Court v Commissioner of Police, NSW Police Service [2004] NSWADT 222

CITATION: Court v Commissioner of Police, NSW Police Service [2004] NSWADT 222 DIVISION: General Division APPLICANT PARTIES: Shane Michael Court RESPONDENT Commissioner of Police, NSW Police Service FILE NUMBER: 043025 HEARING DATES: 15/06/2004 SUBMISSIONS CLOSED: 06/30/2004 DATE OF DECISION: 10/05/2004

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 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes Act 1900 Security Industry Act 1997 Security Industry Regulation 1998 Court -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 169 CASES CITED: Drake v Minister for Immigration and Ethnic Affairs McDonald v Director General of Social Security (1984) 1 FCR 354 R v lngrassia (1997) 41 NSWLR 447 APPLICANT REPRESENTATION: T McGill, Barrister RESPONDENT A Arnott, Solicitor ORDERS: 1. The decision of the Commissioner of Police, New South Wales Police Service to refuse the application by Shane Michael Court for the grant of a Class 1A security licence is affirmed

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 Shane Court under the Security Industry Act 1997 ("the Act") for the grant of a Class 1A security licence. 2 Mr Court had previously held a Class 1A Security Licence. That licence was issued on 29 September 1998 and expired on 9 October 2003. He reapplied for issue of a licence after the expiry date. The NSW Police Service received that application on 16 October 2003. The application was refused and a Refusal Notice was served on 1 December 2003. 3 By letter dated 23 December 2003 Mr Court's solicitors requested an internal review of the decision to refuse the application. A delegate of the Commissioner undertook the review and it was finalised on 7 January 2004. The decision ("the internal review decision") was made that the Commissioner's decision to refuse Mr Court's licence application is to stand. The Commissioner's delegate gave detailed reasons for the decision and Mr Court was notified of the outcome of the review and those reasons. Background 4 In March 1999 Mr Court went to the Dapto Markets and purchased a car radio and a hydraulic jack for $150.00. After he took the radio to his local garage to have it fitted, he was contacted by police and charged with "goods in custody." The Local Court in Wollongong found the charge proved and proceeded under section 556A of the Crimes Act 1900. Mr Court was given a recognisance in the sum of $500 to be of good behaviour for 12 months. He appealed to the District Court against this decision. The appeal was an "all grounds" appeal where the judge decides the matter again on the basis of the transcript in the Local Court. The District Court found Mr Court guilty of the offence but directed that the charge be dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999. 5 Mr Court's licence was subsequently cancelled. He successfully sought a review of that decision in this Tribunal and his licence was reinstated. The reasons for that decision are recorded as Court -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 169. 6 In January 2003 Mr Court applied for a Master security licence on behalf of the company Good Kids Pty Limited. The Commissioner refused that application and Mr Court applied to this Tribunal for a review of that decision. The application came before Judicial Member Higgins on 12 September 2003 at which time the Commissioner's decision was affirmed. 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 Court carries an onus of proof. Mr Court, by making the application, triggers a process of merits review by the Tribunal. Mr Court 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 Court 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: "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: (a) has, within the period of 10 years before the application for the licence was made, been convicted 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, or (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, or (c) has, within the period of 10 years before the application for the licence was made, been removed or dismissed from the Police Service of New South Wales or from the Police Force of any other jurisdiction (whether in Australia or overseas). (2) However, if the applicant concerned has been so removed from the Police Service of New South Wales by the Commissioner under section 181D of the Police Service Act 1990 on grounds other than the applicant's integrity as a police officer, the removal of the applicant in those circumstances is a discretionary ground for refusing the granting of the application for a licence. (3) The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct. (4) The Commissioner must refuse to grant an application for a master licence if the Commissioner is of the opinion that the applicant (or, if the applicant is a corporation, any person who is a director or who is concerned in the management of the corporation) has, within the period of 5 years before the application was made, been declared bankrupt. (5) A reference in subsection (1), (2) or (3) to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant." 12 Clause 11 of the Security Industry Regulation 1998 relevantly provides: "11 Offences that disqualify applicants: section 16 For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (d) Offences involving fraud, dishonesty or stealing An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more." 13 At the time of Mr Court's initial Local Court proceedings section 556A of the Crimes Act 1900 provided: "556A Power to permit release of offenders (1) Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either: (a) dismissing the charge, or (b) discharging the offender conditionally on his or her entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order. (1A) A recognizance mentioned in subsection (1) shall be conditioned upon and subject to such terms and conditions as the court shall order. (1B) The power conferred on a court by subsection (1) does not extend to the Children's Court or to any other court exercising the powers of the Children's Court. (2) Where an order is made under this section the order shall, for the purpose of revesting or restoring stolen property, and of enabling the court to make orders as to the restitution or delivery of property to the owner, and as to the payment of money upon or in connection with such restitution or delivery, and for the purpose of the exercise of any power conferred on the court by Part 4 of the Victims Compensation Act 1996, have the like effect as a conviction. (3) Where under subsection (1) a charge is dismissed or an offender is conditionally discharged, the person charged shall have the same rights as to appeal on the ground that he or she was not guilty of the offence charged as he or she would have had if convicted of the offence. 14 Section 10 of the Crimes (Sentencing Procedure) Act 1999 provides: "10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence." The Commissioner's Case 15 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The reasons provided following the internal review provide a reasonable summary of the Commissioner's arguments. Those reasons stated in part: "D. REASONING PROCESS: 7. The Security Industry Act, 1997 established a scheme for licensing people to carry on security activities. Within the Act, there are clearly defined offences where the Commissioner must refuse to grant an application for a licence. I have formed the view that the legislative provisions listed above are relevant to your client's particular case. Further, I have noted the submission made by you on behalf of your client. 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 1A 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. 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 on the basis that the legislation has quite clearly been enacted to exclude from the industry persons with convictions for certain criminal offences. The Second Reading speech for the Security Industry Bill by Mr. Whelan (then the Minister for Police) on 19 November 1997 demonstrated that this was the clear intention of parliament: "... The legislation will therefore exclude from the industry persons with convictions for certain criminal offences within the past 10 years…" Hansard page 2088) 10. I have taken into account the details of the offence committed by your client and note that at 10.47pm on 17 February 1999 unknown persons have gained entry into the premises of In Car Installations by removing a first floor window relating to office area. The offenders had to cut steel bars on the inside of the premises to gain entry they also forced the front lock of the premises. It is unsure why both entry points were utilised but upon arrival by security staff both entry point were open. Once inside the offenders have removed the set property. The incident was suspicious as the offenders have removed property in areas in which only staff were aware of items in such location, the offenders have removed stock which was in excellent condition but left stock requiring repairs behind; these items were not marked in any way which suggested such item required repairs. On the 30 March 1999 your client went to Tannous Enterprises to have a pioneer car stereo fitted to his car, this stereo being s/n SKTRO15271ES model KEH1030. This stereo was confirmed stolen from the original break and enter. Your client was interviewed and issued with a field court attendance notice to appear before the Court. 11. I have read your submission to support your client's application and if this were a matter where I was at liberty to exercise my discretion I would take this material into consideration during my reasoning process. However, in your client's case the applicable law prevents me from doing so. 12. Not withstanding all of the aspects mentioned, it should be clearly understood that having been satisfied that the offence for which your client was found guilty, without proceeding to a conviction, falls clearly within the provisions of Section 16(1) (b) of the Security Industry Act 1997 and Clause 11 (d) of the Security Industry Regulation 1998. In this regard no discretion exists for the grant of a licence in your client's particular situation and accordingly his application must be refused. E. DECISION: The Commissioner's decision to refuse your client's application for a Class 1A security licence is to stand." Mr Court's case 16 Mr Court's case is essentially that the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 are more onerous than those of section 556A of the Crimes Act 1900. Section 556A was repealed 15 days before Mr Court's appeal to the District Court. As a consequence he now has a finding of guilt against him whereas that was not the case under the Local Court decision where the finding was that the charge was proved rather than a finding of guilt. This is the case despite the fact that Mr Court received a better result in the District Court. 17 Mr McGill's argued that had Section 556A of the Crimes Act been in force on 18 April 2002, the date on which Mr Court's appeal to the District Court was heard and determined, the Court would have found the offence proved and dismissed the charge without conviction, rather than finding him guilty and dismissing the charge without conviction. 18 Mr McGill conceded the clear words of section 16 of the Act. However, in his submission, the Tribunal should find that the Commissioner is estopped from using that mandatory provision in view of the fact that Mr Court gained a better result in the District Court than in the Local Court. 19 In support of his submission Mr McGill referred to views expressed by Gleeson CJ in the matter of R v lngrassia (1997) 41 NSWLR 447 where the Chief Justice stated at page 449 and 450: "The essence of s 556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps "without proceeding to conviction". The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, "a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice". … In Cobiac v Liddy (at 275), Windeyer J said, with reference to corresponding provisions in South Australian legislation, that, as a matter of general principle: "One thing is I think quite certain: that is that, if a man be not convicted, he is not to be punished." It is contrary to common law principle that a person who has not been convicted of an offence should be punished by order of a court. No doubt, legislation expressed in sufficiently clear terms may displace that principle, but that has not been done by the language of s 556A. The conditions which may be imposed (or, more accurately, to which an offender may be required to submit) under s 556A(1)(b), cannot be of such a nature that they involve punishment for an offence of which, by hypothesis, the offender has not been convicted. Reasons and decision 20 In my view the reasons provided in relation to the internal review decision correctly state the law in regard to the approach to be taken in deciding this matter. While I appreciate that Mr Court finds himself in a worse position insofar as it relates to his licence than might have been the case had section 556A not been repealed, the fact remains that it was repealed. The words of section 16 of the Act are clear. Mr Court has been found guilty of an offence involving dishonesty without a conviction being recorded. The Commissioner must therefore refuse to grant his application for a licence. I do not agree that the Commissioner is estopped from adopting this position. The circumstances of this matter are directly covered by section 16. 21 In the Second Reading speech on the introduction of the Security Industry Bill into the NSW Legislative Assembly on 19 November 1997 the responsible Minister, Mr Whelan the then Minister for Police stated: "If at any time a person fails to meet the licensing criteria, his or her licence will be refused or revoked. These provisions are designed to protect the industry against infiltration by the criminal element and ensure that sensitive information which may assist in the planning of armed robberies does not fall into the wrong hands." 22 Similar sentiments were expressed on the introduction of the Security Industry Amendment Bill into the NSW Legislative Assembly on 129 November 2002 where Mr Gaudry, Parliamentary Secretary on behalf of Mr Iemma, stated: "Clearly, it is in the public interest that persons thought by police to present a public safety or a criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged with a specific criminal offence." 23 Given these clear statements, I find no reason to conclude that the Commissioner should not apply the clear intention of the Act that persons who, in the previous 5 years, have been found guilty of an offence involving dishonesty without a conviction being recorded should be excluded from the industry. I agree with the Commissioner's view that there is no discretion to grant the licence sought. 24 Accordingly, the correct and preferable decision is that the Commissioner's decision be affirmed. Orders 1. The decision of the Commissioner of Police, New South Wales Police Service to refuse the application by Shane Michael Court for the grant of a Class 1A security licence is affirmed.