Haggar v Roads and Maritime Services

Applicable Law

1. The Passenger Transport Act 1990 (the Act) provides for the Respondent to issue authorities to individuals for such roles as bus drivers, taxi cab drivers and as in this instance - private hire vehicle drivers.
2. The objects of the Act as set out at section 4 include "(a) to require the accreditation or authorisation, by RMS, of the operators of and drivers involved in public passenger services and (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services…."
3. Section 40 of the Act provides for the issue of private hire vehicle driver authorities. Prior to issuing an authority, the RMS must be satisfied that: (a) 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 private hire vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle: (i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and (ii) in accordance with law and custom…...
4. Section 40E provides that the RMS may at any time vary, suspend or cancel any person's authority having regard to the purpose of authorisation under the Act.
5. The RMS has suspended and then cancelled Mr Haggar's authority having regard to the fact that it cannot make the attestation as required that Mr Haggar "is considered to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle,". The reason for this is that Mr Haggar was convicted of, and sentenced for, the offences in December 2016.
6. The Tribunal notes that most of the decided cases dealing with authorities under the Act, deal with taxi-driver authorities under section 33 of the Passenger Transport Act 1990. The provisions dealing with issuing an authority to a taxi driver, section 33 of the Act, are identical to those for hire vehicle drivers at section 40.
7. Throughout this decision, the Tribunal has relied upon the principles established by the Tribunal in dealing with taxi driver authorities, as being applicable to hire car drivers.

RMS' reasons

1. On internal review, RMS affirmed the decision to suspend Mr Haggar's authority for the following reasons. "Roads and Maritime has a continuing obligation under the Act, to ensure that persons authorised to drive public passenger vehicles are fit and proper persons with sufficient responsibility and aptitude to drive the vehicle in accordance with the conditions and standards under which the vehicle concerned is operated and in accordance with law and custom. The concept of 'fit and proper' in this context is one of the intrinsic nature of a driver, and goes to whether a driver is possessed of sufficient moral rectitude and character as to ensure that passengers (or prospective passengers) would feel comfortable in entrusting their safety to the driver. In your application for internal review you state, 1. The offences you were charged and convicted of occurred in 1989 and involved a child 2. You were aware of and mortified at the gravity of the offence you had committed 3. You confessed to the child's parents, your employer and your wife 4. You reported the offence to police however no action was taken at that time 5. You completed counselling and rebuilt your life including the completion of tertiary studies 6. You returned to the Salvation Army and performed your duties for 21 years 7. The circumstances of the length of time since 1989 before the offences were reported to the Royal Commission into Institutional Responses to Child Sexual Abuse and you being charged on 21 April 2015 I note your reference to excerpts from Dr Westmore's report of 4 December 2007 however I cannot place any weight on this without viewing the report. Similarly, I cannot place any weight on the excerpts from Dr Olav Nielssen's report of October 2016. I acknowledge that your self-reporting of your behaviour to the child's parents, your employer and later to the police shows you felt guilt and remorse. I also acknowledge that there have been no reports of reoffending since 1989. I acknowledge the positive character references provided by your wife Kerry Haggar, Paul Kinder of the Salvation Army, Rae Forrester and Greg Longhurst. But I cannot ignore the community's expectation of safety and the public resentment and anger in relation to sexual crimes against children. Parents would naturally feel worried and fearful of their children being in the company of a person convicted of these offences. As you know the duties of a private hire car driver can involve transporting children. I must therefore be cautious and recognise the priority in this decision is the public interest."

The Hearing

1. Mr Haggar's application was heard by the Tribunal on 27 July 2017. The matter proceeded on the basis that the application was to review the Respondent's decision to cancel Mr Haggar's authority - as opposed to the decision to suspend it.
2. There was no contest about the facts as set out by Mr Haggar. No witnesses were called. Both Mr Haggar and the Respondent made submissions to the Tribunal on the evidence set out in the documents before the Tribunal.

Material before the Tribunal 1. Mr Haggar's application for review of decision to suspend (amended to cancel) his hire vehicle driver authority; 2. The Respondent's section 58 documents. 3. Mr Haggar's materials in support of his application including: * Full reports from psychiatrists, Dr Bruce Westmore December 2007 and Dr Olav Nielssen October 2016; * Character references from Kerry Haggar, Paul Kinder of the Salvation Army, Rae Forrester and Greg Longhurst. 1. Documents from the District Court proceedings.

Mr Haggar's submissions

1. Mr Haggar relied upon his statements in support of his application and the references provided by his wife Kerry Haggar, Major Paul Kinder of the Salvation Army, Ms Rae Forrester of the Leichardt Celebrity Brass and Mr Greg Longhurst his current hire vehicle provider. Mr Longhurst also attended at the Tribunal to support Mr Haggar but he was not called upon to give evidence.

Mr Haggar's factual account

1. The Tribunal summarises the relevant events leading to RMS' cancelation of Mr Haggar's private hire vehicle authority.
2. In October 1989 Mr Haggar and his wife were Salvation Army officers in charge of the organisation's operations in Mudgee New South Wales. Mr Haggar inappropriately touched an 8-year-old girl. Mr Haggar reported his wrongdoing to a Salvation Army officer the following day, but no action was taken on this. In December 1989, Mr Haggar then confessed his wrongdoing to his wife, the parents of the child and his superiors within the Salvation Army.
3. In February 1990 Mr Haggar and his wife were dismissed from the Salvation Army. They were relocated to Sydney by the Salvation Army. Later in 1990, Mr Haggar, accompanied by Captain James Condon of the Salvation Army presented himself to Parramatta Police Station and confessed to his crime. Mr Haggar reports that the Police decided that they would not pursue the matter as the victim's parents did not wish to subject their daughter to the process.
4. Mr Haggar then completed counselling. He also obtained a degree in Economics.
5. In January 1993 after Mr Haggar had undergone a psychiatric assessment with Dr Herb Smart at Rozelle Hospital, the Salvation Army re-accepted Mr Haggar and his wife as officers in the Salvation Army.
6. Mr Haggar and his wife worked in aged care at Riverview in Queensland and later in aged care centres in Balmain, Collaroy and Dee Why for 10 1/2 years. Mr Haggar was a nominee for the Balmain/Rozelle Citizen of the year award in 2000.
7. In the intervening period, Mr Haggar has also held other roles within the Salvation Army.
8. In 2007, the Salvation Army published a minute outlining its policies and procedures relating to the handling of sex offenders within the organisation. Mr Haggar was assessed by psychiatrist, Dr Bruce Westmore, in December 2007. Dr Westmore stated that: "Mr Haggar does not pose any significant risk to adults or minors. I think that the risk of Mr Haggar acting again in an inappropriate sexual way towards children is minimal if any risk is there at all."
9. Mr Haggar remained in the Salvation Army at that time.
10. In 2013, the Royal Commission into Institutional responses to child sexual abuse, requested information from the Salvation Army about Mr Haggar's offences in 1989. At the Salvation Army's request, Mr Haggar retired early. The Salvation Army then decided to reinvestigate his offence. The Salvation Army dismissed Mr Haggar for a second time. Mr Haggar is no longer connected to the Salvation Army.
11. Mr Haggar obtained his private hire vehicle driver authority in 2014. He has worked for Mr Greg Longhurst since 2015.
12. Mr Haggar had advised the RMS when charges were laid against him in April 2015. The RMS did not withdraw his driver authority immediately. However, after his conviction in December 2016, the RMS suspended his driver authority on 27 January 2017 and asked him to show cause why it should not be cancelled.
13. Mr Haggar submitted a response to the notice to show cause for cancellation of his authority on 16 February 2017. He was advised by letter dated 13 March 2017 that his driver authority had now been cancelled.

Mr Haggar's submissions

1. Mr Haggar relied on the documentary evidence before the Tribunal. He submitted that there was no evidence that the RMS had taken into account any of his character references, his good repute or any assessment of risk. There had been no attempt to analyse his moral character. There had been no recognition of his attempts to rehabilitate himself. RMS had not noted his attempts in 1989 and 1990 to have his wrongdoing dealt with through the criminal justice system. There had been no recognition of the psychiatric evidence that he had presented. Instead the Respondent had made assumptions about his character.
2. Mr Haggar acknowledged that the duties of a private hire vehicle driver can involve transporting children. However, this is a very minor part of the role and generally a child would be accompanied by a parent.
3. Mr Haggar offered that conditions could be imposed upon any authority given to him. These could include: 1. a probationary licence for a period, in line with the good behaviour bonds to which he is subject; and/ or 2. a condition that he not transport children alone.
4. Mr Haggar submitted that he had been driving for three years, excluding the last six months. There had been no problems with his work or behaviour. There were positive feedback messages from his customers in the documents. This could be verified by his employer, Mr Longhurst.
5. Mr Haggar told the Tribunal that in her sentencing comments, Judge Girdham stated that she was imposing a custodial sentence because of the seriousness of the events. She had acknowledged that Mr Haggar had reported his wrongdoing early and had gone to the police. She considered that his rehabilitation had been amply demonstrated.
6. Mr Haggar referred to the references before the Tribunal. He said that his most treasured reference was the one provided by his wife Kerry. She had stuck with him. She considered he would not reoffend.
7. Mr Haggar referred to the psychiatric reports from Dr Westmore and Dr Nielssen. Dr Westmore's report of December 2007 had assessed him as not posing any significant risk to adults or minors. Further, the report stated that the risk of Mr Haggar acting again in an inappropriate sexual way towards children is minimal if any risk is there at all. As a result of this risk assessment, the Salvation Army had permitted him to remain as a Salvation Army officer.
8. Dr Nielssen's report of 31 October 2016, obtained for the District Court proceedings, said that he had a low risk of further offences.
9. Mr Haggar acknowledged that the hire vehicle driving authority system was based on the need for public protection. He had worked hard to rehabilitate himself. The Tribunal should note that character is revealed over time by cumulative actions. Those who had known him and interacted with him could attest to his rehabilitated character. It should be noted that he had come forward and had been prepared to accept the consequences of his wrongdoing.
10. Mr Haggar referred to the victim impact statement put before the District Court in 2016. He said he did not wish to diminish the victim's experience. The victim had never mentioned the episode of his wrongdoing to anyone until a Royal Commission investigator had interviewed her and said that she might be entitled to compensation. She had been paid between $40,000-$50,000 by the Salvation Army. Previously she had not mentioned the events to anyone. She was then caused to relive the events. Mr Haggar considered that the blunt interaction of the judicial system had exacerbated her trauma.
11. Mr Haggar stated that the Tribunal should take into account that he had attended the Police in 1990 and confessed to his wrongdoing. He was turned away by the Police at that time. He commented that the only reason that the Tribunal was here today considering this matter was that the justice system had let him down. He had been sentenced in December 2016 according to the law at the time of his wrongdoing.
12. Mr Haggar then apologised for this comment. He explained that he grieved for the fact that his attempts to submit itself to the justice system in 1990 had not proceeded. He could only think of what might have happened if his case had been dealt with at that time. He felt as though he was the victim.
13. The Tribunal should also take into account that there was a heightened awareness now of these matters because of the Royal Commission. In this respect, the Judge had said that she felt she had to sentence him to prison.
14. Mr Haggar said that he had been placed at the forefront of the publicity about the Salvation Army and the Royal Commission. The Royal Commission had been very public about his circumstances. He was the lead for the Salvation Army and his name had been splashed across the media. Mr Haggar said that "no one else came out of the woodwork" and it rested on him.
15. Mr Haggar defended his nomination as "Citizen of the year". He had worked for over five years with very vulnerable homeless men.
16. He noted that his wife is a very competent woman in her own right. She had achieved a number of firsts in the Salvation Army - the first female divisional commander and the first female to be responsible for business administration in the Salvation Army.
17. All that he wanted was acknowledgement that he is now not the person he was 28 years ago when he had engaged in the wrongdoing.

The seriousness of the offences

1. The Respondent emphasised the fact that the hire vehicle driver authority system was part of a protective jurisdiction.
2. There were no mitigating factors to Mr Haggar's admitted sexual assault.
3. Mr Haggar's comments about the victim obtaining compensation demonstrated Mr Haggar's lack of comprehension of the effect of his behaviour. The reason that the Tribunal was considering the matter was because of Mr Haggar's criminal behaviour - not because the criminal justice system had let him down.
4. In Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 Waddell J said that convictions are cogent evidence of character/repute.
5. The Respondent relied on the reasoning of the Tribunal's Appeals Panel in AIC. The AIC decision required that a Tribunal take account how serious an offender's conduct had been.
6. The District Court had been required to sentence Mr Haggar on the law as it stood at the time of his offending in 1989. The current law is more stringent.

Public perception

1. In AIC, the Appeal Panel found that the Tribunal at first instance had erred by not having regard or not giving due weight in its reasons to the reasonable perception of a member of the travelling public in deciding whether the suspension decision was the correct and preferable one.
2. In Giri, Judicial Member Huntsman stated that repute is about what passengers might think fairly or unfairly of a driver holding an authority. See Giri v RMS [2012] NSWADT 241. Mr Haggar was still subject to a gaol sentence until December 2017 and Good Behaviour bonds until June 2021. It was appropriate to consider the public's view and to apply "the front page of the Daily Telegraph test" in assessing Mr Haggar's "good repute".
3. The Respondent questioned whether Mr Haggar would have received a "Citizen of the year award" had his convictions been known.
4. The Respondent stated that it was notable that the Salvation Army had now "washed its hands" of Mr Haggar.

The impact of the good behaviour bonds

1. The fact that Mr Haggar was subject to a custodial sentence for 12 months until December 2017 and to bonds for a period of three and a half years to June 2021, should render Mr Haggar not fit and proper at present.

Imposition of Conditions

1. In AIC at [12] the full Appeal Panel stated that the purpose of an authority is to attest to the applicant's character. There was no element of a fair go or seeing how an applicant might go in this test. The reference to attestation meant that it was not possible to put an applicant on probation or to impose conditions to keep the public safe. See Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [12], (AIC).
2. It was clear from the Court of Appeal's Litchfield decision that it was not appropriate to issue an authority with conditions, if conditions were necessary to keep the public safe. See Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630
3. Further, there was no way of enforcing conditions such as prohibiting Mr Haggar from transporting children.
4. It was not possible to say that Mr Haggar was at present fit and proper

The Tribunal's findings of fact

1. There was no disagreement between the parties about the facts of the matter. The Tribunal accepts Mr Haggar's account as set out.
2. The issue for the Tribunal is whether it can attest that Mr Haggar "is considered to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle," as required by section 40 of the Act.

The difference between good repute and fit and proper

1. In AIC at [23] the Appeal Panel referred to the difference between good repute and fit and proper character. "The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not…": See Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [23]."
2. The Appeal Panel stated that the expression "good repute and fit and proper" was meant to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. The various broad expressions invite the administrator to look broadly at the character and reputation of the individual. They have at the heart the conferral of public trust.

The role of public perception

1. The Tribunal's Appeal Panel has expressed differing views about the role of public perception in the assessment of 'good repute and fit and proper'. See for instance the differing approaches in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 and in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65. For example, In Murray, the Appeal Panel stated that the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. See also Farquharson -v- Director General, Department of Transport [1999] NSWADT 53
2. By contrast, in the later AIC decision, the Appeal Panel placed greater stress on the importance of public trust, perception and interest.
3. This Tribunal notes that the AIC matter dealt with some similar factual circumstances to Mr Haggar's. AIC was charged with child sexual assault offences against a minor under the age of 10. The alleged offences were "historical" having occurred in 1999. However, there were also some differing circumstances between the two matters. AIC did not self-report as Mr Haggar had done. Nor had AIC advised the administrator of his charging. AIC denied the charges.
4. Another different factor in AIC is that that the administrator suspended AIC because of the charges - prior to the criminal proceedings being finalised. The Tribunal at first instance granted a stay application, allowing AIC to continue driving until the criminal proceedings were finalised. The administrator appealed to the Tribunal's Appeal Panel against the Tribunal's granting of a stay of suspension. This Tribunal observes that the fact that the charges against AIC were yet to be finalised, was a significant factor in the Appeal Panel's reasoning. This reasoning stressed the role of public perception of risk, in circumstances where an Applicant had been charged with serious offences and was yet to come to trial.
5. As in the AIC matter, this Tribunal's role is to consider public protection in respect of authorising Mr Haggar to provide transport to the public. However, the context of Mr Haggar's circumstances is different. This Tribunal must consider a decision to cancel Mr Haggar's authority after Mr Haggar has pleaded guilty and been convicted and sentenced by the Court. The context for this Tribunal includes the finding of Mr Haggar's guilt and his sentencing by a District Court judge. In AIC, the Tribunal and Appeal Panel did not have the benefit of a determination of AIC's guilt or innocence.

Mr Haggar's "good repute"

1. In AIC, the Appeal Panel stated that 'repute' goes to the public estimation of the person" and "the way in which the Applicant is regarded by others in the community (fairly or unfairly)". See AIC at [13].
2. The Tribunal has considered the references of Kerry Haggar, Major Paul Kinder of the Salvation Army, Rae Forrester and Greg Longhurst.
3. Mrs Haggar's reference of 12 February 2017 refers to: "…my trust in his inherent goodness and ability to change has not been misplaced. He has never shied away from the wrongness of what he did or facing the ongoing consequences. In the 27 years since his offence there has been no hint of any such subsequent wrongdoing.… He is a man redeemed… Inherently he is a kind and selfless man…. the intervening years of good behaviour and exemplary service indicate that Colin Haggar of 2017 is not the same man in heart and mind or behaviour as the Colin Haggar of 1989… I believe that there is absolutely no chance of re-offence and that today he is a man of generosity, honesty and integrity."
4. Major Paul Kinder's character reference dated 15 February 2017 acknowledges that Mr Haggar pleaded guilty to three criminal charges. He had known Mr Haggar for 12 years as Mr Haggar's colleague and line manager. He stated that Mr Haggar is a man of good character and standing in the community who is trustworthy. Major Kinder believed the offences to be an aberrance of character. Mr Haggar had given a life of service without further transgression. Since the charges had been laid Mr Haggar had demonstrated respect for the law, and concern for all involved
5. Ms Rae Forrester is a conductor and leader of the community-based Leichardt Celebrity Brass. Her reference, dated 15 February 2017, referred to knowledge of Mr Haggar's offences. He had revealed them to her prior to seeking to join the brass band. She saw him as honest and diligent. At no time had there been any sign of the conduct that related to the charges.
6. Mr Gregory Longhurst provided an undated reference. Mr Haggar had commenced working for him in his hire car business in January 2015 for three or four days each week. Mr Haggar had been upfront about his past indiscretions and seemed very remorseful. Mr Longhurst had also heard of the case in the press. His decision to give Mr Haggar a chance was well rewarded as he had proved himself a loyal and trustworthy person. Mr Haggar appeared to be contrite and ashamed of his past and the effect it had on his family and friends. He was deeply sorry for the offence. He had learned from his past. Mr Haggar had suffered loss of reputation, public disgrace and now loss of livelihood due to the things he did 30 years ago. He did not believe that the Colin he knew was the Colin who committed those offences. He would have Mr Haggar drive for him should RMS reinstate his authority.
7. The Tribunal notes that Mr Longhurst also appeared in support of Mr Haggar at the hearing, although he did not give evidence.
8. The content of the references was not contradicted before the Tribunal.
9. At the same time, in his reference, Mr Longhurst acknowledged Mr Haggar's loss of reputation as a result of his conviction and sentencing.
10. Mr Haggar acknowledged in his own evidence that the publicity surrounding his circumstances in the Royal Commission had been damaging to him. The Respondent also submitted that the convictions were damaging to Mr Haggar's reputation - in particular in light of the public mood against child sexual assault.
11. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at (393) Waddell J referred to reputation in the following terms: 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.
12. The Respondent pressed that in considering public perception, the Tribunal should be mindful of the "front page of The Daily Telegraph test". The Tribunal understands this to mean that the Tribunal should be deterred from authorising Mr Haggar to continue as a private hire vehicle driver by the potential for outrage to be expressed in the popular media.
13. The Tribunal notes that media views of Mr Haggar's offences were not put before the Tribunal. However, there is little doubt about the "wrongness" of child sexual abuse in the public's estimation. Very strong views are often expressed in popular media as to how convicted offenders should be dealt with.
14. At the same time, in AIC at [31] the Appeal Panel said "Great care should be taken not to be unduly influenced by popular perceptions as to the wrongness of the conduct of concern when considering whether to deregister a licensee or renew a registration."
15. In AIC, The Appeal Panel stated that the expression "good repute and fit and proper" "was meant ……for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern."
16. The Tribunal accepts that Mr Haggar's conviction for child sexual assault matters is "cogent evidence of bad reputation". However, the Tribunal also notes that the references were provided subsequent to and in the knowledge of Mr Haggar's convictions. The Tribunal considers these references to be objective evidence of Mr Haggar's current "good repute" with those who know him well.

Fit and Proper

1. In AIC, the Appeal Panel stated 13. 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry…..."
2. The oft quoted case law in relation to "fitness and propriety" for licensing stresses that fitness and propriety must be assessed in the light of the particular calling for which the applicant is seeking licensing. This Tribunal's synthesis of the case law is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant. See such matters as Hughes and Vale Pty Ltd v State of NSW [1955] HCA 28; (1955) 93 CLR 127 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 and Sobey v Commercial and Private Agents Board 20 SASR 70

Objects of Passenger Transport Act 1990

1. A decision about the fitness and propriety of an Applicant for licensing under the statutory scheme set out in the Act should take into account the stated objects of the Act. The reasonable expectations of the community for safe transport services has a central place in that scheme. Section 3 of the Act sets out the underlying goals of passenger transport regulation including: (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services,
2. In AIC at paragraph [34] the Appeal Panel referred to the Victorian Court of Appeal decision, Director of Public Transport v XFJ [2011] VSCA 302. There the President of the Victorian Court of Appeal said that the importance of maintaining public confidence in taxi authority schemes (as stressed in objectives of the relevant act) should not be considered separately - but rather incorporated into the decision-making process about the issue of driver authorities.
3. The Tribunal is mindful that the objects of the Act refer not just to the expectations - but to the "reasonable expectations" of the community.
4. The Tribunal considers that this means it should carefully evaluate all evidence put before it, in assessing Mr Haggar's fitness and propriety for the role of hire vehicle driver.
5. The evidence before the Tribunal was that Mr Haggar had committed the offences; he had, shortly after, self-reported to the victim's parents, his wife, his employer and to the Police. He had been assessed by 2 psychiatrists over a period of time as being at low risk of reoffending or as presenting a minimal if any risk at all of acting again in an inappropriate sexual way towards children.
6. Mr Haggar had informed RMS and his employer of the charges and had pleaded guilty. He is presently serving his sentence in the community. He considers that he has rehabilitated himself and this was the view formed by his referees.

The impact of criminal sentencing

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 deals with the "purposes of sentencing" set out below. Section 3A The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
2. These principles have a clear community focus. The Court acts as the public's delegate in determining sentence on an offender. This Tribunal considers these factors provide a guide to the role of the public interest in the determination of criminal proceedings.
3. The Tribunal did not have before it Judge Girdham's comments on sentencing. However, the Judge considered that a term of imprisonment for 12 months was warranted. At the same time, the Judge implicitly considered that the elements set out in section 3A were met by suspending the term of imprisonment, provided Mr Haggar was of good behaviour until December 2017. In addition, the Judge considered Mr Haggar should be subject to good behaviour bonds until June 2021.
4. This Tribunal views the Court's sentencing of Mr Haggar as representing an element of the public interest in determining Mr Haggar's repute and fitness and propriety.

Fit and Proper - will improper conduct reoccur?

1. When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11.
2. In Saadieh v Director General, Department of Transport [1999] NSWADT 68 Deputy President Hennessy set out factors for consideration by a decision maker concerning an offender's suitability and fitness for a taxi authority. These include considering the severity of the offence committed.
3. The considerations are:

• "the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
• the nature, seriousness and frequency of any complaints made against the Applicant;
• the Applicant's driving record;
• the Applicant's reputation in the community; and
• the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences."

1. Deputy President Hennessy stated that in assessing the likelihood of reoffence, the following considerations are relevant:

• the length of time since the offences were committed and the circumstances in which they were committed;
• whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse;
• the efforts the Applicant has made to rehabilitate himself or herself during that time;
• any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.

1. The Tribunal has considered the factors set out in Saadieh's case as they apply to Mr Haggar.
2. The Tribunal considers that the offences for which Mr Haggar was convicted in December 2016, committed in October 1989, are extremely serious. They prompted the imposition of a (suspended) custodial sentence. However, the Tribunal notes that these are the only offences for which Mr Haggar has been convicted.
3. No evidence was put before the Tribunal of any complaints about Mr Haggar's driving or his driving record. The Tribunal was presented with evidence of positive comments drawn from passengers' feedback of Mr Haggar's performance.
4. Mr Haggar provided evidence of his good reputation amongst those who were aware of his offences and who know him in the community. At the same time, the Tribunal accepts the Respondent's submission that the community at large has a poor estimation of the class of persons convicted of child sexual assault offences.
5. The Tribunal had before it reports of psychiatrists, Dr Bruce Westmore and Dr Olav Nielssen. Dr Westmore's report of December 2007 said that Mr Haggar does not pose any significant risk to adults or minors and that the risk of Mr Haggar acting again in an inappropriate sexual way towards children is minimal if any risk is there at all.
6. Dr Olav Nielssen's report from October 2016 asserted that Mr Haggar was at a low risk of reoffending. Similarly, this was the view of Mrs Haggar.
7. The offences were committed in October 1989. The Tribunal considers that the length of time since the offences does not diminish their gravity. However, the length of time since the offences were committed, with no further reported offending, does go to the reduced risk of Mr Haggar reoffending.
8. It is clear to the Tribunal that Mr Haggar has both expressed remorse and acted remorsefully for his offences. The Tribunal accepts that he confessed his wrongdoing to the victim's parents, his wife and to the police. He has not denied his wrongdoing and pleaded guilty before the Court in 2016.
9. The Tribunal accepts that Mr Haggar undertook counselling; committed himself to study and has worked for many years in the provision of services in the community. The Tribunal accepts that he is well thought of by others for his work in rehabilitating himself and in contributing to community welfare.
10. The Tribunal understands that Mr Haggar has been dismissed by the Salvation Army and is no longer part of that organisation.

Imposition of conditions

1. Mr Haggar suggested that concerns might be met by granting him a conditional authority. The Tribunal accepts that it is not consistent with the attestation of fitness and propriety to grant a conditional authority to protect the public, for the reasons set out in Litchfield. See Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

Suspended sentence

1. In R v Gamgee [2001] NSWCCA 251 the Court of Criminal Appeal commented on the use of suspended sentences at [6] to [7].
2. "[6] A suspended sentence may serve several goals. A condition of its use is that the offence is so serious that it requires a sentence of imprisonment to be imposed…. (And there is) …. the prohibition upon sentencing to imprisonment unless the court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
3. The Court noted that the power to suspend a sentence was introduced for the following reasons: "There are situations, conceivably limited in number and scope, where a suspended sentence of imprisonment would be the preferred sentencing option. A precondition of its use would be that the offence is so serious that it requires a custodial sentence to be imposed, particularly for reasons of denunciation. It would also have to be clear that the threat of imprisonment would be a sufficient specific deterrent for the individual offender, and that considerations of general deterrence are not paramount. Further, a suspended sentence would be appropriate when rehabilitation would thereby be promoted and there was not question of need to incapacitate the offender." See R v Gamgee [2001] NSWCCA 251 at [7].
4. The Tribunal does not have the benefit of Judge Girdham's sentencing remarks. However, Mr Haggar reported that Judge Girdham had acknowledged that Mr Haggar had reported his wrongdoing early and had gone to the Police. She considered that his rehabilitation had been amply demonstrated. This account was not contradicted before the Tribunal. It is also consistent with the pre-conditions to suspending a prison sentence as set out above in R v Gamgee at paragraphs [6] to [7] - denunciation, deterrence from further offending, promotion of rehabilitation and in circumstances where there is no need to incapacitate the offender. See R v Gamgee [2001] NSWCCA 251.

Good Behaviour Bonds

1. Case law provides little assistance in considering the impact of bonds on an Applicant's fitness and propriety for a role. In the matter of Lloyd v Director General, Department of Transport [2001] NSWADT 201 at 64-65 Judicial Member Montgomery considered that the Tribunal should be guided by the length of time of the bond in deciding whether sufficient time had elapsed in relation to the fitness and propriety of Mr Lloyd. The Tribunal notes however that Mr Lloyd had a repeated history of criminal offending and his rehabilitation required further testing. The Tribunal does not consider that Mr Haggar presents such a case.
2. The Tribunal is satisfied that the Good Behaviour Bonds can equally operate as a deterrent to further wrongdoing. This is particularly so in Mr Haggar's circumstances in a context where it is almost 28 years since his offences. The bonds are also a reassurance to the community of the "surveillance" of Mr Haggar by the criminal justice system.

Conclusion on good repute and fit and proper

1. The Tribunal has considered the objective evidence placed before it. The Respondent urged the Tribunal to take account of the public perspective and to consider "the front page of the Daily Telegraph test." The Tribunal did not have before it specific media comment about Mr Haggar. Mr Haggar told the Tribunal that he had borne the brunt of condemnation of the Salvation Army in the Royal Commission's inquiry. However, this comment did not deal specifically with his suitability to hold a private hire vehicle authority. The Tribunal has also considered the sentence decided upon by the District Court as a statement of the public's denunciation of Mr Haggar's offences, acknowledgement of his rehabilitation and his suitability to remain free in the community.
2. Specifically, Mr Haggar provided references from people who know him well and who are aware of his crimes and sentencing. They hold him in good repute.
3. The evidence of Dr Nielssen, psychiatrist, is that Mr Haggar has a low risk of reoffending. The evidence of Dr Westmore, psychiatrist, was that Mr Haggar did not pose any significant risk to adults or minors. Dr Westmore also stated that the risk of Mr Haggar acting again in an inappropriate sexual way towards children is minimal if any risk is there at all. There was no evidence before the Tribunal that Mr Haggar has reoffended in the last 27 years.
4. In the circumstances, the Tribunal is satisfied that Mr Haggar is of good repute and in all other respects fit and proper to be issued with an authority to drive a hire care.

Decision

1. The Respondent's decision to cancel Mr Haggar's private hire vehicle driver authority is set aside.

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: 18 August 2017