Soreh v Commissioner of Police, NSW Police [2007] NSWADT 139

Set aside by Appeal :

CITATION: Soreh v Commissioner of Police, NSW Police [2007] NSWADT 139

DIVISION: General Division

APPLICANT PARTIES: Amit Soreh RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 073066

HEARING DATES: 8 May 2007

SUBMISSIONS CLOSED: 8 May 2007

EXTEMPORE DECISION DATE: 8 May 2007

DATE OF DECISION: 22 June 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Commercial Agent and Private Inquiry Agent - grant of licence - Commercial Agents and Private Inquiry Agents Act - Commercial Agent and Private Inquiry Agent - grant of licence

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Commercial Agents and Private Inquiry Agents Act 2004 Crimes (Sentencing Procedure) Act 1999 Criminal Records Act 1991

CASES CITED: Bonatti v Commissioner of Police, New South Wales Police Service [GD] [2003] NSWADTAP 21 Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358

APPLICANT In person REPRESENTATION: RESPONDENT C Weiss, agent

ORDERS: The matter is remitted for reconsideration by the Commissioner.

REASONS FOR DECISION 1 Mr Soreh applied for an operator licence to work as a Private Inquiry Agent, under the provisions of Division 2 of Part 2 of the Commercial Agents and Private Inquiry Agents Act 2004 ("the Act"). 2 A delegate of the Commissioner refused the application on the grounds that Mr Soreh is a disqualified individual under the Act and that pursuant to subsection 13(1) he is mandated to refuse an operator licence to disqualified individuals. That decision was affirmed on internal review and Mr Soreh applied to the Tribunal for a review of the Commissioner's determination. He contends that he is not a disqualified individual for the purposes of the Act. 3 I decided this issue at the hearing on 8 May 2007. At the conclusion of the hearing I determined that Mr Soreh is not a disqualified individual and remitted the matter for reconsideration by the Commissioner and I gave brief reasons for my decision. The Commissioner has requested written reasons and these reasons are provided in response to that request. Applicable Legislation 4 Section 13 of the Act provides: 13 Grounds for refusing operator licence (1) An application for an operator licence must be refused if the applicant is a disqualified individual. (2) An application for an operator licence may be refused: (a) if the applicant has been convicted or found guilty of a minor offence, or (b) if the Commissioner is of the opinion that the grant of the licence would be contrary to the public interest, or (c) if the applicant does not satisfy such requirements as to qualifications, training or experience as the Commissioner may from time to time determine. 5 The term "disqualified individual" is defined in section 4 of the Act as follows: "disqualified individual" means: … (d) an individual who has been convicted or found guilty of a major offence, or ... 6 The term "major offence" is defined in section 4 of the Act to include: "major offence" means: (a) an offence involving violence, fraud, dishonesty or theft, being an offence punishable by imprisonment, or … 7 Section 5 of the Criminal Records Act 1991 provides: 5 Findings and orders treated as convictions for the purposes of this Act The following findings or orders of a court are treated as convictions for the purposes of this Act: (a) a finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction, (b) a finding that an offence has been proved, or that a person is guilty of an offence, and the discharging of, or the making of an order releasing, the offender conditionally on entering into a recognizance to be of good behaviour for a specified period or on other conditions determined by the court, … 8 Section 8 of the Criminal Records Act 1991 provides: 8 When is a conviction spent? (1) A conviction is spent on completion of the relevant crime-free period, except as provided by this section. (2) A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made. (3) An order of the Children's Court dismissing a charge and administering a caution is spent immediately after the caution is administered. (4) A finding that an offence has been proved, or that a person is guilty of an offence, and: (a) the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or (b) the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit, is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require. (5) A conviction in respect of an offence of a kind which has ceased, by operation of law, to be an offence is spent immediately the offence ceased to be an offence, if the offence is prescribed by the regulations to be an offence to which this subsection applies. (6) A conviction which is spent is not revived by a subsequent conviction. (7) A reference in subsection (4) (a) (as substituted by the Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 to a good behaviour bond includes a reference to a recognizance to be of good behaviour made before the commencement of the Crimes (Sentencing Procedure) Act 1999 . 9 Section 9 of the Criminal Records Act 1991 provides: 9 What is the crime-free period for convictions of courts (other than the Children's Court)? (1) The crime-free period in the case of a conviction of a court (other than the Children's Court) is any period of not less than 10 consecutive years after the date of the person's conviction during which: (a) the person has not been convicted of an offence punishable by imprisonment, and (b) the person has not been in prison because of a conviction for any offence and has not been unlawfully at large. (2) The crime-free period may commence before the date of commencement of section 7. 10 Section 12 of the Criminal Records Act 1991 provides: 12 What are the consequences of a conviction becoming spent? If a conviction of a person is spent: (a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and (b) a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent, and (c) in the application to the person of a provision of an Act or statutory instrument: (i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and (ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions. Background 11 On 22 January 2001, Mr Soreh was convicted of "Assault Occasioning Actual Bodily Harm". That offence carries a maximum penalty of 2 years imprisonment however the Court did not impose a custodial sentence. Instead, the Court made an order pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 directing that Mr Soreh enter into a good behaviour bond for a period of twelve months. 12 The terms of the good behaviour bond were: (a) to appear before the court if called on to do so at any time during the term of the bond; and (b) to be of good behaviour. Mr Soreh completed the terms of my good behaviour bond on 22 January 2002. He has not been convicted of any other criminal offences since that time. Submissions 13 Mr Soreh concedes that prima facie he satisfies the definition of a disqualified individual because he has been convicted of an offence of violence punishable by imprisonment. However, he contends that at the expiry of the good behaviour bond his conviction became 'spent' pursuant to section 8 of the Criminal Records Act. That being the case it cannot be considered to be a 'conviction' for the purposes of the Act. 14 Mr Soreh relies on the decision of the Tribunal's President in Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358. In that case, the applicant had been refused an operator licence under the Act because he had been convicted of common assault and sentenced to a good behaviour bond pursuant to section 10 of the Sentencing Procedure Act. The President found that Mr Mahabir's conviction became spent upon the satisfactory completion of the terms of his good behaviour bond, pursuant to the exception in subsection 8(4) of the Criminal Records Act, and that spent convictions could not be taken into account when determining if an applicant was a 'disqualified person' under the Act. 15 Mr Soreh submits that the exceptions under section 8 of the Criminal Records Act also apply to good behaviour bonds made pursuant to section 9 of the Sentencing Procedure Act and that the reasoning in Mahabir applies to his case. 16 He argues that subsection 8(4) of the Criminal Records Act refers to section 9 bonds in two places. Subsection 8(4)(a) refers to 'the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond'. He submits that 'the discharging of ... the offender conditionally' refers to a discharge under subsection 10(1)(b) of the Sentencing Procedure Act; whereas the 'making of an order releasing the offender conditionally' refers to the imposition of a good behaviour bond pursuant to section 9 of the Sentencing Procedure Act. The provision is intended to distinguish between section 10 good behaviour bonds and section 9 good behaviour bonds. 17 Mr Soreh submits that it is clear from the words of subsection 8(4)(b) that it is intended to refer to section 9 good behaviour bonds where a condition of supervised probation is attached and this is distinguished from the bonds referred to in subsection 8(4)(a) in which supervision is not ordered. He argues that probation is a condition attached to a bond: a form of supervised release requiring the offender to be subject to the supervision and control of the Probation Service. An offender may be placed on probation as a condition of a good behaviour bond. He submits that when one considers that the more serious offenders would be sentenced to supervised bonds, then it would be a strange and unjust outcome for the Tribunal to conclude that Parliament had intended an exception for convictions leading to supervised section 9 bonds, but not for the spending of convictions of 'lesser' offenders who are sentenced to unsupervised section 9 bonds. 18 Mr Soreh says that if this submission is accepted, the section 9 good behaviour bond to which he was sentenced in 2001 was spent upon satisfactory completion of the conditions of that bond. He further submits that, following the reasoning in Mahabir, the Commissioner erred when he took into consideration a spent conviction and erroneously concluded that Mr Soreh is a disqualified individual under the Act. 19 In contrast, the Commissioner argues that Mr Soreh is a disqualified individual under the Act because his conviction is not spent. It is common ground that if the Tribunal accepts that the conviction is not spent, no discretion exists to issue Mr Soreh with the licence he seeks. The Commissioner relies on written submissions prepared by Mr Pisani to specifically address the issue. 20 The Commissioner argues that the Tribunal should draw a distinction between the facts in Mahabir and those of the present case. Significantly, Mr Mahabir was at no time ever convicted by the Court but was dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act whereas Mr Soreh has been convicted of "Assault Occasioning Actual Bodily Harm". 21 The Commissioner submitted that section 8(4) of the Criminal Records Act does not apply to Mr Soreh and that his conviction will become spent upon the completion of the relevant crime-free period. Section 9(1) of the Criminal Records Act provides that the crime-free period is any period of not less than 10 consecutive years after the date of the person's conviction. He says that Mr Soreh's conviction will only become spent on about 21 January 2011. 22 The Commissioner referred to the matter of Bonatti v Commissioner of Police, New South Wales Police Service [GD] [2003] NSWADTAP 21 where the Tribunal's Appeal Panel considered a similar circumstance in respect of an application to expunge a conviction from a criminal record. The Appeal Panel stated at paragraph [20] –[21]: "20 There is no legislative provision giving a person a right to have his/her criminal record expunged. The Criminal Records Act 1991 makes provision for 'convictions', which is broadly defined to include findings of guilt, for certain offences to be spent after a specified period of time (ss 5, 7, 8 and 9). In the case of convictions for an offence of assault the period is ten years after the conviction was entered so long as no other offences were committed within that period (s 9). If there has been a finding of guilt and the offender is discharged by the Court on, entering into a good behaviour bond for a specified period or, participating in an intervention program 'the conviction' is spent on the satisfactory completion of the period of the bond or the satisfactory completion of the intervention program (s 8(4)). 21 In this case, Mr Bonatti's convictions in respect of the two assaulting police charges arising from the first event have not been spent. However, the findings of guilt in respect of the resisting arrest and using offensive language charges, also arising from the first event, have been spent as he satisfactorily completed the Community Aid Panel program he was required to attend." 23 The Commissioner submits that for the reasons canvassed, the Tribunal affirm the decision. Findings and reasons 24 It is not in dispute that Mr Soreh was convicted of a major offence or that the Court made an order pursuant to section 9 of the Crimes (Sentencing Procedure) Act. Nor is there any dispute that Mr Soreh's conviction is one 'capable of becoming spent'. 25 I do not agree with the submission presented on behalf of the Commissioner. In my view, the requirement of completion of the relevant crime-free period before a conviction becomes spent only applies when other provisions within section 8 of the Criminal Records Act do not apply. In my opinion Mr Soreh's circumstances fall within the provisions of section 8(4) of that Act. 26 I agree with Mr Soreh's argument that section 8(4)(a) of the Criminal Records Act applies to a good behaviour bond made pursuant to section 9 of the Sentencing Procedure Act and that the reasoning in Mahabir applies to this case. I do not see the views expressed by the Appeal Panel in Bonatti to be inconsistent with this approach. 27 As required by section 8 of the Criminal Records Act a finding was made that Mr Soreh was guilty of an offence and Mr Soreh entered into a good behaviour bond for a period of twelve months. This is a situation that is addressed by section 8(4)(a) of the Criminal Records Act. In such circumstances a conviction is spent on satisfactory completion of the specified period of the good behaviour bond. It is not disputed that Mr Soreh completed that specified period of the bond without incident. 28 It follows in my view that Mr Soreh has satisfied the provisions of section 8(4) of the Criminal Records Act and his conviction is therefore spent. I do not think that Mr Soreh is a disqualified person for the purposes of the Act. 29 In the circumstances it is appropriate to remit the matter pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 for reconsideration by the Commissioner with a recommendation that the Commissioner take into account my view that Mr Soreh is not a disqualified person. Order The matter is remitted for reconsideration by the Commissioner.