Price -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 127

CITATION: Price -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 127 DIVISION: General Division APPLICANT Benjamin Price PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 993195 HEARING DATES: 31 March 2000 SUBMISSIONS CLOSED: 03/31/2000 DATE OF DECISION: 09/06/2000

BEFORE: Skinner PM - Judicial Member APPLICATION: Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Security Industry Act 1997 CASES CITED: Botros [2000] NSWADT 6 REPRESENTATION: In person J Tunks ORDERS: The decision of the respondent to revoke the applicant's security licence is affirmed

1 This is an application by Mr Price for review by this Tribunal of a decision by the Commissioner of Police, NSW Police Service to revoke his licence under the Security Industry Act 1997 ('the Act'). 2 On 24 August 1998 the applicant was issued with a Class 1A, 1B and 1C licence under the Act, for a term of five years. 3 On 1 July 1999 the applicant was served with a Notification of Revocation of Licence, pursuant to s 26(1) of the Act. The notice contained reasons. The respondent relied on the conviction of the applicant for a charge of 'Goods in Custody', under s 527C of the Crimes Act 1900, and ss 16(1)(a) and 26(1)(a) of the Act. 4 On 13 July 199 the applicant sought an internal review by the Police Service of the decision to revoke his licence. 5 By a letter dated 4 August 1999 the applicant was advised by the respondent that the decision was affirmed. 6 The applicant applied to this Tribunal on 18 August 1999 for a review of the decision. 7 After various mentions and adjournments the application came before me for hearing on 31 March 2000. Relevant facts 8 That the offence for which the applicant was convicted was 'an offence prescribed by the regulations' within the meaning of s 16(1)(a) of the Act was not in dispute. It was an offence 'involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is … imprisonment for 3 months or more' – see Cl 11 of the Security Industry Regulation 1998. 9 The applicant was convicted of the offence on 12 March 1998, before he applied for a licence on 30 June 1998. In that application he answered 'No' to the pro-forma question 3.2: 'Have you been convicted of an offence within the period of 10 years before the making of this application?'. 10 The applicant had however been convicted in the Belmont Local Court on 12 March 1998 in his absence, after failing to appear on that day. He made submissions to the Police Service, and gave evidence before me, that he had been led to believe from statements made when he first went to court in December 1997 that if he did a diversionary program for first offenders that the charge would be disposed of without any conviction being recorded against his name, and that he was completely surprised when he discovered late in 1998 that he had been convicted, and that a warrant had been issued by the Local Court to bring him before it for sentencing. 11 The applicant did however attend at Newcastle Local Court on 18 January 1999 when the conviction was confirmed and he was sentenced. He didn't inform any person attached to the Security Industry Registry of the NSW Police Service of the conviction. It was only upon it would seem a routine computer search in January 1999 that the Registry picked up the conviction of the applicant. 12 The Registry asked the local area command to conduct an identity check of the applicant. A local police officer made inquiries to that end in April 1999, and the results were reported back to the Security Industry Registry which eventually made the decision under review – to revoke the applicant's licence under s 26(1)(a) of the Act. 13 The applicant gave sworn evidence before me. He also relied on the written submissions he had made to the Police Service as part of the internal review process. He was cross-examined by the solicitor for the respondent. 14 The offence in respect of which the applicant was convicted had occurred when the applicant obtained a tachometer at a 'swap' meeting on the morning of 13 November 1997. The tachometer was the same make and model as a batch of tachometers that had been stolen in a break-in earlier that day. The applicant stated that he had purchased the tachometer for $150 cash and did not obtain a receipt. He had his suspicions at the time, because the item was obviously brand new but being sold for approximately a third of its retail price, which the applicant well knew. Also he did not know the seller, and he was suspicious of the manner in which that person was showing the item around. 15 The applicant expressed remorse and contrition and tendered several testimonials as to his character Applicable law 16 S 26(1) and (2) of the Act is in the following terms: '26 Revocation of licence (1) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of that class, or (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.' 17 Section 16 of the Act is, relevantly, in the following terms: '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, …'