O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130

CITATION: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130 DIVISION: General Division APPLICANT PARTIES: Dion O'Neill RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 053038 HEARING DATES: 26/04/2005 SUBMISSIONS CLOSED: 04/26/2005 DATE OF DECISION: 06/14/2005

BEFORE: Higgins 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 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Toleafoa v Commissioner of Police [1999] NSWADTAP 9 APPLICANT REPRESENTATION: In person RESPONDENT P Mclaughlin, solicitor ORDERS: The decision of the Commissioner to refuse the Applicants application for a class 1A security licence is affirmed.

REASONS FOR DECISION Background 1 This is an application by Dion O'Neill ("the Applicant") seeking review of a decision by a delegate of the Commissioner of the NSW Police Service ("the Commissioner") to refuse his application for a class 1A security licence. The Commissioner refused the application on the grounds that he considered that the grant of the licence would be contrary to the public interest (s.15(3)) of the Security Industry Act 1997 ("the SI Act")) and he was satisfied that the applicant was not a fit and proper person to hold a class 1A licence (s.15(1)(a) of the SI Act). 2 The factual basis on which the Commissioner made the abovementioned finding was an incident that occurred on Sunday 2 June 2002, when, following an argument, the Applicant stabbed his father's leg with a kitchen knife. As a result of that incident, the Applicant was charged with an offence of maliciously inflict grievous bodily harm contrary to s.35(1)(b) of the Crimes Act 1900. 3 On 18 June 2003, the Applicant was convicted of the abovementioned offence and was sentenced to a bond under s.9 Crimes (Sentencing Procedure Act) 1999 and was ordered to be under the supervision of the NSW Probation Services for a period of two years. He was also ordered to complete any courses and programs directed by the Probation Service and to continue to attend psychiatric treatment and to take medication as prescribed by doctors and service providers. 4 The Applicant appealed this decision, and on 3 October 2003 the Wollongong District Court dismissed his application for leave to appeal out of time, and his conviction and penalty was confirmed. It would appear that subsequent to this, the Applicant made an application for a re-hearing. That application was heard on 21 November 2003, and the District Court of NSW at Wollongong again confirmed his conviction and penalty. Issues 5 The role of the Tribunal is to determine whether, having regard to the underlying facts in this matter and the applicable law, the decision of the Commissioner is the correct and preferred: see s.63 of the Administrative Decisions Tribunal Act 1997. 6 In this application, the underlying acts and omissions that gave rise to the criminal conduct of the Applicant is not in dispute. Nor is there a dispute about the mental state of the Applicant at the time he committed the offence. What is in dispute is whether the nature of the Applicant's unlawful conduct and his current mental state are such that: (a) he is not a fit and proper person to hold a class 1A security licence; and (b) it would be contrary to the public interest to issue him with a class 1A security licence. Relevant legislation 7 The relevant legislation is that contained in the SI Act. Division 2 of Part 2 of the SI Act creates three classes of security licence. These are: Master Licence (s.10) Class 1 Licences (s.11) Class 2 Licences (s.12) 8 Section 11 of the SI Act creates three sub-classes of a Class 1 licence. The relevant sub-class, for the purposes of this application, is a Class 1A licence, which "authorises the licensee to patrol, guard, watch or protect property (including the guarding of cash in transit) or to carry on such other activities as may be described by the regulations. 9 Division 3 of Part 2 sets out the procedures and criteria for the issuing of a security licence. Section 15 of the SI Act sets out the criteria on which the Commissioner must or may refuse to grant an application for a security licence. These include the following: "15(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 … (2) … (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". (emphasis added) The incident of Sunday, 2 June 2005 10 On the material before the Tribunal, it would appear that on Sunday 2 June 2002, the Applicant and his father went to the local ex-Serviceman's club to have dinner. On the way home they became involved in an argument. In a signed statement, dated 19 June 2002, the Applicant's father said the following: "We had a disagreement on the way home from the ex-Servo and we ended up not talking in the car. When we got home, the silence continued. I went into the kitchen to clean up, and the argument started up again. I ended up telling Dion, 'As from Thursday this week, you're on your own. I'll go my way and you go yours'. We were both heated and angry at this stage. I turned to wash the dishes and I heard Dion say 'What do you fucking mean by that?' in an angry way and all of a sudden I felt a sharp pain in my left thigh. I looked down and said 'What have you done?' as I saw a knife sticking into my left thigh. I pulled the knife out and he said 'Sorry Dad, I'll call 000, I'll get help'. I staggered towards the front door. I then remember staggering back from the door. I then went again towards the front door and this time I opened the door. I got down on the steps or someone helped me down there. I remember vomiting my heart out and saying 'Has the ambulance been called?'. I remember someone saying 'The ambulance has been called'". 11 It would appear that police were called and they found the Applicant sitting up against the back fence. He was arrested, and the arresting police in their statements said that the Applicant appeared very distressed and confused, and that when he was in the police vehicle he started cuddling himself with his head down, and was continually muttering things which could not be understood. 12 Once at the police station, the Applicant participated in a record of interview. It would appear that he was at all times co-operative and polite, and answered questions to the best of his ability. That record of interview is summarised in the police fact sheet as follows: "… He stated that he had only a minor verbal argument with his father, and that it had all ended by the time he grabbed the knife. He stated that, at worst, he only wanted to rip his father's pants with the knife, as some sort of joke or gesture. He stated that he had no intention of harming his father and that he could not recall most of the incident. He stated that he could not recall why he stabbed his father". 13 In his statement of 19 June 2002, the Applicant's father also said the following: "I understand and appreciate that my son has been charged with stabbing me. I do not wish for any further police action and I would like the police to withdraw all the charges against my son. I do not want my son convicted at court with stabbing me. I believe that my son requires psychiatric assistance and I will endeavour to help my son and seek it for him. I have a good relationship with my son. I do not want any further police action against my son. I will get help for my son's psychiatric health…" 14 As a result of the incident, the Applicant sought psychiatric help, as well as cognitive behaviour assistance. 15 The Commissioner tendered into evidence documents that had been produced by the Wollongong District Court pursuant to a subpoena. These documents included: - a background report, dated 18 June 2003, prepared by Pamela Verrender, Client Assessment & Referral Consultant of Legal Aid NSW, - a report, dated 17 June 2003, from Raymon Doon of the Probation & Parole Service, - a report of Dr Gordon R.W. Davies, dated 4 May 2003, - two letters from Maria Roberts, a Registered Psychologist from Relationships Australia, dated 28 June 2002 and 17 June 2003, and - a letter, dated 18 August 2003, from Dr N.A Rao, the Applicant's general practitioner. 16 The background report of Ms Verrender set out the Applicant's family history. At that time he was 20 years of age. He had been living with his father following the separation of his mother and father when he was about 11 years old. He had two older sisters, one of which lived with his mother. The separation of his parents was very acrimonious and he had a "disturbed upbringing, characterised by emotional abuse by his mother …" At the time of the report the Applicant was living with his mother and her partner. In the "summary and professional opinion" of her report Ms Verrender said: [The Applicant] presented as a pleasant, co-operative but highly anxious young man. The remorse was evident during the interview. He feels guilty for stabbing his father, and it appears that much of the incident has been blocked from his mind. He is unable to make sense of the violence, and feels deeply ashamed of his behaviour. There is no history of violence. In fact, the only confrontations that [the Applicant] has experienced has been through the school yard, where he went through a period of being bullied and picked on by his peers. These confrontations were mainly around basketball games and being threatened by a student. At no time during these interactions was there any violence involved. … The counselling that [the Applicant] is receiving has changed his outlook considerably. He no longer carries the burden of unexpressed emotional turmoil that he has been experiencing over the years. … [The Applicant] is deeply affected by his aggressive behaviour, which is totally out of character, and has been confirmed as such by his father. …" 17 The report of Mr Doon related to the suitability of the Applicant for various sentencing alternatives based on the report of Dr Davis. In this regard it is noted that Mr Doon said that he had some reservations about the Applicant's suitability for a Community Service Order in light of Dr Davies report. 18 In his report and under the heading "Summary and Opinion", Dr Davies said: "[The Applicant] is a twenty-year old man who has had a clearly disturbed upbringing and has manifested significant difficulty in coping for some years. There is no history of substance abuse and his attitude and behaviour, including the impulsive stabbing of his father clearly raise the concern that he may be suffering from an underlaying schizophrenic illness. This diagnostic assessment is supported by the results of objective testing. However at present [the Applicant] shows no overt diagnostic signs of psychosis. At the time when he was seen by Dr Kaplan in July it appears that he was generally more disturbed with some agitation and an inappropriate affect but again no diagnostic symptoms of psychosis was observed. Because of this diagnostic situation there is no present justification for the prescription of antipsychotics and treatment has so far confirmed to support some cognitive psychotherapy. However I would most strongly recommend to the Court that there should be an ongoing requirement in its disposal of the matter that [the Applicant] continue to attend regularly for psychiatric treatment and to accept medication if it is prescribed." 19 The letters from Ms Roberts confirm the Applicant's attendance for counselling in June 2002 and then from July to November 2002 and again in June 2003. 20 In his letter Dr Rao says that he had known the Applicant since he was 1 year old. In respect to the Applicant's health as at 18 August 2003 he said: "… He is on medication and needs additional medication. He also needs specialist's attention. Most of his actions could well be attributed to his clinical state of hypomania, which has not been adequately treated." Applicant's application for a licence 21 In support of his application for a class 1A security licence, the Applicant provided the following documents: - A letter from Mark Hollis, dated 15 October 2004, certifying that the Applicant had worked as a loss prevention security officer from 3 January to 1 August 2003 and stating that He, Mr Hollis, supported the Applicant in his application for a security licence. - A letter from Dr Davies, dated 28 August 2004, in which he certified that the applicant was "now fit to work in the security industry". In his letter Dr Davis did not explain the basis on which he made his certification. Nor did he provide any information about the Applicant's current mental health. - A letter from Lenore Preston, dated 27 August, stating that the Applicant had been a lodger in her home for the previous 12 months. She says that in that time she had come to know the Applicant very well and that she had found him to be "reliable, trustworthy and a person of extremely good character." 22 In support of his request for internal review, the Applicant provided a letter, dated 3 December 2004, from Dr Rao. In that letter Dr Rao says: "[The Applicant] is on medication and appears to be doing satisfactorily. It appears that [the Applicant's] hypomania is being addressed satisfactorily." 23 In support of his application for review, the Applicant also provided the following: - A letter, dated 7 June 2004, to the Applicant, from Kate Baudinette, the Applicant's Probation and Parole Officer. In that letter Ms Baudinette says "Due to your satisfactory response to supervision, your reporting obligations have been terminated and you are not longer required to report to this Service." - letter, dated 5 March 2002, from John Woodhouse who said that the Applicant was a decent and reasonable young man who is open to learn and honest. 24 At the hearing of the matter, the Applicant provided the Tribunal with a letter from Dave James, the manager of Active Security Operations Pty Ltd. In that letter Mr James says that his company would consider hiring the Applicant if a position became available and he was licensed. From the content of the letter it would appear that Mr James was aware of the Applicant's criminal conduct. Fit and proper 25 As mentioned in [8] above, if it is found that the Applicant is not a fit and proper person to be issued with a security licence, s.15(1)(a) of the SI Act provides that the Commissioner must refuse his application. That is, the legislation does not give the Commissioner any discretion where such a finding is made. Accordingly, it is convenient to consider this issue first. 26 The term "fit and proper" is not defined in the SI Act. However, the meaning of the term "fit and proper person" has been considered by the Tribunal on numerous occasions, and the Tribunal has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, and the decision of the High Court in Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156. In Bond, Chief Justice Mason said (at [63]) the following: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So to is the weight, if any, to be given to matters favouring a person whose fitness and propriety are under consideration". 27 In Hughes & Vale, in a joint judgment the High Court said the following: "The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the wider scope for judgment and indeed for rejection. 'Fit' or 'idoneus' with respect to an office is said to involve three things, honestly knowledge and ability…. ". 28 In considering whether, as a matter of fact, an applicant for a licence is a fit and proper person, it is well established that a factor to be taken into account is the activities in which the person will be engaged if an authority is granted. In this application, the relevant activity is that set out in s. 11(1)(a) of the SI Act, namely patrolling, guarding and protecting property. Although this activity does not directly involve contact with members of the public, as general rule, such activity involves the monitoring or protection of property from unauthorised interference, including interference by members of the public. This means that if the Applicant were to be issued with a licence he is likely to have contact with members of the public. 29 In my opinion, from the material before the Tribunal, including the evidence given by the Applicant and his father at the hearing, no question arises about the Applicants honesty and knowledge. He is clearly well respected by others and the offence for which he was convicted was not an offence of dishonesty. 30 The offence for which he was convicted was an offence of violence and had he been imprisoned or fined $200 or more the Commissioner would have been required to refuse his application: see s.16(1)(a) SI Act and cl.11(c) Security Industry Regulation 1998. Furthermore, that refusal would operate for 10 years after the date of conviction. Even though, this mandatory refusal does not apply to this particular application, these provisions provide an indication that Parliament regarded applicants with convictions for an offence of violence as being unsuitable to be issued with a security licence. However, each application, which does not fall within the category of a mandatory refusal, must also be determined on its own facts. 31 In this application, there does not appear to be any question that the Applicant's conduct on 2 June 2002, although serious, was an isolated incident, which occurred in private and not in a work environment. From the material before the Tribunal, it is clear that the Applicant regretted what he had done. Perhaps the most significant factor arising from the material before the Tribunal is the fact that, the Applicant had been suffering from a form of mental illness that had not been identified or treated at the time the offence occurred. While this is no excuse for his conduct, in my opinion, at the time of the hearing of this application it was the Applicant's mental illness, which reflected on his ability or fitness to be the holder of a security licence and not the conduct he was convicted of. 32 The Court in sentencing the Applicant, would appear to also have taken this illness into account by requiring the Applicant to complete any courses and programs directed by the Probation Service and to attend psychiatric treatment and to take medication as prescribed by doctors and service providers. It would appear that the Applicant has complied with this order, but on the material before the Tribunal it is not possible to make any finding as to the Applicant's mental health at this point of time. Although he has satisfied the requirements of the Probation Service, there is no evidence of what those requirements were or his responses thereto. The letter from Dr Rao, dated 3 December 2004, is also of little assistance. While he makes reference to the Applicant being on medication he does not elaborate on what he means by the Applicant's mental illness as being addressed satisfactorily. Finally, the letter from Dr Davis, dated 28 August 2004, is also of little assistance as he does not provide any information about the Applicants current state of mental health or what treatment he had been undergoing, if any, since his report of 4 May 2003. In this regard it is not for Dr Davis to certify, for the purposes of the SI Act whether the Applicant is fit to be issued with a security licence. This is a matter for the Commissioner (now the Tribunal) having regard to all the relevant information. 33 While I accept that the Applicant has taken steps in order to address his illness, in my opinion there is insufficient evidence before the Tribunal to find that these steps have in fact addressed his illness. Accordingly, I find the Applicant not to be a fit and proper person to be issued with a licence and to this extent the decision of the Commissioner is the correct and preferred decision. In the event the Applicant is able to obtain the necessary evidence from his psychiatrist he is at liberty to make a fresh application for a security licence. If such an application is made, in addition to the matters the Commissioner is required to consider under the SI Act, I recommend the Commissioner have regard to the Tribunal's findings in this decision. Public interest 34 My findings in respect to whether the Applicant is fit and proper to be issued with a class 1A security licence is enough to dispose of this application as a finding that the Applicant is not a fit and proper person gives rise to a mandatory refusal: see s15(1)(a) SI Act. However, in the event I am incorrect I have also considered the public interest ground of refusal. 35 The concept of "public interest" was described as follows by the Appeal Panel in Toleafoa v Commissioner of Police [1999] NSWADTAP 9 at 25: "… public interest is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the grounds 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." 36 This decision has been followed in numerous decisions of the Tribunal. The Tribunal has also followed the following statement in Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681: "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." 37 The concept of "public interest" also derives its meaning from the activity that an applicant will be licensed to perform. Accordingly, the objects and purposes of the SI Act are equally relevant. While the Act does not specifically prescribe its objects and purposes, the provisions that are contained therein clearly indicate that these are the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity. 38 As mentioned above where the Commissioner makes a finding that it would be contrary to the public interest to issue an applicant a license, the Commissioner has a discretion as to whether to refuse such an application: see s15(3) SI Act. 39 In my opinion, the Applicant's mental health is equally relevant to the consideration as to whether the grant of a class 1A security licence would be contrary to the public interest. In my opinion, for the reasons stated above, on the basis of the material before the Tribunal the Applicant's mental health is likely to pose a risk to public safety if he were to be issued with a class 1A security licence. On the other hand I note that, at the time of his application, the Applicant had all the necessary qualifications to be issued with a class 1A licence and that he has the possibility of work in the event a licence is issued. However, in my opinion, on balance, I find that it would be difficult to instil public trust and confidence that the Applicant would react in a manner expected of a licensed security guard who may be required to work under pressure and unexpected and hostile circumstances. As explained above, if the Applicant were able to provide evidence to the satisfaction of the Commissioner that his illness no longer poses a risk to public safety, he may wish to make a fresh application. 40 Accordingly, in regard to the Commissioner's decision to refuse the Applicant's application on public interest grounds, I find that the Commissioner's decision is the correct and preferred decision. Orders 41 For the reasons set out above, the Tribunal orders that the decision of the Commissioner to refuse the Applicant's application for a class 1A security licence is affirmed.