Victorian Civil and Administrative Tribunal|2012-03-19

The Applicant committed the offence at the age of 17. He was therefore a young offender at the time that the offence was committed.

(vi) in relation to any sexual offence, the age of any victim

The age of the victim at the time of the offence was 13 years of age. However, the Secretary acknowledges the victim's admission that she lied about her age to the Applicant, telling him she was 16 years of age.

The offending conduct has not been decriminalised.

(viii) the applicant's behaviour since committing the offence

Since the category 1 offence, the Applicant has been found guilty of one further offence, being 'Drink driving - .05'.[12]

(ix) the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person

The Secretary acknowledges that there is no evidence to suggest that the Applicant will commit another such offence in the future nor pose any future threat to a child or vulnerable person.

The Secretary acknowledges that given:
- (a) The age of the category 1 offence;
- (b) The victim's admission that she lied about her age to the Applicant;
- (c) That the victim consented to sexual intercourse with him; and
- (d) That there has been no similar offending of any kind; and
- (e) There has been no incident or complaint made about the Applicant in the conduct of his duties as an accredited driver;

the Applicant would not pose an unjustifiable risk to the safety of persons using services driven by the Applicant.

In relation to s 169N(3)(c)(B), it is relevant that the Applicant has been accredited as a bus driver for almost four years, without incident or complaint; and this is the first time that his driver accreditation has been cancelled.
In relation to s 169N(3)(c)(ii), VCAT must consider whether it is in the public interest to reinstate the Applicant's driver accreditation. This criteria has been considered by Deputy President (as he then was) M F Macnamara:

...it cannot be right to say once there are serious blots on anyone's character, an accreditation application under this section must fail. There are other public interests which call for consideration and require some weight to be given to them in the balance, albeit that the public interest of the users of public transport is the predominant one. The public interest that I see here is the interest in offenders being encouraged to establish themselves as worthy citizens and people of good fame and reputation.[13]

In my view, the evidence supports the conclusion that, since the relevant offending, the Applicant has become a worthy citizen; has performed his duties as an accredited driver with distinction; and has otherwise made valuable contributions to the community.

Having regard to the matters set out above, I am satisfied that the Applicant has met all of the criteria in s 169N(3) of the Transport Act and accordingly I propose to order that his driver accreditation be reinstated.

[1] Which came into effect on 1 July 2007 pursuant to s 14 of the Transport Legislation (Further Amendment) Act 2006.

[2] NS v Director of Public Transport [2008] VCAT 856, [33].

[3] Refer Mr C Carli, MLA, Transport Legislation (Further Amendment) Bill, Legislative Assembly, 15 June 2006, p 2149.

[4] NS v Director of Public Transport [2008] VCAT 856, [17].

[5] Exhibit A Reference dated 20 February 2012.

[7] XFJ v Director of Public Transport [2010] VSC 319; upheld on appeal in Director of Public Transport v XFJ [2011] VSCA 302.

[9] [2010] VSC 319, [84], [85]; see also Director of Public Transport v XFJ [2011] VSCA 302 [44] per Maxwell P, with whom Mandie and Harper JJA agreed.

[10] [2010] VSC 319 [89]; [2011] VSCA 302 [44] per Maxwell P, with whom Mandie and Harper JJA agreed.

[12] In his initial application for accreditation dated 29/11/07 the Applicant cites 'drink driving .05 20 years ago'.

[13] FC v Director of Public Transport [2010] VCAT 357, [27].

Legislation (Further** **Amendment) Act 2006

BJC v Secretary to the Department of Transport (Occupational and Business Regulation) [2012] VCAT 316 (19 March 2012)

BJC v Secretary to the Department of Transport

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

BJC v Secretary to the Department of Transport (Occupational and Business Regulation) [2012] VCAT 316 (19 March 2012)