Henry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 45

CITATION: Henry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 45 DIVISION: General Division APPLICANT PARTIES: Stephen Michael William Henry RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023219 HEARING DATES: 16/12/02 SUBMISSIONS CLOSED: 12/16/2002 DATE OF DECISION: 03/07/2003

BEFORE: Higgins S - 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 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security (Protection) Industry Act 1985 Security Industry Act 1997 Security Industry Regulation 1998 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED: Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 APPLICANT REPRESENTATION: In person RESPONDENT C McGoldrick, agent ORDERS: The decision of the Commissioner of Police to revoke Mr Henry's Class 1A security industry licence is set aside.

BACKGROUND 1 On 10 October 2002, Mr Henry filed an application with the Tribunal seeking a review of a decision of a delegate of the Commissioner ("the Commissioner") to revoke his Class 1A security industry licence. His appeal is made pursuant to s.29(1)(c) of the Security Industry Act, 1997 and s.38 of the Administrative Decisions Tribunal Act, 1997. 2 Mr Henry is 32 years of age and was issued with a Class 1A security licence on 28 April 1999. He had previously been issued with a security licence under the Security (Protection) Industry Act 1985, in 1997. 3 In making his decision to revoke Mr Henry's licence, the Director-General primarily had regard to Mr Henry's conviction for an offence of assault occasioning actual bodily harm on 29 May 2002 at the Penrith Local Court. The conviction related to a charge that was laid on 20 April 2000. That charge related to an allegation that Mr Henry had assaulted and caused actual bodily harm to the 3½ year old son of his de-facto. 4 On 4 June 2002, the Commissioner issued a notification to Mr Henry revoking his licence. That notice of revocation listed the following as being reasons why the Commissioner had revoked his licence: a) Mr Henry had been convicted of a prescribed offence involving assault; b) Mr Henry did not hold the prescribed qualifications and experience in respect of the class of licence he had been issued with; c) Mr Henry had failed to provide information and particulars as required by the Commissioner in respect of his application (Certificate 11 in the security guarding and senior first aid certificate); and d) Mr Henry had contravened the Security Industry Act, 1997 or a regulation made under the Act, and that Mr Henry has contravened a condition of his licence. 5 Following his conviction for assault occasioning actual bodily harm, Mr Henry appealed to the Penrith District Court. On 9 August 2002, the Penrith District Court confirmed Mr Henry's conviction and his sentence of a bond of four years good behaviour. In all other respects Mr Henry's sentence was set aside. This included the imposition of a fine of $500. 6 On 12 August 2002, Mr Henry furnished the Commissioner with copies of certificates he had obtained in respect of Certificate 11 in security and a first aid certificate. 7 On 19 August 2002, Mr Henry's solicitor wrote to the Manager of the Security Industry Registry informing him of the outcome of Mr Henry's severity appeal and requesting a reconsideration of the decision to revoke his licence. ISSUES 8 As Mr Henry was able to satisfy the Commissioner that he had the requisite qualifications, the only matter in issue is whether Mr Henry's conviction was such that he was no longer a fit and proper person to be the holder of a security industry licence. RELEVANT LEGISLATION 9 The Security Industry Act, 1997 prescribes a scheme for licensing persons to carry out security activities. There are three classes of licence, a master licence, a Class 1 licence and a Class 2 licence (see s.9 Security Industry Act). A Class 1 licence is divided into three subclasses; Class 1A, Class 1B and Class 1C. 10 S.11(1) of the Security Industry Act sets out the activities which each class of such a licence is authorised to undertake. A Class 1A licence holder is authorised 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." A Class 1B licence authorises the licensee to act as a bodyguard and a Class 1C licence authorises the licensee to act as a crowd controller or bouncer. 11 S.26 of the Security Industry Act gives the Commissioner power to revoke a security licence in certain circumstances. So far as is relevant in this case, that section provides: "s.26(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:…" 12 S.15 of the Security Industry Act sets out circumstances in which the Commissioner must refuse to grant an application for a licence. These circumstances include those where the Commissioner is satisfied that the Applicant: "is not a fit and proper person to hold the class of licence sought by the Applicant, …" 13 S.16 of the Security Industry Act sets out criminal and other related history for which the Commissioner must refuse to grant an application for a licence. The first circumstance listed in that section is where the Commissioner is satisfied that the Applicant: "…has within the period of ten 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, …" ( see s.16(1)(a) ) . 14 The next restriction is where the Commissioner is satisfied that the Applicant: "…has within the period of five years before the application for the licence has been 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, …" ( s.16(1)(a) ) . 15 Clause 11 of the Security Industry Regulations 1998 sets out the offences prescribed in respect of s.16 of the Security Industry Act. These offences include an offence involving an assault. The relevant provision provides as follows: (11)(c) offences involving assault an offence under the law of any Australian or overseas jurisdiction involving assault of any description, being: (i) an offence in respect of which the penalty imposed was imprisonment or a fine of $200 or more, or both, or (ii)in such cases where the applicant concerned has been found guilty but has not been convicted – an offence that, in the opinion of the Commissioner, is a serious assault offence. THE EVIDENCE 16 Mr McGoldrick, who appeared on behalf of the Commissioner, relied on the material previously filed with the Tribunal and served on Mr Henry. This material included the police brief on evidence relating to the assault charge, the transcript of the decision of the Magistrate in respect of that charge and the Commissioner's appeal file in respect of Mr Henry's application before the Tribunal. Mr McGoldrick also called Detective Sergeant Hannigan, who was the police officer responsible for the investigation of the alleged assault charge. 17 Mr Henry relied on references that he had previously furnished to the Commissioner together with a further reference from a Mr Hugh Nean. Mr Henry did not otherwise give any oral evidence. FINDINGS OF FACT 18 According to the material before the Tribunal, Mr Henry commenced a de-facto relationship with a Ms Morgan in January 2000 after having met her in the latter part of 1999. Ms Morgan had a 3½ year old son. Initially Mr Henry had a very good relationship with the child. In early April 2000, Ms Morgan decided to move her son to another childcare centre. At about this time Mr Henry insisted that he would take two weeks leave to look after Ms Morgan's son. He commenced his leave on about 5 April 2000 and had agreed to drop Ms Morgan's son off to the new childcare centre as she was due to commence a work training course in Sydney for a period of two weeks. On 5 April 2000, Mr Henry did not take Ms Morgan's son to day care because he was throwing up after they had been wrestling. When Ms Morgan returned home she noticed that there were several bruises on the left side of her son's face, his chin, his upper ear and on the left side of his face just above the jaw. She also noticed that there were bald patches on his head where his scalp was shining through. Arrangements were made to take her son to see a doctor on the following day. The doctor recommended blood tests which were done subsequent thereto. On 10 April 2002 Mr Henry again had custody and control of Ms Morgan's son, while she attended her course. During the day he telephoned Ms Morgan and told her that her son had tripped on a towel on the dining room, had fallen and bumped his head and split his lip. When Ms Morgan returned home she noticed the lump on her son's head and that his top lip was swollen. The following day, on 11 April 2002, Ms Morgan again attended her course and Mr Henry had custody and control over her son. When she returned home she noticed that her son's face was black with bruises and swollen. His lips were swollen up and that he was an absolute mess. On questioning Mr Henry on what happened, he stated: "We were playing football in the back yard and the football hit him in the face." She asked him how many times he did this and he responded that he did it twice. Ms Morgan's son was subsequently taken to hospital and was seen by a specialist paediatrician, who stated that the injuries were not consistent with Mr Henry's explanation. 19 Mr Henry has at all times denied the charge and vigorously defended them at the hearing before the Local Court. 20 In his reasons for decisions the Magistrate stated: "In relation to the matter or the allegation on 10 April the difficulty that I perceive the Court has is that whilst great play has been made by the prosecution today it would certainly seem the Defendant has been found wanting in relation to his evidence and whether it be of recent invention or otherwise having had the benefit of the evidence of the stepmother is that the stepmother, in her evidence, has indicated at the time she arrived on the scene that the child offered as an explanation a tripping on a towel. Whilst the child certainly suffered injury in relation to that I am not able to be satisfied to the requisite degree in relation to that matter. In relation to the matter of 11 April however, to my mind that's an entirely different story. It seems that there has been no possibility of outside persons being involved with the child during that day and up to the point of time that the mother returned home and made the observations which she did of the child. It would seem to me that the explanations advanced by the Defendant are certainly found wanting, given the acceptance and weight which I have attached to the evidence of Professor Bolton. Having regard to that evidence I am satisfied the child did occasion bodily harm. I am not – being mindful of the various tests which are to be applied in respect of matters of a circumstantial nature it would seem to be on the totality of the evidence that there is no really reasonable hypothesis which causes me to give the Defendant the benefit of the doubt, that being that no – those hypotheses are consistent with innocence on his part. I find that the allegation of the offence on 11 April has been made out and I find the matter proved." 21 It should be noted that Mr Henry was charged in relation to three separate incidents and of these two charges were dismissed. Accordingly, the only charge on which he was found guilty was that relating to the events, which occurred on 11 April 2000. SUBMISSIONS 22 Mr McGoldrick, on behalf of the Commissioner, submitted that the Tribunal should regard the circumstances surrounding Mr Henry's conviction as being a serious assault. This was reflected in the fact that the Court saw fit to impose a four year good behaviour bond. He went on to submit that the community must be confident that holders of a security industry licence are able to exhibit restraint and not easily resort to violence, particularly against persons who are vulnerable. The nature of the activities that such a person would be involved in are stressful and the community's expectation is that the licence holder should be trusted when he comes into contact with any people, including children. 23 Mr Henry continued to deny that he had committed the offence for which he was convicted. However, he submitted that the circumstances of this conviction should be viewed together with other relevant factors such as: a) he has two children himself – one aged 3 and the other aged 9 months. The 9 month old is living with him and he has joint custody of the 3 year old. There have been no allegations made in respect of his custody and care of these children; b) he has been a security guard for 6 years and has been continually trusted with the property for which he provides security. There have never been any complaints in respect of his activities in this regard and he has actively sought to protect property from theft or fraud; c) in 2000 he was given an award in the Australian Bravery Decorations Awards in public recognition of his courageous actions within the community, and his referees each of whom state that he gets on well with other people, is helpful and undertakes his security industry position with responsibility. REASONS AND DECISION 24 As mentioned above, the Commissioner has only relied on one factor as a basis of his decision to revoke Mr Henry's security licence. That factor being Mr Henry's conviction for assault occasioning actual bodily harm which gave rise to him not being satisfied that Mr Henry was a "fit and proper person to hold" the Class 1A licence with which he had been issued (see s.26(1)(a) and 15(1)(a) Security Industry Act 1997) 25 The Tribunal has considered the meaning of a "fit and proper person" on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he stated: "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 too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration". 26 It is well established that the discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). 27 In Hughes and Vale Pty Ltd at 156-157 Dixon CJ, McTiernan and Webb JJ stated as follows in respect of the exercise of this administrative discretion: "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 widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability ... It is evident that the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion." 28 In this case, the circumstances surrounding Mr Henry's conviction did not relate to his activities as a security industry licence holder. Nor did they relate to a working environment. They were specifically relevant to a domestic situation. 29 However, there is no question that the assault was a serious one as it involved a child over whom Mr Henry had custody and control and on whom it was found he had inflicted serious injuries. 30 This, however, must be examined in light of the activities that Mr Henry is authorised to undertake as a holder of a Class 1A licence. As mentioned, above such a licence only authorises Mr Henry to patrol, guard, watch or protect property. He is not licenced to act as a bodyguard or acting as a crowd controller or bouncer. Such activities are authorised under a Class 1B and Class 1C licence. It is these activities, which would directly bring Mr Henry into contact with people over which he would have a measure of control. 31 There is no evidence before the Tribunal to indicate that Mr Henry's activities as the holder of a security industry licence will have custody and control over children. Furthermore, there is no evidence that Mr Henry as the holder of such a licence has ever acted inappropriately in respect of children or people generally. 32 It is also noted that Mr Henry's conviction, which no longer attracts a fine, would not be an offence for which an application for a licence would be mandatorily refused. This may be a legislative oversight, but is not an issue for the Tribunal to consider in this application. 33 The Tribunal is concerned about Mr Henry's continual denial of the matters for which he has been convicted. On the other hand the Tribunal notes the content of Mr Hugh Nean's reference on behalf of Mr Henry. In that reference he states that he has known Mr Henry and his family for 25 years and that he believed that: "…the current circumstances are of not of his nature and character or family background, …". He goes on to state that: "Stephen has cared for my children and grand children on separate occasions and has looked after them with care and concern." 34 Accordingly, having regard to the circumstances surrounding his conviction, the fact of Mr Henry's otherwise good character, the fact that he has no record of any other inappropriate behaviour as a security licence holder or otherwise and nature of the activities for which Mr Henry is authorised as a security licence holder, in the opinion of the Tribunal the Commissioner's decision is not the correct and preferred decision. 35 For the reasons stated above the Tribunal orders that the decision of the Commissioner be set aside.