Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Howell v Macquarie University [2008] NSWCA 26
Source
Original judgment source is linked above.
Catchwords
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70Howell v Macquarie University [2008] NSWCA 26Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28, (1955) 93 CLR 127Jones v Dunkel (1959) 101 CLR 298
Joseph v Commissioner of Police, New South Wales Police Force [2017]
Lal v Director-General, Department of Transport [2001] NSWADT 74
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
The applicant Mr Michael Eskander applied to this tribunal on 27 November 2018 for review of a decision by the respondent pursuant to its disciplinary powers under the Tow Truck Industry Act 1998 (TTI Act). The applicant had since 2012 held tow truck driver certificate No. 47491 which was due to expire on 19 March 2019. He had been sent a show cause notice on 26 October 2018, to which he had responded on 13 November 2018. On 21 November 2018 the respondent issued a notice of determination disqualifying the applicant from holding a tow truck driver's licence or certificate for a period of 5 years. The tribunal granted a stay of that determination on 3 December 2018.
The respondent's ground for taking disciplinary action arose under s 42(1)(f) of the TTI Act, that the applicant is no longer a fit and proper person to hold a tow truck licence or certificate. The conduct on which the respondent based its conclusion occurred on 2 February 2017, when in the course of performing his duties as a tow truck driver he had a violent altercation with a member of the public about his parking his tow truck within a "No Stopping" area next to a pedestrian crossing near Narrabeen Primary School shortly before 3 pm on a school day. The applicant took exception to the bystander's calling the police as a result of the dangerous parking location he had selected.
As a consequence of his conduct the applicant was convicted on 12 January 2018 in Manly Local Court of assault occasioning actual bodily harm under the Crimes Act 1900, issued with a s 9 good behaviour bond for 12 months and fined $500.
[2]
Applicable legislation
Section 41 of the TTI Act empowers the Secretary of the Department to take disciplinary action against a licensee or certified driver. Such action may include "disqualify[ing] a licensee or certified driver from holding a licence or drivers certificate for a specified period" (s 41(2)(c)).
The Secretary may take disciplinary action for any one of a number of reasons, including that "the Secretary is of the opinion that the licensee or certified driver is no longer a fit and proper person to hold a licence or drivers certificate, respectively" (s 42(1)(f)). That is the reason relied on in the present case. The issue in this application is thus whether the applicant is a fit and proper person to hold a tow truck driver certificate.
[3]
The evidence
Despite two tribunal directions, on 3 December 2018 and 12 February 2019 respectively, to file the material on which he intended to rely, the applicant failed to do so. At the hearing he did, however, tender a bundle of documents (exhibit A1) that included a letter signed by him and dated 24 March 2019 which set out a number of statements of fact as well as some comments in the nature of submissions. It can be treated as his witness statement.
In it he stated that he was writing the letter seeking a second chance to continue his role as a tow truck driver. The incident that occurred was very much out of character, and resulted from his being under a great deal of pressure as his mother had nearly suffered a stroke and had been diagnosed with a serious heart condition. His father was diagnosed with cancer and was still dealing with it to this day. Because of the stress occasioned by his parents' health and other issues at the time, he had carried himself badly on the day of the incident. He was not proud of what happened and was not seeking to excuse his behaviour.
He had been in the towing industry for over seven years now, and in that time believed he had conducted himself professionally and followed the laws and rules accordingly. He had proved himself to his employers and clients to be a responsible and reliable hard worker. Throughout those years he had trained tow truck drivers and had shown them the responsibility of being in the industry and how important safety and concern for others are. He takes pride in helping other staff members and in being part of the team. He enjoys his job and sincerely regrets his actions that occurred that day and knows deep within his heart that behaviour of that kind will never occur again and is unacceptable.
He had spoken to his family and partner a number of times since the incident had occurred two years ago and had decided to attend therapy to help him deal with his stress and generally work on himself. Those sessions that he was currently attending had given him a different outlook on how to deal with his current circumstances. He had also learned many different methods and tools for dealing with his problems, although he feels that he still has a great deal to learn and gain from his weekly therapy sessions.
The situation had put a great deal of pressure on his family, his partner and himself because of not knowing what the future holds for them. If he were to lose his licence it would place more pressure on him, his parents and his partner, as he assists financially paying the mortgage on his parents' home. He and his partner are looking to start a family, and to achieve that they want stability for themselves and their children.
[4]
Applicant's submissions
The applicant lodged no written submissions other than those contained in the statement referred to above, and indicated at the hearing that he did not propose to make any submissions at length. He simply wished to make a couple of comments.
He wanted to emphasize the psychologist's comments about the other issues he had been facing at home in relation to his parents' health.
He acknowledged that he had made a mistake but was asking for another chance.
[5]
Consideration
This tribunal has jurisdiction to review the respondent's determination by reason of s 9 of the Administrative Decisions Review Act 1997 (ADR Act) and s 45 of the TTI Act. Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).
The tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60].
[6]
Fit and proper person
The respondent in this case relies on the Secretary's power to take disciplinary action under s 42(1)(f) against a licensee or certificate holder in the tow truck industry if it is considered that he or she is "no longer a fit and proper person" to hold the authority in question. The meaning of the phrase "fit and proper person" in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were summarized by the tribunal's Appeal Panel in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, [58], [73], [77], following Montgomery SM's reasons at first instance (Austin v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 244), as follows:
(1) The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground.
(2) "Fit" with respect to an office is said to involve honesty, knowledge and ability.
(3) The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged in and the ends to be served by those activities.
(4) Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur.
(5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question.
(6) The expression meant that an applicant needed to show not only that he or she has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he or she is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.
The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]. In the context of the tow truck industry, any consideration of the public interest must take account of the industry's history of crime and violence that created a need for the present legislation. A review of the industry commissioned by the then State government found a pervasive culture of violence, intimidation, unconscionable conduct and dishonesty (Review of the Tow Truck Industry in New South Wales by the Hon. Peter Anderson, Final Report December 1998). Mr Anderson's interim report provided the basis for the Tow Truck Industry Bill 1998. In his second reading speech, the Minister for Transport said that the report had "described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage". In his final report, Mr Anderson noted that the reforms adopted in that Bill (now the TTI Act) represented a unanimous commitment on the part of the government, the opposition, other parties and all independent members of the Legislature. The reforms included measures to "Increase the standards for entry to and removal from the industry" (para 1.3), and the second reading speech referred to the bill's provisions to "tighten fit and proper requirements for those who can be involved in the industry" as being among the legislation's primary objectives.
[7]
Possible mitigating factors
Any plausible mitigating factors are also to be considered. In its written submissions before the hearing, the respondent submitted that as the applicant had chosen to file no material in this application, the principles in Jones v Dunkel (1959) 101 CLR 298 should apply. Indeed, in Howell v Macquarie University [2008] NSWCA 26, [98], the Court of Appeal held that those principles had some application in tribunal hearings:
In other words, in a civil trial by judge alone Jones v Dunkel licences, but does not compel, the drawing of inferences when a witness is not called. Whether either or both of the inferences are actually drawn is part of the trial judge's task of weighing the evidence. The same applies under the loosened procedural and evidentiary regime that section 73 ADT Act [Administrative Decisions Tribunal Act 1997] requires the Tribunal to adopt.
Although the applicant did fail to file any material despite two tribunal directions to do so, at the hearing he tendered some documentary material relevant to the issues (exhibit A1). I therefore do not think Jones v Dunkel is of assistance in this case.
Accordingly, I accept the applicant's evidence, and that of Ms Kefalidis, that he was at the time of the 2017 offence under stress and pressure as a result of family problems with his parents being in very poor health. But that hardly suffices to mitigate the seriousness of an assault of this nature on a bystander. In the criminal proceedings the applicant sought to portray himself as the victim in the altercation, an attempt that was disbelieved and dismissed by the District Court. At the tribunal hearing the applicant did not take that position, but did maintain that he felt he had been attacked. It is true that it was Mr S**** who initiated the encounter by telling the applicant he was dangerously parked. As he was working across the street on his removal van at the time, it is possible that in doing so he was shouting. And most Australians do not altogether appreciate being reported to the police, even if (or perhaps especially if) they know they deserve it.
But the evidence is clear that, whatever his feelings might have been at that stage, it was Mr Eskander who escalated for encounter into violence by marching across the street carrying a steel bar, shouting at the victim and positioning himself a couple of inches from his face. I accept that the applicant was at the time using the steel bar to brace the wheels of the disabled vehicle, and it is not suggested that he was brandishing the bar or holding it in a threatening way. Nevertheless, with his aggressive tone and larger, stronger build than Mr S****, he would have put the latter in fear for his safety - with good reason, as Mr Eskander then proceeded to belabour him, breaking his glasses and causing injuries requiring medical treatment.
[8]
Conclusion
Even so, it is not possible at this stage to disregard, or diminish the seriousness of, his conduct, especially as it occurred in the course of his work in the licensed activity. He asks for "a second chance", but the granting of second chances is not a valid consideration under the TTI Act. I conclude that the correct and preferable decision is to affirm the applicant's disqualification from holding a tow truck driver licence or certificate, but in view of the more recent evidence, the period of disqualification should be reduced from 5 years to 19 months. The determination under review is to be varied accordingly.
As the applicant is the only employee of Mr Almond's tow truck business, the disqualification is to be stayed until 30 April 2019. The stay is to enable Mr Almond to make other arrangements.
[9]
Orders
1. The determination under review is varied as set out in (2) and (3) below.
2. The period during which the applicant is disqualified from holding a tow truck driver licence or certificate is reduced from 5 years to 19 months.
3. The disqualification is stayed until 30 April 2019.
[10]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 April 2019
Towing had been his life and passion and as his sole source of income. It is the only thing he knows and enjoys. Being able to give satisfaction to his employer and clients plays a very big role in his life. He had received much good feedback from clients and his bosses. The offence was a one-off event, which he acknowledges should never have happened.
In cross-examination the applicant was asked about the judge's comments when dismissing his District Court all-grounds appeal. His Honour had said he did not believe the applicant's claim that he had been the victim in the struggle, which he regarded as a "fudge", and considered that the applicant was the aggressor. He also commented that the applicant had been fortunate to receive such a light penalty. The applicant acknowledged that the judge had made those comments.
Asked why he had arranged to see a psychologist, he said he had wanted a chance to explain why he thought the judge had expressed those comments in that way. He later thought he could have handled the confrontation differently and felt he might have problems that he had to work on. He also acknowledged that he had received a s 10 discharge on a charge of common assault at Parramatta Local Court in 2012, adding that he had made mistakes, which was why he had entered therapy.
He said the crossing controller had told him he could park there. He had also told the police, as well as the victim, Mr Conway S**** that the controller had approved his parking in the no stopping zone. He admitted he had not mentioned that approval in any of his statements, but said he had not been able to locate the controller to ask him to be a witness. Sergeant Whitfield had described him as aggressive, but he felt that he had been attacked. He had wanted Mr S**** to show how he had behaved before the police had arrived. Nevertheless, he had made the wrong decision.
He agreed that he had approached Mr S**** holding a steel bar in his hand, but explained that he had been in the process of using it to brace the wheels of the towed vehicle he had been loading.
Asked whether he had claimed that Mr S**** had approached him, he replied that he had been loading the vehicle onto his truck and had apologized. Then asked whether he had been angry at the time, he replied that he had a right to ask Mr S**** a question. He did not agree that he had been yelling.
By way of re-examination, Mr Eskander said he had been there to do a job and had asked the crossing controller if it was all right to park there. He did not now know how to reach the controller, but as it was during school closing hours, the controller would have been on duty. Mr S**** had approached him first. He had said he could not move because he was still loading the truck, but would move in a few minutes.
The applicant also tendered a letter dated 21 March 2019 from a psychologist, Filomen Qasabian (part exhibit A1), which stated that the applicant had been referred to him in November 2018. While Mr Eskander had been aware that he had issues he needed to address, he realized that the most important of those was his anger and the way he managed it. His conviction over the altercation in February 2017 had jeopardized his tow truck licence, which he had held since 2012 and had been his only source of income to date.
The applicant said he respected the judge's decision and realized that it was a rude awakening for him. He was fully aware that his anger had caused him to come to that position and was now working actively to change his life so he would not repeat the experience. They were looking at the triggers and he was committed to working on them. "To date there are signs of improvement but he has a long way to go", Mr Qasabian said.
He attends his sessions diligently and would like to be able to continue to do so, as he reports that it has been helping him. With no income he would not be able to do so. He is aware that it is a long journey and he is committed to it. Mr Qasabian concluded, "He deserves a second chance before he is written off".
Also tendered was a letter dated 20 March 2019 from Ms Lesley Bostaki (part exhibit A1), which asserted that Mr Eskander did speak to the traffic controller managing the school crossing, as he had a car around the corner to pick up, and he takes the utmost care in his job to ensure 100 percent safety. The controller had said it was fine to park there. When he returned to the tow truck, a man from across the road approached him screaming and being abusive and saying it was illegal to park there. The man never gave Michael a chance to explain that he had spoken to the traffic controller who had said it was fine to park there.
Ms Bostaki had known the applicant for approximately 6 years and found him to be a very honest, trustworthy and helpful person, and an upstanding citizen at all times. She is a woman of mature age and he is a person she has been able to depend on to help her by fixing things around her home. He had done that of his own accord and never asked for payment. His parents had raised him as a respectable and responsible citizen, and his parents could be proud of him.
He is a hard worker and depends on his licence for work. He has gone out of his way to help people and is not a person who endangers anybody. On the contrary, he is a person who would rather help where possible and within the law. He wants to work and does not want to depend on Centrelink. He has been in the business for over 6 years and is well liked by his co-workers and employers. He has a great passion for towing and has helped her several times when her vehicle had broken down, without asking for payment.
A letter from his de facto partner, Christina Kefalidis, dated 18 March 2019 stated that she has been in the traffic controller industry for 9 years and has been the partner of the applicant for 6 years. She knows the applicant is fit to do his job and is a very responsible person. At no time would he ever put anybody at risk within his job or his private life. He has proven himself to be a very respectful and helpful person.
Michael had realized the severity of the offence and had taken it upon himself to ring the tow truck authority to inform them of the criminal record, and had sent all relevant documents to them. The lady he spoke to at the towing authority thanked him for his honesty and said normally they have to chase up such issues, and was very thankful for his honesty and assistance.
The applicant is a law-abiding person and is very upset about the incident. At the time he had been under a great deal of stress and pressure with family issues, as his parents are in poor health. He has been in the tow truck industry for over 7 years and has shown himself to be very responsible and helpful. He has received great feedback from clients and his boss regarding his attitude and helpfulness. To Michael it is not just a job, it is his passion and livelihood. She and Michael are looking to start a family and a stable family life. Without Michael having his towing licence, there would be an impact on his family, their family and future children.
Also in evidence was a letter dated 13 November 2018 from Mr Brenden Almond, a tow truck licensee operating under the business name of "Bullet Towing". He confirmed that the applicant is currently employed by his business as a tow truck driver and has been since 3 September 2018. His role has included operating a tilt tray to tow vehicles, on a full-time basis. His working hours are 7 am to 5 pm, Monday to Saturday inclusive.
The applicant is his only employee, and without him working for the business, Mr Almond would suffer hardship because of his current workload, especially as he had recently purchased a second-hand tilt tray so that they could undertake the heavy workload. Since he had known Michael, he had been respectful, courteous and an honest and hard-working person. He had never let Mr Almond down and Mr Almond was continually receiving positive feedback from customers and business associates about him.
Mr Almond was aware of the show cause notice in relation to the assault that took place on 2 February 2017. He was also aware that the applicant is remorseful for his actions on that particular day. As his employer, he is confident that Michael would not commit the same offence again, nor any other offence. He had assured Mr Almond that he would not conduct himself in that manner again. Michael had learned a great deal from what had happened.
The respondent called no oral evidence but relied on documentary evidence (exhibits R1 and R2).
It is not disputed that the applicant possesses the necessary knowledge and skill to operate a tow truck. The respondent's concerns arise chiefly from the applicant's conviction in January 2018 for assault occasioning actual bodily harm, for which he received a $500 fine and a s 9 12-months bond.
The police fact sheet for that offence relates that on 2 February 2017, the victim, Conway S****, was working as a removalist in Park Street, Narrabeen. His removalist truck was parked in the first available street parking spot on the western side of the street, some 20 m north of the Narrabeen Public School pedestrian crossing. At about 2.40 pm he noticed a flatbed tow truck parked in the no stopping zone across the street, with its front wheels parked on the pedestrian crossing. He was concerned with the location of the parked tow truck because of the time of day, which was close to the school pickup time, and the fact that the tow truck's parked location and size restricted visibility for pedestrians and vehicles approaching the pedestrian crossing.
A short time later he saw the applicant return to the tow truck and cross the street, approaching the applicant and saying words to the effect that "That's very dangerous to park there". The applicant had replied "Where do you expect me to park?". Mr S**** suggested that Mr Eskander park on the south side of the pedestrian crossing where there would have been greater visibility for pedestrians and vehicular traffic. Believing that the applicant would not move his vehicle, Mr S**** returned to his removalist work. After about 10 minutes, he observed that the tow truck had still not moved and therefore attempted to contact council rangers about the matter. As he was unable to make contact with them he contacted police at 2.55 pm.
A few minutes later, he saw the applicant crossing the road towards him, and yelling, "Did you call the police on me?", repeating that question a number of times. Mr S****replied, "Yes, you are parked dangerously, you have to move your truck". The applicant continued across the street, repeating the question, and positioned himself within a couple of inches of the victim's face. He believed the applicant was trying to intimidate him, but because there was a ramp extending back from his removalist truck directly behind him, he could not move away from Mr Eskander.
The fact sheet continues, "The exact events which occur next are unclear, however the victim states that the next thing he recalls his being on his back lying in the gutter with the accused person on top of him. The victim states the accused was trying to hit the victim to the facial area. A wrestle had ensued between the victim and the accused where the victim has rolled the accused off him with the victim stating he then used his own body weight to subdue the accused".
At about that time police arrived on the scene to see the two men wrestling behind the removal truck and separated them. Both parties were dishevelled and had torn clothing, and Mr S****'s prescription glasses were damaged. He also suffered a number of abrasions to the face and knee, as well as a number of red marks, bruising and swelling to the right side of his face, forehead and cheek. He sought medical treatment for the injuries sustained and needed new glasses.
Sergeant Simon Whitfield of Narrabeen police had responded to the radio call to attend at the scene. He observed that the applicant was "very vocal" towards Mr S**** and was shouting words to the effect of, "Not so tough now, are you, not so tough now the cops are here" and continued to yell at him, being told a number of times by Sgt. Whitfield to calm down, which he did after a minute or so. Sgt. Whitfield told the applicant his tow truck was parked illegally, and while he was aware that he had a job to do and that parking was difficult in the area, the location he had chosen was particularly dangerous as it blocked the view of the pedestrian crossing to traffic, especially as at that time of day the school was about to be dismissed and children might not be as aware when using a pedestrian crossing as they should be, making it even more dangerous. "Mr ESKANDER agreed that it may have been dangerous", the sergeant's statement continued, "and apologised for his actions". Both parties indicated that they did not wish to take the matter further.
In the assessment of fitness and propriety, criminal convictions can be of great importance, especially where the activity to be undertaken requires public confidence and reliance on the propriety and integrity of the licensed person. Thus the nature of the industry in which the person concerned wishes to operate affects consideration of whether the person is a "fit and proper person" to operate in that industry: Shuttleworth v Tow Truck Authority of New South Wales [2006] NSWADT 301, [35].
A finding of assault occasioning actual bodily harm must count seriously against the applicant's case and is an example of precisely the kind of conduct that the legislation, and in particular the fitness and propriety requirements, is intended to prevent. Mr Eskander's legal representatives at an earlier stage had pointed out that the penalty imposed suggested that the learned magistrate considered the offence to lie at the lower end of culpability. But that determination was made for a different purpose from that envisaged under the TTI Act.
Thus the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker: Barrett v Director-General, Department of Transport [2000] NSWADT 183, [49]. Further, the fact that the conduct occurred in the performance of the person's licensed occupation is an aggravating factor: Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [46].
In his evidence at the hearing, the applicant said that he had the approval of the school crossing controller to park where he did. Although the controller of course had no power to dispense with the motor traffic regulations, his giving some kind of acquiescence might have placed a somewhat different complexion on the incident. The applicant stated that he had told the police and Mr S**** that he had received the controller's approval, but there is no evidence to corroborate that claim. I do not think it can be accepted.
The applicant has held a tow truck driver certificate since 2012 and, as he points out, he has had no other contraventions arising from his work (subject to some traffic matters referred to below). He has, however, another assault offence on his record. On 17 October 2012 at Parramatta Local Court he received a s 10 discharge for common assault. Little evidence is available about the circumstances of that offence, other than the applicant's comment at the hearing that he had "made a mistake" on that occasion.
Nor does his traffic record (part exhibit R2) do him any great credit. Having received his provisional license in 2004, he already incurred a demerit points suspension in June 2007. He received a further demerit points suspension and 2007, fine default suspensions in 2008 and 2009, a demerit points suspension in 2009, a fine default suspension in 2010 (twice), three more fine default suspensions in 2011 and 2014 and a demerit points suspension in 2016 (not implemented, subject to good behaviour conditions). Two of his violations, in 2014 and 2016, were for towing a vehicle with an insecure or overhanging load or a load causing instability. There have been no traffic breaches recorded since March 2017. While it may not be unusual for a person who drives a truck for a living in the Sydney area to accumulate more infringements than a Sunday driver might, such a record does little to strengthen the applicant's case.
The applicant tendered three signed, recent character references, all from persons who are aware of his 2017 aggravated assault offence. None of these references were available to the primary decision-maker in this matter. Ms Kefalidis speaks highly of his honesty, character and sense of responsibility and says he has received much positive feedback from clients and his employer. She points out that he took it upon himself to inform the towing authority of his criminal record and sent them all relevant documents, being thanked by the staff for his honesty in doing so. She says they wish to settle down together, and while one might think that could affect her opinion of him, it also suggests that she feels safe in making a commitment to him. Ms Bostaki praises his helpfulness and work ethic.
His employer, Mr Almond, has found him to be respectful, courteous and an honest and hard-working employee. He has never let Mr Almond down and Mr Almond constantly receives positive feedback from customers and business associates about him. He is confident that the applicant has learned much from what happened and would not reoffend. The applicant is his only employee and he would suffer hardship if he could no longer work for the business.
The applicant also contends that he would suffer financial hardship if he were no longer able to work in the industry. Aged 31, he lives with his ailing parents and makes their mortgage payments for them. It is well settled, however, that hardship to an applicant cannot be treated as a relevant factor in licensing matters of this nature: Lal v Director-General, Department of Transport [2001] NSWADT 74.
As against that, in the two years since the assault offence his record has been unblemished and his traffic record has also improved. By all accounts he is remorseful about the events of 2 February 2017 and is determined that there will be no repetition. Apparently of his own motion, he sought the assistance of the psychologist, Mr Qasabian, in dealing with his anger management and other problems. The psychologist says he is fully aware that his anger had caused him to come to that position and is now working actively to change his life so that he does not repeat the experience. There are signs of improvement but he has a long way to go. Nevertheless, he is aware that it is a long journey and he is committed to it.