Fairfield Local Court Convicted at an ex parte hearing of possessing prohibited drugs – fined $300. According to the police fact sheet, dated 4/2/99, police charged Mr Carter on 3/2/99 after they came across him and a girl as they were making a car patrol of the car park at the rear of the Cabramatta Childcare Clinic. Mr Carter and the girl were seated between cars and surrounded by drug paraphernalia on the ground – including heroin in a bum bag. 14/04/1999 Campbelltown Local Court Convicted of a charge of malicious damage and assault – fined $300 and $500. In respect of the assault charge he was also placed on a recognisance under s.558 of the Crimes Act, 1900 not to assault, molest or assault the victim for 2 years. According to the police fact sheet dated 16/3/99, this conviction related to an incident on this day when the police noticed him walk into a unit block. At the time he had a syringe in his right hand. 12/05/1999 Burwood Local Court Convicted of a charge of entering inclosed land without lawful excuse – fined $100. 11/10/1999 Campbelltown Local Court Convicted of entering inclosed land without lawful excuse – fined $200. 10/02/2000 Campbelltown Local Court Convicted, in his absence, of charges of larceny, obtaining money by deception, attempting to obtain money by deception. Magistrate ordered the issue of a warrant for Mr Carter's arrest pursuant to s.80AA of the Crimes Act, 1900. According to the police fact sheet dated 25/10/99 this conviction related to Mr Carter withdrawing, without permission, $290 from his brother's account using his brother's key card. 15/08/2000 Campbelltown Local Court Convicted of charges of attempting to obtain benefit by deception, goods in personal custody reasonably suspected of being stolen, obtaining benefit by deception, attempting to obtain benefit by deception and larceny – sentenced to community service orders without conditions of 130 hours. According to the police fact sheet dated 27/6/00, on that day Mr Carter was stopped as he was leaving the Harris Scarfe store. He was found to be in possession of a t-shirt, six wallets, a leather key ring and six toy cars. He was arrested and on arrest the Police discovered the outstanding warrants that had been issued by the Court following the hearing of 10/2/00. Accordingly, these proceedings involved the abovementioned matters and convictions for shoplifting. 16 During cross-examination Mr Carter stated that the abovementioned offences had been committed during a time he was drug dependent. He also admitted that since February 2000 he had commenced a drug rehabilitation program with the Macarthur Health Service under the joint care of Dr Sa Cordeiro and Mandy Woodbury. This is supported by the abovementioned letter of Mandy Woodbury dated 26 May 2000. As mentioned above, Dr Sa Cordeiro has not made any mention of this in his undated reference to the Tribunal. 17 During cross-examination Mr Carter also admitted that in joining the rehabilitation program he was prescribed methadone and continues to take it to date, although in a lesser dose. In response to a question from Mr Wozniak "but methadone is a substitute to heroin is it not?" Mr Carter stated "I agree methadone is a substitute but it allows me to lead a normal life". He also stated that it was a form of treatment. 18 In his letter and during cross-examination Mr Carter also stated that he recognises that his criminal behaviour was stupid but that it did not reflect on his honesty and true character. Findings of Fact 19 I found Mr Carter to be a truthful witness. He stated in cross examination that he had been advised that he was not required to disclose that he was on a methadone program. Notwithstanding this, he provided frank responses to Mr Wozniak's questions. Having regard to the material that has been presented to the Tribunal I find the following facts: · Mr Carter is 24 years of age. · He completed his School Certificate in 1992. After leaving school he enlisted in the Australian Army and remained with the Army for four years. After leaving the Army he began truck driving and bought his own truck where he undertook sub-contractor work for another truck company. He did this for about twelve months and as a result of a shortage of work had to sell his truck. · In 1998 he was given approval by the Director General for a driver authority subject to him completing the necessary training. He did not complete that training and his authority lapsed. During 1999 and 2000 Mr Carter was convicted and sentenced for offences involving dishonesty, possessing prohibited drugs and entering inclosed land without a lawful excuse. He has not been sentenced to imprisonment on any of the charges. · Mr Carter's offences were in the main committed while he was drug dependent and he is regretful of having committed these. · In February 2000 Mr Carter commenced a rehabilitation program with the Macarthur Health Service. Since then he has committed one offence – that of shoplifting on 27 June 2000. There is no evidence that he was using drugs at that time but he was on a methadone program. He remains on this program and continues to take methadone. · Mr Carter has undertaken various part time and voluntary jobs in the last two years. He is self motivated and his employers all give him their recommendation for employment. These employers however make no reference to his criminal record. · Mr Carter is also regarded highly by his neighbours, friends of his family and his treating doctor and nurse. However, it would appear that some are unaware of his convictions and others such as his treating doctor are not fully aware of the extent of that conduct. Submissions 20 Mr Wozniak submitted that the Director General's decision was the correct and preferable decision in this case having regard to Mr Carter's recent criminal record together with the fact that he remains on a methadone treatment program. He submitted that the Director General was not in a position to attest to Mr Carter being a person of good repute as a reasonable member of the public would not be of such opinion. In summary, his submission was that it was simply too soon to issue the authority sought. 21 Mr Wozniak explained the Department's procedure in respect of issuing a driver authority. The first step was to check the applicant's driving and other records. If these were satisfactory, the applicant would be issued an authority subject to passing a health test and the requisite training. He explained that this procedure has been adopted to save applicants the expense of undertaking a course and doing a health check if they did not get past the first stage. 22 Mr Carter submitted that his criminal record was for a short period of time, that it was as a result of drug dependence and for which he had been receiving treatment. He had not taken drugs for two years and he had not been imprisoned for any of his offences, primarily due to his ability to satisfy the Magistrate he was now drug free and undergoing treatment. Reasons 23 The meaning of "good repute" has been canvassed in several cases. Wattle J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said that: "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". 24 The Tribunal has also considered the meaning of a "fit and proper person" on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he stated: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration". 25 As stated by Deputy President Hennessy in Z v Director General, Department of Transport [2000] NSWADT 87 at paragraph 36 the cases recognise that a person can: "…either expressly or impliedly, … can live down their bad reputation and reform their bad character. All the circumstances of a case must be taken into account, including the time since the conviction was recorded, in assessing a person's reputation and character". 26 The discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). In this case the objectives are those set out in s.4 of the Act, including paragraph (e). 27 In Z v Director General, Department of Transport at paragraph 38 Deputy President Hennessy stated the following in respect of this objective so far as it relates to bus drivers: "In this case the relevant circumstances include community expectations of bus and hire car drivers to provide safe, reliable and efficient passenger transport services". 28 She went on the cite the following passage from the decision of O'Connor J in Bedi v The Director General of Transport [1999] NSWADT 51 at [36]: "As noted, bus transport is less intimate. Drivers are required to follow prescribed routes with numerous stops. 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 considered approach might be taken in relation to the restoration of a bus authority (subject to medical clearance)". 29 In accordance with these cases and other relevant authorities, in my opinion, the relevant factors in this case include the following: (a) The nature and extent of Mr Carter's criminal record; (b) The time since his last conviction; (c) The likelihood of re-offending having regard to any evidence of contrition and good character; and (d) The nature of the duties he is required to perform as a bus driver. 30 Mr Carter's criminal history extends over a period of 2 ½ years and involves convictions for dishonesty and possession of prohibited drugs. His last offence was committed in June 2000. He was under a good behaviour bond, until earlier this year, for offences committed in late 1998. This bond having been breached several times by further offences. 31 However, the criminal history must be considered in light of his drug addiction at that time and his feud with his brother, who was also at that time a heroin addict. The evidence is that since February 2000 Mr Carter has been on a methadone program and has not used any prohibited drugs. He as progressed well on that program but remains on methadone. 32 Mr Wozniak for the Department argued that methadone was a substitute for heroin and this was sufficient grounds for the Director to refuse Mr Carter's application as this would be contrary to community expectations. I reject that argument as there was no evidence put before the Tribunal on the amount of methadone being taken by Mr Carter, how often if was taken and the effects of such dosages on his day to day living. It is clearly a relevant issue that needs to be considered by the Director General, however it must be done as part of considering all the relevant factual and expert medical evidence of each particular case. At the hearing it was agreed that the matter should be re-listed for hearing if the Tribunal formed the view, having regard to the other evidence, that the decision of the Director General was not the correct and preferred decision. The purpose of the relisting would be to enable Mr Carter and the Department to tender additional evidence in this regard. 33 This is not necessary as in my opinion, this evidence will not detract from the conclusions that I have come to from the facts already established. That is, in my opinion, on balance, this evidence shows that Mr Carter's offences include dishonesty, they were committed over a two year period, which was relevantly recent with the most recent offence having been committed in June 2000. At this time Mr Carter was not a heroin user, but he provided no explanation of the circumstances to it. I accept that Mr Carter recognises that his conduct was stupid but I am concerned that he appears not to have been fully frank about his criminal record to his referees or that he appreciates the seriousness of the latter offences. 34 Accordingly, in my opinion, in this case at this time, the decision by the Director General is the correct and preferable decision. This conclusion does not detract from the efforts that have been made by Mr Carter to restore his reputation and good character and should he make a further application for a driver's authority, all relevant issues can be regarded a fresh by the Director General having regard to what has occurred in the intervening period and any other submissions Mr Carter may wish to make. Order The decision of the Director General to refuse Mr Carter's application for a driver's authority is affirmed. 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