Ibrahim -v- Commissioner of Police [1999] NSWADT 119

CITATION: Ibrahim -v- Commissioner of Police [1999] NSWADT 119

DIVISION: General

APPLICANT: Raouf Ibrahim

RESPONDENT: Commissioner of Police

FILE NUMBER: 993164

HEARING DATES: 09/07/1999

SUBMISSIONS CLOSED: 09/10/1999

DATE OF DECISION: 24 November 1999

K P O'Connor DCJ - President BEFORE:

PRIMARY LEGISLATION: Security Industry Act 1997

APPLICATION: Review of a decision to refuse to issue a security industry licence; Review of decision to refuse to renew security industry licence -

MATTER FOR DECISION: Principal matter

Applicant: A J Muscat, solicitor, A J Muscat & Co REPRESENTATION: Respondent: E Lynch, solicitor, Commissioner of Police

ORDERS: 1. The decision under review is affirmed.

1 The applicant, Mr Raouf Ibrahim, has applied for review of a decision of the Commissioner of Police made pursuant to s 16 of the Security Industry Act 1997 ('the Act') to refuse to grant a security industry licence following application for renewal of a licence that expired on 5 January 1999. The ground of refusal is that the applicant has been found guilty (but with no conviction recorded) of an offence prescribed by cl 11(d) of the Security Industry Regulation 1998 ('the Regulation'). 2 The administrator is obliged to refuse to grant a licence where an offence falling within a prescribed category exists. The offence of larceny (Crimes Act 1900, s 117) clearly falls within the category of an offence involving 'fraud, dishonesty or stealing'. Without more, this would be a case like so many the Tribunal has dealt with, where the decision of the administrator must be affirmed. 3 The new question raised by this case is whether the statutory scheme operates differently where the person against whom the offence was recorded was under the age of 18 years at the time, and the matter was dealt with pursuant to the Children (Criminal Proceedings) Act 1987. 4 In the present instance the applicant was found guilty of larceny on 11 August 1997 at the Lidcombe Children's Court. At the time he was under 18 years of age. He was released without a conviction being entered on the condition that he enter into a recognisance to be of good behaviour, for 12 months. That order was made pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 which provides: "33 Penalties (1) If the Children's Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things: (a) … (b) it may make an order releasing the person on condition that the person enters into a recognizance, with or without sureties, to comply with such conditions as it may determine for such period of time, not exceeding 2 years, as it thinks fit". 5 The provision under which the administrator has acted is s 16(1)(b) of the Act which states: "16 Restrictions on granting licence: criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: … (b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law …". 6 The questions therefore are: Has the applicant been found guilty (with no conviction being recorded) of an offence prescribed by the regulations? Was that finding made by a court in New South Wales? 7 The answer to the first question is yes. As to the second question, s 4 of the Children's Court Act provides that - "Constitution of the Court 4. There is constituted by this Act a court of record to be known as the Children's Court of New South Wales." The answer to the second question is yes. 8 The legislative scheme does not discriminate between convictions (or proven offences) incurred by adults and those incurred by children dealt with by the Children's Court. 9 The main submission made on behalf of the applicant was to the effect that he was now exposed to a second, and worse, penalty (loss of employment because of his inability to retain a licence) than the one handed down at the Children's Court. Material presented to the Tribunal indicated that the applicant is a university student, is fluent in Arabic as a second language, is genuinely remorseful in relation to the circumstances of the offence and is keen to become a police officer. He had a number of strong references and is highly regarded for his part-time work in security duties at clubs in the Bankstown area. For the reasons given in this and other cases (see esp. Bourke v Commissioner of Police [1998] NSWADT 1 (Gen. Div. 17 December 1998), these positive factors can not be taken into account. Determination 10 The decision under review is affirmed.