Victorian Civil and Administrative Tribunal|2012-12-06

KYE v Secretary to the Department of Transport (Occupational and Business Regulation List) [2012] VCAT 1877 (6 December 2012)

Transport (Compliance and Miscellaneous) Act 1983, sections 164, 169C(3)(b), 169(1)(b), 169(N) - bus driver convicted of Category 1 offences relating to sexual offences relating to his step daughters - licence cancelled and may not reapply for five years - review application to VCAT seeking licence with conditions

KYE v Secretary to the Department of Transport (Occupational and Business Regulation List) [2012] VCAT 1877

The decisions of the respondent dated 6 July 2012 are affirmed.

In October 2011, KYE, the Applicant in this proceeding, applied for accreditation to drive commercial passenger vehicles, namely buses.
On 6 July 2012, a delegate of the Secretary to the Department of Transport (the Secretary) who is the "licensing authority" under the Transport (Compliance and Miscellaneous Act) 1983 (the Act) refused the application.
This was a mandatory refusal under section 169(2)(b) of the Act because in February 2003, KYE was convicted in the County Court at Melbourne of 7 counts of indecent assault and one count of attempted incest by step-parent. He was sentenced to five years imprisonment with a minimum of term of three years (which he served). The Court's orders included that KYE be sentenced as a serious sexual offender under the Sentencing Act 1991.
Under section 169(2)(b) of the Act, the Secretary must not issue a driver accreditation where a person has been found guilty of a Category 1 offence. Because the victims were children, the indecent assaults were classified as Category 1 offences.
The delegate also disqualified KYE from making a further application for accreditation for five years until 6 July 2017 under sections 169C(1) and 169C(2) of the Act. This is a discretionary decision with five years being the maximum disqualification period.
KYE asks VCAT to, under section 169N(2)(a) of the Act, direct the Secretary to issue him with a driver accreditation, subject to a condition that he not drive child passengers. He also seeks an order under section 169N(2)(d) cancelling the period of disqualification made under section 169C(2) of the Act, or alternatively, shortening the period.
VCAT's powers, as set out in section 51 of the VCAT Act are to affirm, vary or set aside the decision of the decision maker.

KYE made his application to VCAT under section 169N of the Act. The section gives VCAT jurisdiction, says what VCAT may decide and sets out criteria that must be addressed. It relevantly says,

169N Jurisdiction of VCAT as to category 1 offenders

(a) whose application for the issue or renewal of a driver accreditation is refused on a ground set out in section 169(2)(b) ... may apply to VCAT for an order that the licensing authority issue, renew or reinstate the driver accreditation or cancel the disqualification (as the case may be).

(2) On an application under subsection (1) VCAT may by order direct the licensing authority to -

(a) issue a driver accreditation to the applicant; or

(b) renew the driver accreditation of the applicant; or

(d) make a determination cancelling the disqualification of the applicant.

(3) VCAT must not make an order under subsection (2) to issue, renew or reinstate an accreditation unless -

(a) VCAT is satisfied of the matters set out in section 169(1)(b); and

(b) the applicant has demonstrated that the issue, renewal or reinstatement is appropriate having regard to the public care objective; and

(i) the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to -

(A) the matters set out in section 169C(3)(b)(i) to (x); and

(B) any other matter that VCAT considers relevant to the application; and

(ii) in all the circumstances, it is in the public interest to make the order.

(5) The licensing authority must comply with an order made by VCAT under this section.

(6) If VCAT refuses to make an order applied for under subsection (1), VCAT may by order disqualify the person from applying for a driver accreditation under this Division for a period not exceeding 5 years.

(7) A period of disqualification under an order under subsection (6) may be in substitution of a period of disqualification imposed by the licensing authority.

The matters set out in section 169(1)(b) are that the applicant is technically competent and sufficiently fit and healthy to be able to provide the service and is suitable in other respects to provide the service.
The public care objective is set out in Section 164. It provides that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services provide safety and comfort, amenity and convenience to persons using the services and to other persons particularly children and other vulnerable persons and be carried out in a manner that is not fraudulent or dishonest.
The relevant considerations under section 169C(3)(b) are set out below.
As Ross J observed in NS v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 856 (2 May 2008),

The requirement in section 169N(3)(a) does not impose any onus of proof on the Applicant, but because the Tribunal needs to be 'satisfied' as to the specified matters this inevitably poses a challenge to the applicant to show why the Tribunal should be so satisfied. Pursuant to s.169N(3)(b), it is for the Applicant to demonstrate that the issue of an accreditation is appropriate, having regard to the 'public care objective'.

KYE agreed he had been convicted of the charges described above and had served three years in prison. He says he is not guilty of offences and has maintained his innocence at all times. He describes himself as living a quiet life with his wife, he says too quiet. He describes himself as having too little money, too much time and longing for the days of again actively contributing to society. He seeks the stimulation of some part-time work, he suggests as a part-time bus driver for elderly people.
He says the decision to bar him from reapplying for accreditation for five years is effectively a lifetime ban. He doubts at age 79 (as he will be in five years) he will be able to drive buses. I take this to be a submission that if VCAT refuses him a licence now, the time of the bar should be reduced.
He says, given that for more than 17 years he drove buses, without incident and without a substantial complaint from a single passenger and that he is fit and healthy, he should be allowed the chance to once again contribute to society.
He provided a brief statement from a senior supervisor from his previous employer, a bus line, confirming his excellent employment record and his very good rapport with passengers.
KYE provided a report from Dr G. Hogan, Psychiatrist. He had been advised this may assist his application. Dr Hogan concluded on the information given to him by KYE, there was no evidence of personality disorder, substance-abuse problems, past and present psychiatric illness or cognitive impairment.

The Secretary opposed KYE's accreditation and submitted VCAT should affirm the decision to disqualify him from applying for an accreditation for 5 years.
The submissions focused on evidentiary issues and statutory interpretation. I focus here on evidentiary issues and where I consider relevant, discuss submissions as to interpretation when explaining my decision.
The Secretary submitted KYE cannot satisfy:

the suitability criterion (s .169(1)(b)(ii)); 2. the safety and comfort and honesty criteria in the public care objective (s. 164(1)(a)(i) and (ii);

the unjustifiable risk criterion (s.169N(3)(c)(i)); or

the public interest criterion (s.169N(3)(c)(ii)).
The Secretary provided the County Court sentencing remarks of 20 February 2003,

Each of the three complaints have completed a victim impact statement. I have read each victim impact statement and take the contents of each statement into account. Clearly, each of your stepdaughters have suffered considerably as a result of these offences and not surprisingly, continue to suffer. The facts of this case are appalling, as you preyed upon each of your three stepdaughters, each of who were under your care, relying on you for their support, and you were a person to who their mother deferred, as it is clear that you were head of the household and the sole breadwinner. You abused your very powerful position with each of these stepdaughters by your actions

. . . Clearly there has been a breach of trust in your position as the stepfather of these girls. The indecent assaults were serious breaches of your position as stepfather. It is clear from the victim impact statements and the evidence given by each of the three complainants, that emotional trauma caused to each of these women has been considerable. However, it is fair to say that the conduct of their mother, from the time of these offences, has contributed to the emotional trauma suffered by the complainants as they see her as having betrayed them and not protected them.

Mr Cash has submitted that, as you have reached the age of 64, there is little need to give weight to either specific or general deterrence, which would not be the case if you were a younger man. I do not accept this submission as being an accurate statement of the law. In my view, it is incumbent on me, applying the correct legal principles, to give weight to specific deterrence in this case as well as general deterrence. These offences involved you taking advantage of vulnerable young girls who were your stepdaughters. A judge sentencing a person in relation to these offences in the circumstances of this case must make it clear that adults are responsible for the preservation of the sexual integrity of children. Consequently, there is a need to accord a deal of weight to general deterrence as well as specific deterrence to you.

In the sentencing remarks, there are comments about evidence from KYE's former employer,

Further your former employer, a coordinator with the Bus Lines gave evidence as to your excellent employment record. He also said, given the nature of these offences, you would be unable to ever be employed driving buses because children are frequently the passengers on buses.

The Secretary submitted that in 2003, the evidence was that KYE was, and would continue to be, unsuitable to drive buses. This is because of the frequency at which children travel as bus passengers. In these circumstances, KYE should present evidence from a bus company or some similar organisation that it is willing to place trust in him to work with children. Without this, it will be difficult to reach a conclusion that views expressed about him in 2003 have altered.

The Secretary submitted:
1. On the sentencing remarks and the material provided, KYE fails this criterion. His offending extended over a period of 7 years from 1981 to 1989. The victims were his step daughters, aged between 13 to 18 years. The County Court described the facts of the case as "appalling"; and
2. Of particular concern is that KYE denies that he was responsible for the convictions and appears to show no remorse or responsibility for his actions. KYE does not have an understanding of wrongdoing or fault by him. There is no evidence of acknowledgement of fault, regret or rehabilitation which must be demonstrated so that VCAT can conclude it is truly unlikely he will not reoffend. He must show that if he is given an accreditation, he will be able to justify the trust that placed on him.

The Secretary submits "comfort" has been considered to include "ease of mind" but that of "reasonable persons as distinct from wild prejudice" (discussed below). On the material currently available, this criterion is not met. Some reasonable passengers would not feel comfortable riding in a bus with KYE if they were aware of his convictions.

The Secretary Submits KYE must satisfy VCAT as to his honesty. VCAT should not make a finding in his favour on this issue unless there is compelling evidence to that effect.
The Secretary continues, while it appears KYE can be trusted with money, his honesty is open to question because he maintained (and maintains) his innocence throughout police investigations and the trial where he pleaded not guilty to all 10 charges. He was convicted of eight of the charges on the criminal standard of beyond reasonable doubt. This is the best test available, at law, to test the truth or otherwise of the allegations made against him. KYE protests his innocence (as is his right) but the question must be asked whether he can then be trusted in the future.

I discuss below the Secretary's submission as to whether, under section 169N(3)(c), VCAT may be satisfied that accreditation of KYE would not pose an unjustifiable risk to the safety of persons using the service provided by him.

VCAT refuses to make the orders KYE seeks and affirms the Secretary's decision. This disqualifies XYZ from applying for a driver accreditation under Division 6 of the Act for 5 years from the date of the Secretary's decision.

Technically competent and sufficiently fit and healthy

I am satisfied KYE is technically competent and sufficiently fit and healthy to be able to provide the service, which the Secretary does not contest. I note the reference as to his technical competence, his evidence as to years of experience driving buses, his apparent good health at the VCAT hearing and the lack of any concerning medical evidence.

the first VCAT decision in XFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303 ("XFJ (VCAT)"); 2. the Supreme Court's decision about the appeal from XFJ (VCAT), Director of Public Transport v XFJ [2010] VSC 319 ("XFJ (Supreme Court)"); and

the Court of Appeal's decision about the appeal from XFJ (Supreme Court), Director of Public Transport v XFJ [2011] VSCA 302 ("XFJ (Court of Appeal)").
In XFJ (VCAT) Macnamara DP accepted that "suitable in other respects" is in the context of the T (C&M) Act analogous to "fit and proper person" (from para 24).
In XFJ (Supreme Court, Ross J accepted the words "suitable in other respects" are comparable to the expression, "fit and proper person" (para 105).
The Secretary submits:

Overall, VCAT should consider the impact on the perceptions of safety in the public transport system if KYE is granted an accreditation (XJF (Court of Appeal) para 60). He has been convicted of serious sexual offences against children and under section 6F of the Sentencing Act 1991, a declaration has been entered in the court records that he is a serious sexual offender. All these matters may affect the confidence in the public transport system (in this case in bus transport); and 2. On this analysis, KYE cannot be considered "fit and proper" because, given the gravity of his prior offending, the general community would not have confidence that further offending would not occur. Further, it could not be assumed that it would not occur again. KYE's offending occurred over several years and with more than one person. He has not shown remorse or a sense of accountability for his actions. A reasonable member of the public could conclude KYE may reoffend if left alone with a child on a bus.

Also, the Act regards Category 1 offenders as being prima facie unsuitable to provide the commercial passenger vehicle services (XFJ (Supreme Court) para 77). VCAT is to assess applications by such persons with a "heightened degree of scrutiny" (XFJ (Supreme Court) para 80).
I accept the words "suitable in other respects" are comparable to the expression, "fit and proper person".
As Macnamara DP discussed in XFJ (VCAT), the words fit and proper "have been interpreted to allow the widest scope for judgment and indeed for rejection", In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321at 380", Toohey and Gaudron JJ said,

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 and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, 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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

I am not satisfied KYE is "suitable in other respects". In the words of Toohey and Gaudron JJ in Bond, improper conduct has occurred. Given the crimes committed, I am not satisfied further crimes will not occur if KYE had the opportunity, say with a child or teenager alone on a bus (perhaps a repeat passenger). I do not accept the general community will have confidence that it will not occur.
I note KYE's submission that he would only seek to drive buses for the elderly or for adults. Mr Jeppesen submits, once licensed, there is no regulatory control over the type of passengers KYE may convey.
I considered the possibility of making a decision licensing KYE to drive buses, subject to a condition, imposed under section 130 of the Victorian Civil and Administrative Tribunal Act 1998, that he only be employed driving buses for the elderly or adults, but not for children. I rejected the possibility for two reasons. First, I am unaware of any practical mechanism to enforce such a condition, other than relying on a promise by KYE to abide by it. I would not regard such a promise as a sufficient mechanism. Breach of such a condition would constitute contempt of VCAT under section 137 of the VCAT Act. While contempt is punishable by of a fine or imprisonment, such a sanction could only be imposed after the condition was breached. Second, it is arguable that if Parliament intended that licences be granted with conditions, it would have provided for such in the Act and so section 130 of the VCAT Act should not be employed to that end.

I am not satisfied the public care objective is met.
First, given the KYE's convictions, I do not accept he can satisfy the public care objective that services be provided with safety to children, for the reason I give at paragraph 37 above.
Second, in XFJ (VCAT), Macnamara DP considered the meaning of the word 'comfort' and said (para 21),

It seems to me doubtful that the word "comfort", when used in Section 164(1) is intended to be directed to the concept of ease of mind, as distinct from ease of body, relative to proper upholstery, proper ventilation in taxicabs, proper cooling and heating and so forth. I concede, however, that it is arguable that ease of mind is included in the concept of the word "comfort". In my view, Parliament must, in establishing such a criterion, and if it has established it, be treated as being concerned with the ease of mind of reasonable persons, as distinct from simply wild prejudice.

In XFJ (Supreme Court), Maxwell P quoted the above passage and said (para 33),

There was no challenge on the appeal to this conclusion or to the reasoning which supported it. This was not surprising. The analysis was clear and compelling, and the interpretation of the Act plainly correct, in my respectful opinion. What is of particular importance for present purposes is the Deputy President's statement that, to the extent that Parliament contemplated that the 'ease of mind' of passengers would be a relevant consideration, 'Parliament must ... be treated as being concerned with the ease of mind of reasonable persons, as distinct from simply wild prejudice'.

I do not accept KYE can satisfy the public care objective that services be provided with the "ease of mind" aspect of "comfort". For example, reasonable persons, such as reasonable parents of children travelling on a bus driven by KYE may well not experience "ease of mind" if they perceived their child was being driven by KYE. Given KYE's convictions, their experience would not flow from wild prejudice.
I accept KYE can satisfy the public care objective that services be provided honestly. I view this as a distinct requirement on the objective, not related to issues of sexual conduct. I do not accept the Secretary's submission that KYE protesting his innocence should lead me to conclude he would not honestly conduct himself with respect to non-sexual issues, such as the handling of money.
Having made the above decisions, section 169N(3) of the Act does not require me to consider the further criteria. For the sake of completeness, I do so.

Sections 169N(3)(c)(i) and criteria under 169C(3)(b)(i) to (x)

In am not satisfied that KYE would not pose an unjustifiable risk to the safety of persons using services provided by him as a bus driver, having regard to:

Nature and gravity of the offence and its relevance to taxi driving - The offences are grave and relevant to KYE driving buses, which may be used by children.
Period of time since KYE committed the offences - While the offences took place over 20 years ago, KYE was convicted in 2002 after the offences were reported to Victoria Police in 2000.

Whether a finding of guilt or conviction was recorded - KYE was convicted of seven counts of indecent assault and one count of attempted incest.

The sentence imposed for the offence - KYE was sentenced imprisonment of 5 years with 3 years to be served before becoming eligible for parole. He was released in February 2006 and was on parole until 2008.
KYE's age when the offence was committed - KYE was between the ages of 43 and 51 when the offences were committed.
In relation to any sexual offence, the age of any victim - The three victims were aged between 13 and 18 years.
Whether or not the conduct that constituted the offence has been decriminalised since the offence was committed - The conduct has not been decriminalised.
KYE's behaviour since committing the offence - There is no evidence that KYE has engaged in any relevant misconduct since the offence;
The likelihood of KYE committing another such offence in the future, in particular, any future threat to a child or other vulnerable person - For the reasons stated above, I am concerned there is some risk KYE may reoffend if the opportunity arose;
Any information given by the applicant - As described above, I have considered the minimal information KYE has given.

In my view, on balance I find the correct and preferable decision is to refuse to issue a driver accreditation to KYE.
I also affirm the decision to disqualify him from re-applying for such accreditation until and including 28 June 2016. In my view, it is unlikely that the factors which have led to my decision will significantly alter in nature in less than five years. While I note KYE's sensible submission that in five years he is unlikely to have the physical capacity to drive buses, that fact alone is not sufficient to shorten the period.

KYE v Secretary to the Department of Transport

At a glance

Court

Decision date

Source

Judgment (60 paragraphs)

KYE v Secretary to the Department of Transport (Occupational and Business Regulation List) [2012] VCAT 1877 (6 December 2012)

Parties

Cases Cited (1)