Beveridge -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 30

CITATION: Beveridge -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 30 DIVISION: General Division APPLICANT David Scott Beveridge PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 993201 HEARING DATES: 06/03/00 SUBMISSIONS CLOSED: 03/06/2000 DATE OF DECISION: 03/24/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Security Industry Act 1997 Knight -v- Commissioner of Police 1999 NSWADT 99 CASES CITED: The Queen -v- Carbone [1984] 36 SASR 306 Australian Broadcasting Tribunal -v- Bond 1990 94 ALR 11 Commissioner of Police -v- Toleafoa [1999] NSWADTAP 9 APPLICANT In person REPRESENTATION: RESPONDENT J Tunks, prosecutor ORDERS: 1. The decision of the Commissioner not to grant Mr Beveridge a Class 1A, 1B and 2B licence under the Security Industry Act 1997 is set aside. In its place a decision is made to grant Mr Beveridge those categories of licence.

Introduction 1 Mr Beveridge applied for a security licence on 29 June 1999. The application was for class 1A, 1B and 2B licences which would authorise him to patrol, guard, watch or protect property; act as a body guard; sell security equipment and carry out surveys and inspections of security equipment. The Commissioner refused his application on 12 July 1999. 2 On 5 March 1996, Mr Beveridge was found guilty (but with no conviction being recorded) of knowingly taking part in cultivating a prohibited plant contrary to section 23 of the Drug Misuse and Trafficking Act 1985. The magistrate found Mr Beveridge guilty but applied s 556A of the Crimes Act 1900 and did not record a conviction. 3 The basis for the Commissioner's decision refusing the licence was that possession of a prohibited drug is a prescribed offence which requires the Commissioner to refuse the application. (See s 16(1)(b) of the Security Industry Act 1997 and Cl 11(b) of the Security Industry Regulation 1998.) 4 Mr Beveridge requested an internal review of this decision. On 4 August 1999, the Commissioner affirmed his original decision. 5 On 27 August 1999 Mr Beveridge applied to the Tribunal for a review of a decision of the Commissioner of Police refusing his application for a security industry licence. The Commissioner provided an Amended Statement of Reasons following the Tribunal's decision in Knight v Commissioner of Police 1999 NSWADT 99 (28 October 1999). In that case the Tribunal decided at [23] that: The mandatory provisions under the Security Act and the Security Regulation only apply to convictions for an offence in respect of a `prohibited drug' not to convictions for an offence in respect of a `prohibited plant' within the meaning of the Drug Misuse and Trafficking Act. 6 As the Local Court had found Mr Beveridge guilty of an offence relating to a prohibited plant the provisions making it mandatory for the Commissioner to refuse a licence do not apply. The Commissioner's Amended Statement of Reasons relied instead on a finding that Mr Beveridge was not a fit and proper person to hold a security licence (s 15(1)(a) of the Act) and/or that the granting of the licence would be contrary to the public interest (s 15 (3) of the Act). The Legislation 7 The relevant provisions of the Security Industry Act 1997 are as follows: 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, (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. Issue The issue to be decided in this case is whether Mr Beveridge is a fit and proper person to hold a security industry licence and/or whether it is in the public interest for him to hold a licence. Evidence and Findings 8 The Commissioner's delegate set out her findings of fact in the Amended Statement of Reasons in the following terms: On 30 November 1995 a vehicle of interest was seen to drive off the Picton Road, 600 meters west of the Cordeaux Mine gate. Police in an unmarked highway patrol vehicle pulled in behind this vehicle a short time later but missed the two male occupants who had decamped into the bushland. An external check of the vehicle revealed numerous cannabis plants in the rear compartment and on the rear floor. The vehicle was not locked and was searched a short time later revealing 33 small cannabis plants approximately 15 cm in height. About 15 minutes later the two persons of interest came out of the bushland and approached waiting police. They both fully admitted possession of the plants and their intention to plant them in the area they had just walked from. On 1 December 1995 the applicant and another person were charged with 'cultivate prohibited plant'. 9 Mr Beveridge told the Tribunal that a Mr Bishop was living in the garage of a house he was renting. A couple of weeks before the incident described above, Mr Bishop told Mr Beveridge that he was growing cannabis plants in the garage. Mr Beveridge said that he agreed to transport the plants in his car and help Mr Bishop to plant them in the bush. 10 Mr Beveridge's explanation for these events is as follows: I mistakenly helped a friend, who is no longer an acquaintance of mine by driving my vehicle as he did not possess a drivers licence or have a vehicle of his own to use, in the transportation of himself and a quantity of small cannabis cuttings for his own personal use. 11 In oral evidence Mr Beveridge said he had only known Mr Bishop for four weeks at the time of the incident. He said he did not know whether Mr Bishop was going to sell the plants or merely use them for his personal use. He told the Tribunal that Mr Bishop was a heavy marijuana smoker. 12 Mr Beveridge agreed that he had at least two weeks to consider Mr Bishop's request to help him transport and plant the plants. He said that he knew it was against the law but he felt sorry for Mr Bishop and was trying to help him out. 13 Mr Beveridge has had a security licence since 1988. He started work with Coca Cola as a security officer in 1997 but was unable to continue after his licence was not renewed. Mr Beveridge had a reference from Allan Clunie, Senior Security Team Leader, stating that Mr Beveridge is a member of the Coca Cola security team and that in the two years he has known him he has "displayed excellent character and a desire to perform all duties requested of him to the highest standards." 14 Mr Beveridge was unemployed until recently. On 2 March 2000 he found work at an aluminium fabrication plant. Mr Beveridge also tendered a reference from a friend and fellow worker in the security industry, Adrian Brown. Applicant's submission 15 The applicant listed several factors in support of his submission that he is a fit and proper person to hold a security industry licence: * he has never been convicted of a criminal offence; * although he was found guilty of knowingly taking part in cultivating a prohibited plant, the magistrate did not record a conviction; * he has made one mistake for which he is very sorry and believes he deserves another chance; and * the incident does not relate to his capacity to work as a security officer. Respondent's submissions 16 The respondent submitted that Mr Beveridge is not a fit and proper person to hold a security industry licence because: * an offence relating to cultivation of prohibited plant is a serious one; more serious than other prescribed offences which would require mandatory refusal such as possession of a small quantity of a prohibited drug for personal use; * the plants were growing in a garage on the property rented by Mr Beveridge and he was aware of their existence; and * he knowingly assisted in a planned illegal activity the number of plants involved (33) indicates that Mr Beveridge knew that the plants were at least partially intended for commercial resale rather than strictly for personal use and this makes him more culpable than if the plants were only for personal use; and * the behaviour is deceitful. 17 In relation to the quantity of plants being grown, the respondent relied on The Queen v Carbone ([1984] 36 SASR 306 at 308, 309) to submit that 33 plants was a commercial quantity. This case makes some observations about the quantities of cannabis plants that would be required for personal use. White J said that The difficulty for the sentencing judge arises when the number of plants rises above a dozen or so to about fifty or so. . . . without admissions, the inferences to be drawn from the quantity of leaf normally to be expected from say a dozen to fifty healthy female plants may be ambiguous. Reasoning and decision 18 The meaning of a "fit and proper" person was discussed in Australian Broadcasting Tribunal v Bond 1990 94 ALR 11. Toohey and Gaudron JJ at 65. stated that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 19 In the context of the security industry a person should be honest and trustworthy to be considered a "fit and proper" person to hold a licence. The offence committed by Mr Beveridge is relevant to the question of whether he has these qualities. However not every offence will make a person unsuitable to hold a licence. I must consider factors including the nature of the offence, the penalty imposed, how long ago it occurred and the person's conduct before and since the offence took place. 20 Mr Beveridge did not grow cannabis plants himself. All he did was agree to help someone he barely knew to transport and plant them. I consider this to be a much less serious offence than if he had been directly involved in the growing or distribution of the plants. 21 There was no evidence, nor do I feel able to draw any inference, that the 33 plants being grown in this case were intended for commercial sale. Mr Beveridge has been found guilty of knowingly taking part in the cultivation of a prohibited plant. No additional adverse inference can be drawn in relation to Mr Beveridge's character from the fact that 33 plants were involved. 22 The fact that other less serious offences would require mandatory disqualification is a relevant matter to take into account but does not mean that Mr Beveridge should automatically be ineligible to hold a security licence. The issue of whether Mr Beveridge is a fit and proper person to hold a licence, or whether it is contrary to the public interest for him to have a licence, is a discretionary matter and should be determined on the basis of all the evidence. 23 The magistrate found Mr Beveridge guilty but did not proceed to convict him. He was persuaded by the evidence of Mr Beveridge's good character and the fact that it was his first offence, not to record a conviction. 24 This offence took place four years ago. There is no evidence of any criminal record before or after that time. The character evidence suggests that Mr Beveridge has been of good character and a reliable employee since the incident occurred. Mr Beveridge has been in the security industry since 1988 and there was no evidence of any problems during that time. Indeed he produced to the Tribunal a supportive reference from his most recent employer, Coca Cola. 25 In my view Mr Beveridge was caught up in an illegal act which is out of character and for which he has shown genuine remorse. He impressed me as a man who has well and truly learnt his lesson and is highly unlikely to involve himself in any similar activities again. In my view, he is a fit and proper person to hold a security industry licence. 26 The respondent also relied, in the alternative, on the ground that granting a licence would be contrary to the public interest pursuant to s 15 (3) of the Act. The Appeal Panel pointed out in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25) that the "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 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. 27 The respondent relied exclusively on the applicant's character as the basis for refusing the application. I have found that the applicant is a fit and proper person to hold a licence. No additional material was put in relation to the Commissioner's argument that granting the licence would not be in the public interest. In these circumstances I set aside the Commissioner's decision under s 15(3) that the granting of a licence would be contrary to the public interest. 28 The decision of the Commissioner not to grant Mr Beveridge a Class 1A, 1B and 2B security licence is set aside. In its place a decision is made to grant Mr Beveridge those categories of licence.