Victorian Civil and Administrative Tribunal|2011-02-28

The Applicant held a driver certificate (as it then was) from 1994 until 22 May 1997. On 22 May 1997, the Applicant's driver certificate was revoked due to complaints about the Applicant received from members of the public and several theft offences for which the Applicant was found guilty. (The revocation was subsequently varied to a two year suspension, with the Applicant's driver certificate to be reinstated on 23 May 1999 providing the Applicant did not drive a taxi-cab or commit any serious offences during that period).

The Applicant requested reinstatement of his driver certificate on 1 June 1999. By letter dated 3 June 1999, the Director revoked the Applicant's driver certificate due to the Applicant having received numerous infringements for driving a taxi-cab whilst his driver certificate was suspended.

On 8 May 2003, the Applicant's driver certificate was suspended due to complaints received from members of the public, the previous revocation of the Applicant's driver certificate and numerous fines that were issued to the Applicant for driving a taxi-cab while his driver certificate was suspended. The Applicant's driver certificate was subsequently revoked on 18 June 2003.

The Applicant again applied for a driver certificate on 23 December 2005. On 7 February 2006, his application was refused due to his previous revocation for inappropriate conversations and behaviour and criminal matters, his traffic and driving history, infringements received for driving a taxi without a driver certificate, and failing to declare his offence history on his application.

On 1 July 2007, amendments to the Act introduced a new accreditation regime for taxi industry participants, whereby driver certificates were thereafter deemed to be driver accreditations. The Applicant applied for a driver accreditation on 7 September 2007.

By letter dated 13 February 2008 the Director notified the Applicant that he was considering refusing his application on the grounds that he had been found guilty of category 2 and 3 offences and may not meet the public care objective, and invited the Applicant to make a submission as to why he should not do so. The Applicant made a submission dated 18 February 2008.

By letter dated 27 February 2008 the Director refused the application and disqualified the Applicant from reapplying for driver accreditation for two years. ...

The Applicant again applied for driver accreditation on 23 February 2010 (due to the disqualification period ending on 27 February 2010, the application wasn't processed until after this date). The Applicant's National Police Certificate dated 18 March 2010, a copy of which was attached to the Accreditation Application 2010, showed that on 30 March 2009 at the Broadmeadows Magistrates' Court, the Applicant was found guilty of unlawful assault. He was sentenced to three months imprisonment, to be served concurrently by way of an intensive correction order.

Unlawful assault is a category 3 offence pursuant to section 86 of the Act.

Then it refers to the notification of the decision which I have referred to.

The matters referred to in the Section 49 statement can be briefly summarised as six theft offences, the last of which was some nine years ago. The applicant stated that those offences were shoplifting of food. He says that his shoplifting was below the $100 mark. He said he shoplifted for food for his family. There were driving offences and one offence for careless driving. That brings me to the assault offence which was committed in December 2008. The circumstances of that offence were that at the time the applicant's driver accreditation was suspended due to the fact that the Director was not satisfied at that time that the applicant would not re-offend. As a result he put the applicant on a type of probation.
The assault offence occurred as I have stated in December 2008. The circumstances were that the applicant was waiting in a queue at the Meadow Heights Post Office, it being the Christmas period the post office was full and busy. He said he waited in the queue for approximately 15 minutes and the queue did not advance. He noticed that a post office employee was standing behind the counter and not serving. As a result he talked to the post office employee and the applicant alleges that the post office employee swore at him and stated there may have been some spitting, on the applicant's part however that is not clear. In any event at a later time the applicant said that he pretended to spit at the postal employee and saliva did come out of his mouth. This is clearly an assault as found by the Magistrate, it is not for me to second guess the Magistrate to find whether or not it was an assault. The decision was given at Broadmeadows on 30 September 2009. The penalty that was handed out by the Magistrate as a result of the assault was, the applicant was sentenced to jail for three months and put on an intensive correction order so that he did not have to be physically locked in jail. Further based on the Magistrate's decision and the evidence I heard, I find that the applicant did spit at the post office employee.
Ms Bennett who appeared for the respondent had pointed out that the sentence given by the Magistrate is a very serious punishment and there are a number of lesser punishments that the Magistrate could have handed out. The only greater punishment that could have been handed out was a jail term which was served. I accept those matters. I thus accept that the assault which the applicant has been convicted of committing is a very serious matter.
The applicant's personal circumstances are that he is married with six children, five who are at school and one is at university. Some go to a private school so he has huge financial obligations. He said that he has met these financial obligations by increasing his mortgage over a period of time. I find it somewhat difficult to understand how, even after taking that serious course, he has managed to meet his financial needs, however I do not have to concern myself with that.
The applicant has anger, matrimonial, cultural and financial problems. He has addressed some of these concerns. He has in the last three years had counselling sessions with an Indiyana Saad, who has been a counsellor for that time and has recently passed a psychologist's degree. She has made a statement which has been tendered in evidence. She indicates that there have been threats by his (the applicant's) wife to call the police against him and she also indicates that the applicant is ashamed of what he has done.
In paragraph 12 of her statement she gives some explanation as to why the applicant has acted like he did in the Meadow Heights Post Office. She states:

I recall Mr El-Sayed informing me of an unlawful assault charge (spitting) that he was accused with in Meadow Heights in 2009. Mr El-Sayed informed me of the details surrounding the incident. I understood that Mr El-Sayed angrily expressed his anger in a typical Lebanese manner of spitting without discharging any saliva. Such an action is typically expressed when an inferior person is suggesting that another persons should be ashamed of their actions.

I put this statement to Mr Horvath who appears for the applicant and he stated that the term inferior person is just another term for somebody whose actions are not proper. I disagree with that interpretation. The words used by Mr Sayed are (as reported by Ms Saad) used very clearly and in my view it can only be interpreted to mean that the applicant took the post office employee to be an inferior person. I find it very very disturbing that somebody would suggest that any person in this community is an inferior person. It is stomach churning. To make it worse, the applicant used that view to justify his action of spitting.
As well as attending Ms Saad for approximately three years, in September of last year the applicant also attended a three hour course on anger management. This was at the suggestion of the respondent. There is a certificate from an organisation called Keeping It Cool and is supported by a letter of Eugenia Castro. I find it very difficult to understand how a three hour anger management course can cure any anger management problem, however I take the certificate on face value.
The jurisdiction to review a decision of the respondent comes from Section 169O of the Transport Act 1983 which I will refer to as the Act. Sub-section (1) sets out decisions that are reviewable by this Tribunal and indeed the fact that this is associated with a Category 3 offence, namely assault, it becomes reviewable by this Tribunal. Sub-sections (3) to (5) state as follows:

(3) VCAT must not make a decision under subsection (1) unless VCAT is satisfied that the decision is appropriate having regard to the public care objective.

(4) VCAT must not make a decision under this section to issue, renew or reinstate an accreditation unless VCAT is satisfied of the matters set out in section 169(1)(b).

(5) In making a decision under this section on a matter involving a disqualifying offence VCAT may have regard to any matter to which a consideration in section 169C(3)(b) would apply.

I find these sections quite curious because all the matters in sub-sections (3) and (4) are referred to in sub-section (5) of Section 169C(3)(b). In relation to the matters in Section 169(1)(b), the applicant is technically competent, sufficiently competent to be able to provide service. Clearly that is not an issue here. The issue in part here is whether the applicant is suitable in other respects to provide service which is Section 169(1)(b)(ii) requires. The criteria for defining suitability is referred to in Section 169C(3)(b). However I do not accept the submission of Ms Bennett that the public care objectives are more important than they would be otherwise because they are referred to twice in the Act. However I do agree that such objectives are very important
The first matter that needs to be considered in Section 169C(3)(a) is the public care objective which as I have stated are in Section 164 of the Act. Section 164(1) reads as follows:

(1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of commercial bus services and local bus services -

to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

The question of safety and comfort is not only physical safety but the mental safety that passengers may feel. In this particular instance the applicant has obviously well overstepped the mark of what is acceptable in a situation in this community. All of us have had experiences of waiting in line and becoming frustrated but do not take the type of action that the applicant took in the post office in December 2008. As Ms Bennett has pointed out a taxi driver is often required to deal with very difficult people, they may be drunk, they may be abusive or they may have some cognitive problems. It is the skill of a taxi driver to calm those sort of people down, not to aggravate them. I am concerned bearing in mind the actions of the applicant in December 2008 that the question of public safety may be a real issue. Further, I take into account but I do not place a lot of weight on the fact that the applicant has had driving offences, one for careless driving. Certainly safety refers to the mental as well as to the physical and I also take into account while not putting great weight on the careless driving it is something that I have concern about however it did happen a number of years ago.
In relation to the question of safety I take into account the applicant's attitude. Ms Bennett has correctly pointed out to me that in a letter dated 29 June 2006 sent to the Director by the applicant in order to have his accreditation restored, he stated:

I believe that I am a changed person and any conditions imposed upon me if I were reissued with a licence will be accepted.

I also believe that if I were reissued with a licence and god forbid something were to happen as a result of my own making that it will be a final opportunity for my driving ...........

There were similar sentiments expressed in a letter of 2010. One wonders what strength can be put on the applicant's words particularly because of the fact that in 2006 he said that he had learnt his lesson and it was apparently not so. In a later letter he stated the same thing. Thus I am concerned that the applicant has not learnt his lesson.
I am also concerned that the pressures that the applicant has in his life and has had are still in existence. He has clearly marital problems and I have not heard any evidence as to the way he copes with those or to the way he hopes to fix those problems. Thus I assume those problems are still continuing. Further, he has a cultural problem which put pressure on him and I have referred to the paragraph in Ms Saad's statement which indicates those type of cultural problems and finally he has financial problems. I have no difficulty accepting the applicant does have financial problems but even if he obtained a taxi accreditation those problems would only to some extent be solved bearing in mind the large amounts of private school fees he must pay, I think the accreditation would only go a small way towards helping the problem. I am told that one of his children goes to Essendon and Penleigh Grammar School. The problems from which the applicant was suffering in December 2008 are largely still in existence. Thus looking at the public care objectives referred to in Section 164(1) I am of the view that the public safety and amenity would be detrimentally affected if an accreditation was granted.
Section 164(1)(b) refers to the fact of dishonesty. It states that taxi driving must be carried out in a manner that is not fraudulent or dishonest. The applicant has had six offences for shoplifting as I have previously stated. They were all some time ago, the latest being approximately nine years ago. Given those circumstances, while I find that disturbing, I cannot be satisfied that the applicant would be scrupulously honest, however if that was all I'm sure we would not be at the Tribunal today because he does appear to have been honest for the last nine years.
Section 169C(3)(b) sets out a number of matters that I should take into account where there is relevantly a Category 2 or 3 offence. The first is the nature and gravity of the offence and its relevance to the service provided by the applicant. I consider this offence (ie the assault) to be very serious. Clearly there are other more serious offences and as Mr Horvath, solicitor for the applicant has pointed out. This is a Category 3 offence and Category 1 and 2 offences are far more serious. However when one considers that a taxi driver needs to deal with members of the public on an hour to hour basis it would not take very much for somebody who is prone to anger and who has a lot of pressures in their life to do something that could be very serious, as the applicant did in December 2008 at the Meadow Heights Post Office. Doing a three hour course in anger management I do not believe would be sufficient to fix this problem. Neither am I satisfied that the work that the applicant has done with Ms Saad is sufficient to fix this problem.
The next matter that I must take into account is the period of time since the applicant committed the offence. The offence as I stated was committed in December 2008. There is no evidence before me of any offences committed since that time and I take that into account but sub-section (3) requires me to take into account whether there is a finding of guilt or conviction recorded. In this case the applicant pleaded guilty, a conviction was recorded and the penalties imposed, as I have previously mentioned. I regard the offence as very serious although it would have been possible to have a more serious penalty and I think that is the matter which I have already dealt with in sub-section (4) - sentence imposed on the offender.
Sub-section (5) requires me to consider the age of the applicant when the offence was committed. As I have previously stated the applicant was born on the 3rd of February 1964, therefore when the offence was committed he would have been 44 years of age. That is an age where he has passed his youth and he should have had the maturity to know what was right and wrong and to keep his anger inside of him. He should have realised that post offices are busy at Christmas time and sometimes one just needs to wait.
Sub-sections (6) and (7) are not relevant. Sub-section (8) is the applicant's behaviour since committing the offence. The applicant to my knowledge has not done anything wrong since committing this offence and I certainly take that into account.
However there has been considerable minimising of the offence by the applicant and trying to place the blame on others rather than himself. Sub-section (9) is the likelihood of the applicant committing another such offence in the future particularly any future threat to a child or vulnerable person. At the time of this offence in December 2008 the applicant was on a type of probation, that is he was told that if he did not commit any more offences for two years it was likely he could be reaccredited. Yet he committed the offence in 2008. This demonstrates to me that it is very difficult to judge the likelihood of whether the applicant would commit any further offences, however looking at the applicant's conduct since he has been a taxi driver I conclude that there is very great likelihood he may commit further offences particularly dealing with difficult passengers. As I have previously stated I am very concerned as to the cultural matter that was raised by Mr Sayed. If he has that cultural thought that is something that may indeed have an affect on the likelihood of future offences.
Sub-section (10) is any information given by the applicant. I take into account the applicant has told me that he will not commit these offences again, he has learnt his lesson and he has had an anger management course which he believes has worked through. However in saying that does not convince me that it is in fact true particularly as he said similar things in 2006.
Given all these circumstances I have come to the conclusion that the Director's decision is a correct decision to refuse the applicant's application for driver accreditation and disqualify him from applying for further accreditation for three years. In coming to this conclusion I have taken into account in particular that the last offence was committed while he was under suspension. That should have been a period where he should have been particularly careful in relation to his actions. Given those circumstances I will affirm the decision of the respondent.

El Sayed v Director of Public Transport (Occupational and Business Regulation) [2011] VCAT 367 (28 February 2011)

El Sayed v Director of Public Transport

At a glance

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Decision date

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Judgment (25 paragraphs)

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Cases Cited (1)

El Sayed v Director of Public Transport (Occupational and Business Regulation) [2011] VCAT 367 (28 February 2011)