Gilliana v Director General Transport NSW [2012] NSWADT 28

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Gilliana v Director General Transport NSW [2012] NSWADT 28 Hearing dates: 6 February 2012 Decision date: 21 February 2012 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed Catchwords: Fit and proper; repute; criminal convictions Legislation Cited: Passenger Transport Act 1990 Cases Cited: Murray v Department of Transport and Infrastructure [2010] NSWADT 295 (13 December 2010) Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (23 December 2011) Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Nasour v Director-General, Transport NSW[2011] NSWADT 91 (4 May 2011) Category: Principal judgment Parties: Damian Gilliana (Applicant) Director General Transport NSW Representation: D Gilliana (Applicant in person) Smythe Wozniak Solicitors (Respondent) File Number(s): 113318

reasons for decision

Background 1This was an application for review by the applicant, Mr Gilliana, of the decision of the respondent, Transport for New South Wales, to refuse the applicant's application for an authority to be the driver of a private hire vehicle. The respondent's decision of 26 September 2011 was affirmed on internal review on 12 October 2011. The applicant subsequently applied for review by the tribunal. The applicant is currently employed by a private hire car company, as a customer relations officer, and has applied for an authority so that he may further participate in his current employment by being authorised to drive private hire vehicles. Further, he is concerned that without such an authority he may lose his employment. 2In deciding to refuse the applicant's application, the respondent considered the applicant's traffic record and criminal record. In particular the respondent placed weight on the conviction, and sentencing, of the applicant, by the Sydney District Court, for the offences of aggravated break and enter in company with intent to detain person for advantage; aggravated break and enter and steal -deprive persons of liberty; conspiracy to detain - such offences occurring in December 2004 and December/January 2005. The applicant was interviewed by the police in relation to these offences in 2007, and in 2009 he pleaded guilty, and was sentenced by the District Court to a period of imprisonment. He received sentences of imprisonment for all offences, to be served concurrently, and the maximum sentence was an 18 months non-parole period with a further 12 month parole period - the parole period was from 26 February 2011 to 25 February 2012. The evidence is that he was released to parole in February 2011 and the parole period is to end on 24 February 2012, and parole has been successful to date with no further offences being committed. 3The applicant pleaded guilty to the criminal charges before the Sydney District Court. The Facts sheet presented to the Court for the charges, to which he pleaded guilty (and thereby admitted the Facts as stated) indicates that the facts of the offences were as follows - there was a plan formulated by various co-accused of the applicant, between October and November 2004, to commit a break enter and steal on a grocery shop, located within a shopping centre, and also on the home of the owner of that business. The intention was to obtain keys and alarm codes for the business so as to be able to steal monies from the safe within the premises. Surveillance was conducted by the co-accused on the owner and various employees of the grocery business. At a later stage one of the co-accused indicated that they wished to seek the assistance of a person, subsequently identified as the applicant. The plan was for the applicant to participate in committing a home invasion and kidnapping of the owner of the grocery shop, at his home. The plan was to break into the house, take hold of the owner, tie him up, take the keys to the grocery shop and get the alarm codes to the shop. Subsequently, in December 2004, the applicant in company with the co-accused, went to the home of the owner of the grocery shop. They kicked in the door in and entered the premises and detained, at knifepoint, three occupants of the premises. After detaining these three occupants the accused persons realised they had entered two wrong locations within the premises as the house had been divided into a number of flatettes. They then left the premises taking some property belonging to the occupants. No injuries were sustained by any of the people detained during the "home invasion". 4The facts of the further charge, conspiracy to detain, were that between December 2004 and January 2005 the applicant, with co-accused, engaged in further planning, and acts to progress the plan, to detain and rob the owner of the grocery shop. On one occasion they waited in the loading dock at the grocery store, the applicant being seated in a vehicle holding an aluminium baseball bat, while the co-accused had a bag containing balaclavas, gloves, knives, knuckledusters, cable ties and duct tape. The items were to be utilised if the opportunity arose to abduct the owner of the premises and obtain from him the required codes to access the premises and the safe within the premises and steal money contained therein. There was an agreement between the applicant and the co-accused to commit this offence and divide the proceeds. The owner did not appear, despite the applicant and the co-accused waiting for several hours. On another occasion they also waited for an opportunity to abduct the owner of the grocery store. After these two unsuccessful attempts, the applicant did not take part in the subsequent robbery of the owner of the grocery store which occurred later in January 2005. On Thursday, 22 November 2007 police interviewed the applicant about the "home invasion" and he was placed under arrest and cautioned, he participated in a record of interview and admitted his part in the offences and subsequently pleaded guilty at the Court in 2009. The fact sheet states that although the applicant possessed a knife in his back pocket at the time of the offences, at no time was it produced by the applicant, and he further stated he did not receive any proceeds from the offences. He admitted being part of conducting surveillance of the owner although he stated he did not intend to participate in the robbery which the co-accused were planning to commit. However, it is noted that he pleaded guilty to the charge of conspiracy to detain.