Infarinato v Commissioner of Police, New South Wales Police [2004] NSWADT 43

CITATION: Infarinato v Commissioner of Police, New South Wales Police [2004] NSWADT 43 DIVISION: General Division APPLICANT PARTIES: Corrado-Luigi Infarinato RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 033257 HEARING DATES: 20/11/2003 SUBMISSIONS CLOSED: 11/20/2003 DATE OF DECISION: 03/05/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Security Industry Act 1997 Security Industry Regulation 1998 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77 CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 Toleafoa v Commissioner of Police [1999] NSWADT 9 APPLICANT REPRESENTATION: M Gerace, solicitor RESPONDENT D Paterson, solicitor ORDERS: The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr Infarinato is affirmed.

The Application 1 These proceedings relate to a decision by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to refuse an application by Mr. Corrado-Luigi Infarinato for the grant of a class 1ABC licence under the Security Industry Act 1997 ("the Act"). The refusal was based on the view that it was not in the public interest that Mr. Infarinato be granted a security licence. 2 Mr. Infarinato had previously held a security licence from 30 October 2000 to 21 December 2001 and a further licence granted on 24 January 2002 was due to expire on 5 March 2003. Mr. Infarinato lodged the application for a security licence that is the subject of this application on 27 February 2003. The decision was taken to refuse that application and Notice of that refusal was served on Mr. Infarinato by post on 30 June 2003. By letter dated 29 July 2003 Mr. Infarinato's solicitor requested an internal review of the decision. A delegate of the Commissioner undertook the review and it was finalised on 14 August 2003. The decision ("the internal review decision") was made that the Commissioner's decision to refuse Mr. Infarinato's licence application is to stand. The Commissioner's delegate gave detailed reasons for the internal review decision and Mr. Infarinato was notified of the outcome of the review and those reasons. Reviewable decision 3 The reviewable decision is that of the Commissioner to refuse Mr. Infarinato's licence application. On 11 September 2003 Mr. Infarinato applied to this Tribunal for review of the Commissioner's decision. The matter was listed before me on 14 October 2003 at which time I made directions for the filing of documents and the matter was listed for hearing on 20 November 2003 and proceeded on that day. Background 4 It is common ground that Mr. Infarinato appeared in the Sutherland Local Court on 3 October 2003 where he pleaded guilty to a charge of "Drive vehicle in manner that menace other w/I to menace". Mr. Infarinato was convicted of the offence and fined an amount of $850 with Court Costs of $61 and witness expenses of $170. The prosecution did not proceed with charges of common assault that had also been brought against Mr. Infarinato. In addition to the fine, Mr. Infarinato was also disqualified from driving for a period of 12 months. There is some dispute between the parties with respect to the circumstances that lead to that conviction. As Mr. Infarinato pleaded guilty to the charge, there were no findings of fact made by the Court. 5 The findings of fact reached by the Commissioner's delegate and outlined in the reasons provided following the internal review decision were as follows: " 4. After considering this material I find as a fact the following : On 27 February 2003, an application for a Class 1ABC security licence was received from your client. On 28 March 2003, your client was charged in respect of the offence of "Common Assault" and "Drive vehicle in manner that menace other w/I to menace" and he is currently under conditional bail. These matters are set for hearing at Sutherland Local Court on 3 October 2003. On 30 June 2003, the 'Notification of Refusal for the Grant of Licence under the Security Industry Act 1997' was served upon your client by way of post." 6 Ms. Gerace, Solicitor for Mr. Infarinato, submitted that it is inappropriate to rely on the facts sheet that the Commissioner has put in evidence because the facts sheet relates to a number of charges some of which were dropped and while Mr. Infarinato pleaded guilty to the offence for which he was convicted he did not concede the account of events as recorded in the facts sheet. The facts sheet cannot therefore be relied on as accurately representing what was considered by the Magistrate when the conviction was recorded. Nature of proceedings 7 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 8 These are not adversarial proceedings in which Mr. Infarinato carries an onus of proof. Mr. Infarinato, by making the application, triggers a process of merits review by the Tribunal. Mr. Infarinato does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Infarinato and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. 9 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 10 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Applicable Legislation 11 Section 15 of the Act provides: " 15 Restrictions on granting licence-general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or (b) is not of or above the age of 18, or (c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or (d) is not competent to carry on the security activity to which the proposed licence relates, or (e) is not an Australian citizen or a permanent Australian resident. (2) The Commissioner must refuse to grant an application for a licence to carry on a security activity that involves the possession of a firearm if the applicant is not authorised by a licence or permit under the Firearms Act 1996 to possess or use the firearm. (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (5) A reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6)." 12 The issue for this Tribunal is: what is the correct and preferable decision? The decision to be made is whether it would be contrary to the public interest to grant Mr. Infarinato a security industry licence. The Commissioner's Case 13 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner argues that the grant of the licence would be contrary to the public interest. 14 The Commissioner relies on the same argument that was used as a basis for the internal review decision with the significant difference being that the charges were pending at the time of the internal review decision had been finalised by the Local Court prior to the hearing of this matter. The Commissioner therefore relies on the fact of Mr. Infarinato's conviction as providing sufficient reason to refuse the licence application. The reasons provided following the internal review stated: "D. REASONING PROCESS: 6. The Security Industry Act, 1997 established a scheme for licensing people to carry on security activities. Within the Act, there are clearly defined circumstances where the Commissioner may refuse to grant a licence where it is not considered in the public interest to do so. I have formed the view that the legislative provision listed above is relevant to your client's particular case. 7.After fully and independently considering all relevant matter, I make the following fresh determination. 8.Your client's application has been received for a Class 1ABC security licence: The duties authorised by a Class 1A licence include the guarding and protection of persons and property including the transport of cash and other valuables (hotel, club revenue and gaming machine takings), static and mobile patrols and security monitoring station activities. The activities authorised by a class 1 B licence include providing close personal protection. The duties authorised by a class 1C include engaging in crowd control activities at public and private venues which may include public exhibitions and concerts, monitoring access to licensed premises, hotels, clubs, nightclubs, etc and ejecting patrons from these venues. 9. When considering an individual's right to be granted a licence under the Security Industry Act, 1997, I formed the view that any decision should be made with the specific consideration to whether the grant of a security licence is in the public interest. In this regard, criminal record and other checks are undertaken as to identify persons who fail to meet the criteria and thereby refuse the grant of such licences. 10. I have taken into account the details of the offence for which your client is currently charged with and waiting for determination by a Magistrate. On Friday 21 February 2003, about 12.50 the victim was driving north on the Princes Highway Arncliffe with two passengers. The victim was at the traffic control lights at the intersection of the Princess Highway and Kyle Street Arncliffe. The victim noticed your client Mr. Corrado Infarinato driving a black Toyota Celica registration number XHR-532 (NSW). Your client at this time allegedly was sounding the horn of his vehicle at a mini van, which was stopped at the intersection of the Princes Highway and Kyle Street, Arncliffe. Your client has allegedly pursued the mini van for a short time along the Princes Highway to the intersection of Lusty Street Arncliffe. The mini van has turned into Lusty Street to avoid further conflict with your client. At this time the victim was about one hundred metres from your client's vehicle. Your client has allegedly exited his vehicle and was seen to gesture towards the victim by pointing to the ground and waiving his hands towards the victim. The victim was travelling in lane one of three travelling north on the Princes Highway Tempe. The victim has approached the intersection of Princess Highway and Gannons Street Tempe when the victim saw your client pass him in lane three. Your client appeared to slow down and the victim has passed your client's vehicle. At this time your client has allegedly been seen by the victim to veer between lane two and lane three. Your client was ahead of the victim's vehicle at this time. The victim has continued to drive north on the Princes Highway Tempe when the victim has observed-traffic stopped at the set of lights to this intersection. Upon stopping at the intersection of Terry Street and Princes Highway Tempe the victim has observed your client's vehicle stopped alongside of-the victim. Your client was observed by the victim to alight from his vehicle and proceeded to point to the grounds in what appeared to be an aggressive manner. A short time later traffic has began to move and the victim has turned left into Terry Street Tempe to avoid further confrontation with your client. At this time the victim felt afraid and intimidated by the actions of your client. The victim has continued along Terry Street Tempe heading towards Unwin's Bridge Road Tempe. As the victim approached the intersection of Terry Street and Unwin's Bridge Road the victim's son has observed your client in his vehicle following the victim. The victim has turned left into Unwin's Bridge Road and proceeded to drive west. At this time the victim has picked up his mobile telephone and contacted "000" emergency number. The victim has proceeded to inform the operator of the incident that was in progress. The victim on approaching Lymerston Street and Foreman's Street Tempe has observed your client pass the victim's vehicle. At this time your client has stopped his vehicle in the middle of the road obstructing traffic. The victim has continued travelling along Unwin's Bridge road to avoid further conflict with your client. The victim has approached the intersection of Gannon's Road and Griffiths Street Tempe and turned left at the roundabout. The victim has travelled about two hundred and fifth metres and the victim had thought he had lost your client, as the victim could not see your client's vehicle. The victim at this time has stopped his vehicle on Gannons Street Tempe. The victim has looked a short distance away towards the roundabout and observed your client has stopped his vehicle at the roundabout, which in turn was obstructing traffic. At this time the victim could hear your client yelling but could not understand what was yelling. The victim has observed your client holding what appeared to be an iron bar in his hand. The victim was still speaking to the emergency operator on his mobile telephone. A short time later whilst the victim was standing on the footpath he observed your client walk back towards his vehicle and drive off. At no time did the victim give permission for your client to pursue the victim in his vehicle and did not give your client permission to threat or verbally abuse the victim. 11. I have also taken into consideration a number of Police reports involving your client regarding incidents of a similar nature as the one just described. 12. In respect of the term, 'public interest' "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals " Director of Public Prosecutions v Smith (1991) 1 VR 63 13. I consider that the need for your client to obtain a security licence is subordinate to the need to ensure public security; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 provides: "The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the `scope and purpose' of the legislation." 14. The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely towards an individual. 15. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal: Toleafoa v Commissioner of Police [1999] NSWADT 9. 16. It is my understanding that the authority conferred upon the holder of a security licence is granted by the Commissioner of Police with the clear expectation that the licensee utilises that authority for the good order of society and for the well being of its members or 'in the public interest'. 17. In respect of the issue of public interest, I have taken into account the circumstances of these incidents. In light of these details I would find it difficult to convince the public that your client should be permitted to hold a security licence. I am not satisfied that he possesses the necessary attributes consistent with the standards of behaviour required and expected by the public for a licence holder. In this regard, I am unable to expect that your client could be trusted by the public to properly perform the duties of watching, guarding or protecting property, act as a bodyguard or carry out crowd control functions in a professional manner, given his demonstrated lack of self control and restraint. 18. Finally, public interest in the context of Section 15 (1) (3) of the Security Industry Act 1997 requires paramount consideration be given to public safety. I have taken into account the alleged offences involving violence committed by your client and his total disregard for the law and authority demonstrated by his actions. These actions totally contradict the security activities for which your client seeks to be licensed. Having considered the aforementioned, and with a focus upon public safety, I am not satisfied that it would be in the interest of the public for your client to hold a security licence and accordingly affirm the decision of the original delegate of the Commissioner to refuse the grant of your client's application for a security licence." 15 Ms. Paterson, on behalf of the Commissioner, submitted that the issue for determination is one of public interest and not one of whether Mr Infarinato is a fit and proper person. Therefore the evidence relating to Mr Infarinato's character is of limited value. In any event, the references relating to his workplace conduct are limited to his workplace. Similarly, the reference from Mr Infarinato's doctor merely states that Mr Infarinato is not known to act violently. These statements need to be contrasted with the fact that he has been proven to have acted violently and in anger. Ms. Paterson submitted that the testimonials should therefore be given little weight. 16 The Tribunal can take account of all the material before it. She submitted that the weight of evidence provided supports the Commissioner's position. Ms. Paterson argued that Mr Infarinato's conviction relates to a road rage incident ("the incident"). Mr Infarinato entered a guilty plea in the Local Court. He was convicted on the criminal standard. As well as the conviction, a fine was imposed and he was disqualified from driving for 12 months. The court did not see fit to give an order pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999 without proceeding to a conviction. The Tribunal should not look beyond these facts. 17 She urged the Tribunal to conclude that the evidence reveals not just a transgression of driving but that it was an incident involving another member of the public. That person was caused such concern that he was in fear. Mr Infarinato demonstrated an unreasonable degree of aggression. It can not be seen as just a momentary lack of judgement because it continued. Mr Infarinato followed the other driver involved in the incident. There is evidence before the Tribunal in the form of a COPS report, which suggests that Mr Infarinato has been involved in another incident involving road rage. Mr Infarinato has denied that he was involved in that incident as alleged. Ms. Paterson submitted that even if this was a one off event standing alone, there is sufficient cause for concern about Mr Infarinato in relation to this type of licence. 18 Ms. Paterson submitted that this is not a case where it is appropriate to grant a licence subject to a condition limiting his employment to a particular employer. She argued that it would not be possible to monitor Mr Infarinato employment so as to ensure that he complied with such a condition. Mr. Infarinato 's case 19 Ms. Gerace appeared on behalf of Mr. Infarinato. A copy of the Sutherland Local Court file was produced under summons and was put in evidence. Ms. Gerace relies on a statement provided by Mr. Infarinato which is contained in that file as well as several testimonials provided on behalf of Mr. Infarinato for the purposes of the Local Court proceedings. There is some question about the extent of the knowledge that the authors of those testimonials had of these proceedings. 20 Mr. Infarinato's account of the incident is contained in the record of interview contained in the Local Court file. Essentially, Mr. Infarinato maintained that the other driver involved in the incident had acted inappropriately and that he had become frightened and angry. 21 Ms. Gerace argued that there is no evidence that Mr. Infarinato was the driver involved in the incident. While there is no dispute that his vehicle was involved, Mr. Infarinato was never identified. 22 Ms. Gerace referred to a written apology from Mr. Infarinato to the driver of the other vehicle involved in the incident. That apology is contained in the Local Court file. In his apology Mr. Infarinato stated: "I Corrado Infarinato would like the chance to publicly apologise to David Ferguson. It was not my intention to intimidate or to induce any fear, and I wish for him to know that I deeply regret the incident. I hope that he can be understanding and recognise the sincerity of my apology. Furthermore I wish to explain that my actions on that day were totally out of character and I do regret them deeply. As a result of my actions I have had my Security Licence cancelled. I lost my job and I have been off work for the last three months. Retaining my Security Licence and current employment will depend on the outcome of this court case. I would also like to make it clear that I have no ill feelings towards David Ferguson. Thank you for listening to me." 23 Ms. Gerace submitted that Mr. Infarinato's conduct showed a decided lack of judgement. He failed to behave in a manner which other drivers should be able to expect and in doing so he caused fear in the other driver involved in the incident. By his apology, Mr. Infarinato has conceded this much and has expressed regret. 24 Ms. Gerace further submitted that the testimonials provided on behalf of Mr. Infarinato support his contention that his actions in regard to the incident were totally out of character. It is also significant that Mr. Infarinato cooperated with the police and spoke openly to them. He has demonstrated that he is able to act with control. She argued that it is not in the public interest that he be denied the licence. She submitted that there was nothing before the Court or the Tribunal that suggests that the public interest requires the refusal of Mr. Infarinato's application. The public interest is not about punishing people for isolated incidents. 25 Ms. Gerace said that Mr. Infarinato does not seek a general licence. He seeks a licence to be able to work with his former employer. Reasons and decision 26 On the evidence before me I am satisfied that Mr. Infarinato has been convicted of the offence as asserted by the Commissioner. This is not in dispute. I accept that in this case the facts sheet that the Commissioner has put in evidence is of little value as it fails to identify Mr. Infarinato as being the driver of the vehicle involved in the incident. Nevertheless, Mr. Infarinato has been convicted of a very serious offence. Despite his plea of guilty the Court imposed a reasonable severe penalty. 27 The evidence that was before the Local Court includes a statement from the other driver involved in the incident and an apology that Mr Infarinato offered to that driver. The combination of that statement, Mr Infarinato's apology and the fact that Mr Infarinato pleaded guilty of the charge and was accordingly convicted leads me to the view that the events probably occurred as alleged by the other driver. This suggests that Mr Infarinato has a problem controlling his temper, is abusive and aggressive. The duties authorised by the licence Mr Infarinato seeks include the guarding and protection of persons and property, static and mobile patrols, crowd control activities at public and private venues, monitoring access to licensed premises, hotels, clubs, nightclubs, etc and ejecting patrons from these venues. He has demonstrated behaviour that is not appropriate for a security guard carrying out those activities. 28 The issue for determination is one of public interest. In my view, the reasons provided in relation to the internal review decision that I have set out above correctly state the law in relation to the public interest considerations. It is apparent from the views expressed by the Appeal Panel at paragraph 25 of its decision in Toleafoa v Commissioner of Police [1999] NSWADT 9 that the "public interest" is an inherently broad concept and that in choosing whether to exercise a discretion on that basis a wide range of factors may be taken into account. It is also apparent that the public interest discretion operates in areas in which Mr. Infarinato's character is of secondary concern. 29 There is no dispute that Mr. Infarinato has been convicted of a serious offence. That conviction does him no credit. The Commissioner has good cause to be concerned that the objects of the legislation are upheld in the exercise of his discretion. The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. In the circumstances of this matter, after considering the additional evidence that was available at the hearing and not available to the Commissioner's delegate when making the decision under review, I agree that there are pubic interest reasons to refuse Mr. Infarinato the licence that he seeks. In my opinion the public would be rightly concerned if a security licence were issued to a person who had exhibited conduct of the kind that Mr. Infarinato exhibited in relation to the incident. Mr. Infarinato may well benefit from anger management therapy and I suggest that he give careful consideration to such an approach before again applying for a security licence. If he repeats the conduct that lead to his conviction, he can expect little sympathy from the Courts. 30 Having reached this conclusion it follows that I agree with the decision reached by the Commissioner's delegate. Accordingly, that decision is affirmed. Orders The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr. Infarinato is affirmed.