35 In Singh, the Tribunal granted the application. There are some relevant differences in the circumstances in Singh, however, compared to this case:

• No physical violence was involved, and Mr Singh was not charged with any assault on his wife;
• The police informant accepted that Mr Singh did not mean the threats;
• CPVV did not oppose the application or seek to cross-examine Mr Singh, and agreed that the case could be decided on the papers;
• The Tribunal had before it a report from a clinical psychologist with an evaluation of risk;
• In addition to a men's behavioural change program, Mr Singh had attended an additional program which had a specific evaluation in relation to Mr Singh; and
• There was evidence about Mr Singh's conduct as a taxi driver.

(b) the period of time since the applicant committed the offence;

36 The offending is relatively recent. Mr Syed applied for accreditation just over six months from the date the offences occurred, while still under the Community Corrections Order, and it is now just over two years since he committed the offences. The fact that the offending is relatively recent may make it more difficult to be confident that an applicant no longer poses a risk, or to make a confident assessment of the degree of risk. That was the case here.

(c) whether a finding of guilt or conviction was recorded;

37 Mr Syed was found guilty of the offences. A conviction was not recorded.

38 He was placed on a Community Corrections Order for 12 months. The conditions were that he:

• undertake 120 hours of community work within 12 months;
• be supervised by the Secretary; and
• attend a treatment and rehabilitation program as directed.

39 While not a sentence of imprisonment, these are significant penalties.

40 It was also thought appropriate to protect Mr Syed's wife and their son by an intervention order.

(e) the age of the applicant when the offence was committed;

41 Mr Syed was 34 when the offences were committed and was a father and husband. He does not have the potential mitigating factor of youth.

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

(g) whether or not the conduct that constituted the offence has been decriminalised since the offence was committed;

43 The conduct has not been decriminalised. The offences remain offences under s 20 of the Crimes Act 1958 (Vic) and s 23 of the Summary Offences Act 1966 (Vic) respectively.

(h) the applicant's behaviour since committing the offence;

44 The National Police History Check dated 16 January 2020 did not disclose any subsequent offences. As noted by CPVV, the history did not disclose any offences before the ones under consideration here. This is of lower relevance than it might otherwise be because Mr Syed had only been in the country for two months at the time of his offending.

45 As submitted on his behalf, Mr Syed completed the 20 sessions required in the Men's Behaviour Change Program at Uniting Kildonan. A letter to this effect was in the materials. I say more later about a note of caution in that letter.

46 Mr Syed completed the requirements of the Community Corrections Order.

47 It was also submitted on his behalf that Mr Syed and his wife have reconciled and live happily together, and that it was relevant that they have had another child. The child was born in April 2020.

48 Mr Syed's wife signed a letter of support dated 16 February 2021 typed on the letterhead of Mr Syed's solicitor, although she stated that she wrote it. The letter describes Mr Syed as a good man and a great father who has, since the offending, demonstrated that he is a changed man, and has been on 'perfect' behaviour. The letter states that she has forgiven him, as demonstrated by the fact that they have had a second child. She does not believe he will repeat his behaviour.

49 Mr Syed is the sole breadwinner for the family. His wife confirmed in her evidence that she is financially dependent on him. She does not work and is the primary carer of their two children. While I understand she wishes to support Mr Syed's application because accreditation will provide an additional source of income, and is sincere in her estimation of his character, I accept her evidence about his character with some caution, as a result of that dependence.

50 It was submitted on his behalf that Mr Syed has become more involved in the community and has advocated for other men to refrain from committing family violence. His evidence in cross-examination clarified, however, that this is not a formal role in the community, rather it is just conversations with friends - he tells them things are different here and that violence is not good.

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

51 The relative recency of the offending in this case, combined with the nature and gravity of the conduct make it difficult to assess the likelihood of Mr Syed committing another such offence in the future. Evidence of insight and remorse will be relevant,[11] but if insufficient time has passed between the offending and the assessment, the Tribunal may lack the necessary reassurance that the risk is low. That was the case here.

52 Insight is an issue in this case. I acknowledge that Mr Syed's insight has evolved since he committed the offences (and say more about this below), but Mr Syed's explanation of the conduct in his evidence at the hearing, frankly, made no sense.

53 He said that a car had collided with his car the day before. It was not clear how this was relevant to the offences. On the evening of the first assault, he said he got angry because some gloves he had bought for his wife 'were not there'. He was referring to some ski gloves he had bought ahead of a planned snow trip the next day with friends. He couldn't find them. An argument started. Again, it is not clear how this would be a trigger for him to assault her.

54 The next morning, she said she didn't want to go on the trip anymore (the police summary states this was because she was sore from the assault the night before). He got angry. He punched her to the chin and ribs. He said he believed she should obey him, and that not going would embarrass him in front of his friends. He took her phone and threw it away, he said, because she was holding it. He said the charge of threat to kill was a 'misunderstanding of the words'.

55 What is clear is that, at the time of the offences, Mr Syed did not think that assaulting his wife and threatening to kill her was a crime, and believed he had a right to act as he did. This view is supported by the Community Corrections Order assessment outcome report dated 11 July 2019 which notes:

During the assessment Mr [Syed] showed little understanding of the expectations with respect to disagreements between individuals, especially within the family environment, that would be considered acceptable by a Court.

56 The written submissions on his behalf stated that Mr Syed explained that the offences were a 'sudden overreaction to a volatile situation'. There would appear to be nothing volatile in the situation, other than his own conduct. Describing what occurred as a 'sudden overreaction' also ignores the fact that the events constituting the offences took place over several hours, and that Mr Syed slept before escalating the matter.

57 In his evidence in chief, he described the events as a 'misunderstanding' and 'harsh communication'. These descriptions concerned me and indicated that he is prone to minimise what occurred.

58 I note also that Mr Syed described his marriage as 'perfect' in an interview in August 2019 with his Community Corrections Order officer.[12] The case officer's comments are instructive. After noting the summary of offences and Mr Syed's attitude (not understanding how assaulting his wife and threatening to kill her is a crime, because it is not one in Saudi Arabia), the case officer noted:

I can professionally assess that the marriage is far from perfect.

59 The case officer also noted that Mr Syed felt he should not have been charged with spousal abuse.

60 Much of Mr Syed's evidence at the hearing, and the submissions on his behalf, were to the effect that he now sees what was wrong with his conduct, is deeply ashamed, and has changed.

61 I accept that Mr Syed now very much regrets what he did, not least because of the consequences that have followed, and that there is reason to hope that he will not risk the consequences of any repeat of the conduct. He has taken steps to improve his attitudes. The weight of his letter of remorse, however, was reduced somewhat by his evidence that the section on what he learned during the men's behavioural change program, about equality and power and control, were copied out by him from the program materials.

62 I am also mindful of the following note of caution in the letter from Uniting Kildonan recording that Mr Syed attended the program:

The process of behaviour change is a long one, and participation in our program is in no way predictive of positive change. Whilst there is evidence that men can and do modify their behaviour, research over the longer term demonstrates that it is exceedingly difficult to predict which men will sustain positive change or for how long.

As such, we can make no comments on [Mr Syed's] behaviour now or in the future. We strongly believe that men should not use their participation in a Men's Behaviour Change Program as a means to avoid the penalties that they are due, or in any other way to lessen the strength of a justice or child protection response to men's violent and controlling behaviour.

63 The above section refers to much of the additional information provided by Mr Syed.

64 Mr Syed has qualifications in engineering. He works part time as a telecommunications engineer and also works casually as a courier and delivery driver. The submissions on his behalf state that he seeks accreditation so that he may have a more stable source of income to support his family and avoid financial hardship. He and his wife also wish for their son to attend a private school from next year and are concerned they will not be able to afford the fees.

65 He provided character references from colleagues who are also telecommunications engineers who spoke well of him, although two of the letters are in almost identical terms, which suggests that they were not written independently. Each said they were aware that he had gone to court on multiple charges, they knew he was very sorry and that he had taken positive steps to change.

66 I refer to without repeating my observations above.

67 The role of a commercial passenger vehicle driver is a position of significant trust, as underlined by the requirements for accreditation. As submitted by CPVV, accredited drivers are responsible for driving passengers who could potentially include vulnerable members of the public due to their age, gender, or disability, or who may be intoxicated or argumentative. They will certainly include women, who are vulnerable to conduct such as that engaged in by Mr Syed, or who may otherwise challenge him in some way.

68 The offences, the circumstances, and Mr Syed's attitudes at the time of the offences raise concerns about the risk he poses, which have not been entirely addressed by the evidence before me. I remain concerned about insight. While he appears to have made progress, these were relatively recent and serious offences involving unprovoked violence, aggression and control against a woman. It is too soon, in my view, to make an assessment of risk that excludes an unjustifiable risk.

69 The requirement in s 253(4)(c)(i) of the Act has not been met.

70 The concerns above are also relevant to the question of whether I am satisfied that Mr Syed is a fit and proper person to provide a commercial passenger vehicle service.

71 The test is summarised well in Singh at [11]-[12]:

The term 'fit and proper person' referred to in criteria A above is not defined in the Act but its meaning has been the subject of much judicial comment. The test does not carry defined criteria but allows for a wide range of matters to be considered. It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person is possessed of sufficient moral integrity and rectitude of character to permit him to be accredited to the public as a person to be entrusted with the sort of work the licence entails. The decision maker needs to make a value judgment and in so doing must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to weighing matters in favour of the person. The test must be applied in the context of what the person will be authorised to do if the relevant permission is given.

Accredited drivers are entrusted to drive persons, including the vulnerable, to their destination safely. As they occupy a position of trust, drivers are expected to behave in a respectful and professional manner to ensure the passengers, who are travelling alone in the car with a stranger, feel safe and at ease. Unfortunately, it is often the case that accredited drivers must carry difficult, aggressive and/or intoxicated passengers. An accredited driver must be able to deal with challenging situations such as these without resorting to any form of violence or interfering with a passenger's autonomy.

72 As submitted by CPVV, the test invites consideration of a person's strength of character and past conduct. Character is manifest not in what a person says but in how they behave; for the purposes of accreditation, especially how they behave towards others when under stress.

73 Mr Syed's past conduct raises concerns about whether he has the character required to behave in a way consistent with the trust placed in accredited drivers. Whether or not his victim has forgiven him, the violence he engaged in - physical and verbal - is the antithesis of the moral integrity and rectitude of character required. While his wife describes him as 'a good man', good men do not attack women in that way. Nor does he fall 'well within the definition of fit and proper person' as submitted on his behalf.

74 I accept that Mr Syed is sorry for what happened, not least because of the consequences for him and the impact on his family. I accept that he has taken steps in the right direction to make positive change. I remain concerned about his insight.

75 Mr Syed says he is a changed man. His wife supports him and says the same. But it is early days and I remain mindful of the caution expressed by Uniting Kildonan that:

The process of behaviour change is a long one, and participation in our program is in no way predictive of positive change. Whilst there is evidence that men can and do modify their behaviour, research over the longer term demonstrates that it is exceedingly difficult to predict which men will sustain positive change or for how long.

76 On the evidence before me, I am not able to predict whether Mr Syed is one of those men who will sustain positive change over the longer term.

77 Taking into account all the circumstances, I am not satisfied that he is currently a fit and proper person to provide a commercial passenger vehicle service.

Section 253(4)(b): appropriate having regard to the public care objective?

79 Given the findings made above, under the terms of s 253 of the Act, I must not order that Mr Syed be granted driver accreditation because at least one of the requirements has not been met.

80 In any event, in circumstances where I cannot rule out an unjustifiable risk and I am not satisfied that Mr Syed is currently a fit and proper person to provide the service because he is a safety risk, accreditation is not appropriate having regard to the public care objective.

81 As CPVV submitted, the safety aspect of the public care objective is of primary concern. The safety of passengers cannot be compromised.

Section 253(4)(c)(ii): is accreditation in the public interest?

82 While it may be in Mr Syed's private interests to obtain accreditation and thus access an additional source of income, that is not the test.

83 As submitted by CPVV, the predominant public interest is the interest of the travelling public. And while, as observed by the Tribunal in FC v Director of Public Transport (FC),[13] there is a public interest in 'offenders being encouraged to establish themselves as worthy citizens and people of good fame and reputation', safety remains the predominant consideration. I note also that in FC, the Tribunal was considering a case where the principal offending, including making a threat to kill, took place a decade before the hearing.

84 A submission was made on Mr Syed's behalf that there is a large demand for couriers and it is in the public interest to provide more people with this service.

85 The solicitor for CPVV confirmed that driver accreditation is not required to provide a courier service, an occupation Mr Syed already undertakes.

86 In circumstances where I am not satisfied that Mr Syed does not pose an unjustifiable risk to the safety of the travelling public, and I am not satisfied that he is a fit and proper person to provide the service, I do not consider that his private interests outweigh the safety of the travelling public, and I am not in all the circumstances satisfied that accreditation is in the public interest.

[2] El Sayed v Director of Public Transport [2011] VCAT 367 [14].

[3] XFJ v Director of Public Transport [2008] VCAT 2303 [21]; Director of Public Transport v XFJ [2011] VSCA 302 [33].

[4] Unlawful Assault is a Category 3 offence. CPVV may refuse to issue driver accreditation.

(i) is technically competent and sufficiently fit and healthy to drive a motor vehicle for the purpose of providing commercial passenger vehicle services; and

(ii) is a fit and proper person to provide a commercial passenger vehicle service ...

[6] Requirement under s 75(1)(b)(i) of the Act, referred to in s 253(4)(a).

[8] The cases refer to 'sufficient moral integrity and rectitude of character'. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Sobey v Commercial and Private Agents Board 22 SASR 70; and Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127.

[9] The Working with Children Unit's letter dated 16 August 2021 does not provide any detail about the assessment made.

[10] ZZ v Secretary, Department of Justice [2013] VSC 267 at [134].

[11] TLM v Secretary to the Department of Justice [2013] VCAT 1000 [42]; Maleckas v Secretary, Department of Justice [2011] VSC 227 [80].

[13] [2010] VCAT 437 [27].