Vella -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 44

CITATION: Vella -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 44 DIVISION: General Division APPLICANT Paul Vella PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 993244 HEARING DATES: 17/02/00 SUBMISSIONS CLOSED: 03/16/2000 DATE OF DECISION: 04/18/2000

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 (28 October 1999) CASES CITED: RPS -v- The Queen [2000] HCA 3 (3 February 2000) Ziems -v- The Prothonotary of the Ssupreme Court of New South Wales (1957) 97CLR 279 Commissioner of Police -v- Toleafoa [1999] NSWADTAP 9 APPLICANT REPRESENTATION: G Hovan, solicitor RESPONDENT G Doherty, solicitor ORDERS: 1. The decision of the Commissioner of Police to refuse Mr Vella a Class 1A, 1B and 1C security licence is set aside. A decision to grant those licences to Mr Vella is substituted for that decision.

REASONS FOR DECISION Introduction 1 On 27 October 1999 Mr Vella applied to the Tribunal for a review of a decision of the Commissioner of Police refusing his application for a security industry licence. Mr Vella was refused a Class 1A, 1B and 1C licence on 3 August 1999 because the Commissioner was satisfied that he had been convicted of a prescribed offence in respect of a prohibited drug. Those classes of licence would have entitled him to patrol, guard, watch or protect property, act as a bodyguard and as a crowd controller or bouncer. 2 On 9 May 1996, the Local Court at Newtown convicted Mr Vella of cultivating a prohibited plant contrary to section 23(1)(a) of the Drug Misuse and Trafficking Act 1985. He was released upon entering into a recognizance, with a surety of $2000.00 to be of good behaviour for 2 years. Mr Vella was also fined $2000.00. Mr Vella appealed against this conviction to the District Court which confirmed the conviction. 3 The basis for the Commissioner's decision refusing the licence was that cultivation of a prohibited plant is a prescribed offence which requires the Commissioner to refuse the application. (See s 16(1)(a) of the Security Industry Act 1997 and Cl 11(b) of the Security Industry Regulation 1998.) 4 Mr Vella requested an internal review of this decision. On 15 September 1999 the Commissioner affirmed his original decision for the same reasons. 5 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 Vella 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 Vella was not a fit and proper person to hold a security licence (s 15(1)(a) of the Act) 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 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 8 The issue to be decided in this case is whether Mr Vella is a fit and proper person to hold a security industry licence and/or whether it is in the public interest for him to do so. Evidence and Findings 9 The Commissioner's delegate set out her findings of fact in the Amended Statement of Reasons in the following terms: On 14 December 1995 members of Task Force #4 of the Drug Enforcement Agency executed a search warrant on a premises situate at 10 Clarendon Street Stanmore. As a result of that search a trap door was located in the corner of the front bedroom. Police entered the trap door, which led to the garage area beneath that bedroom. Inside the garage, behind some plastic sheeting, were 47 cannabis plants growing in a hydroponic arrangement. The Applicant, who was the occupant of the premises, was arrested and conveyed to Newtown Police Station where he was interviewed and subsequently charged with the cultivation. 10 Mr Vella is a 30 year old man who was 26 years of age at the time he was convicted of the offence. The relevant property was in his name and he had been living there for about 2 months prior to the police calling on him. 11 As I understand it, Mr Vella was advised not to give evidence at the hearing in the Local Court or the District Court and he did not do so. Although Mr Hovan representing the applicant advised that he would make available to the Tribunal the police record of interview, he did not do so. However, the applicant did give evidence at the hearing before the Tribunal as to the circumstances of the offence. 12 He said that he allowed the police to search his residence and as they were leaving he suggested that they check the room containing the trap door. The police then found the plants. Mr Vella said that he did not make any admissions in his record of interview and did not know that the plants were there. 13 Even though Mr Vella said that his father suggested to the police that they contact the previous occupants of the house, Mr Vella says that they did not do so. 14 Mr Vella said that he has never smoked marijuana but admitted to taking drugs "a couple of years ago". When cross examined on this point he said that he has used ecstasy "maybe five times" when he has been out partying. He said that drug taking is very common in the security industry but he does not intend to use ecstasy again. He admitted that he did have a security licence at the time he used ecstasy. 15 Mr Vella said that he has worked for four or five security firms in the last 3 years. The only employment he has ever had has been as a labourer or in night clubs. For the last 18 months he has been working at the Exchange Hotel in Sydney as a security manager where he supervises other staff. 16 Several references were tendered from employers including Tony Hili, Managing Director of Kylook Pty Ltd; Ian Corke, Operations Manager of BRN Security; Richard Saliba, General Manager PROS Pty Ltd; Gillies Couston, Roman AutoTek Pty Ltd; and from fellow employees including Troy Holland. All have vouched for his honesty, trustworthiness and reliability. They were all aware of the conviction. 17 In particular, Mr Vella's current employer, Mr Richard Saliba, stated that: I find Paul socially and professionally as an extremely trustworthy and honest person who is well respected not only by myself but also his peers. He has been supervising some of this companies high profile venues over the last two years and has never put a foot wrong with our clients who have always spoken highly of him. Applicant's submission 18 The thrust of the applicant's submissions was that Mr Vella has no criminal history apart from this conviction nearly four years ago. He has held a security licence for some four years and has never come to the attention of the Police Service in that time. Mr Vella was merely the "unlucky occupant" of a residence in which cannabis plants were being grown. 19 The applicant also submitted that the High Court decision in RPS V The Queen [2000] HCA 3 (3 February 2000) cast doubt on the legal principles applied by the court in convicting his client. Respondent's submissions 20 The respondent submitted that Mr Vella 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 large quantity of plants being grown in a system set up indoors, behind a trapdoor indicates the level of ongoing involvement and intention to commit this offence; · the behaviour can only be regarded as deceitful; and · the quantify of plants raises concerns about whether they were grown for reasons other than personal use. Reasoning and decision 21 The meaning of "fit and proper" person is set out in the respondent's Amended Statement of Reasons at paragraph 3. I accept this summary of the law and do not need to repeat it here. 22 The fact of a conviction in itself will not ordinarily be enough for the Tribunal to be satisfied that a person is not a fit and proper person to work in the security industry. In the High Court case of Ziems -v- The Prothonotary of The Supreme Court of New South Wales (1957) 97CLR 279 Taylor J made the following comment, at 302: "I find it impossible to ascent to the proposition that proof of the fact of the Appellant's conviction and sentence, without more, made it inevitable that an Order should be made directing that his name be removed from the Roll of Barristers. The vital question in my opinion, in such cases, is not whether a Practitioner has been convicted of an offence against the Criminal Law, but whether his conduct has been such as to show that he is unfit to remain a member of his profession." 23 In my view the same reasoning should apply to this case. However, the fact that Mr Vella did not give evidence in the Local Court and that no record of interview or other contemporaneous documentation was provided, makes it difficult to make any findings of fact which would assist in determining Mr Vella's fitness. He did give evidence on oath before the Tribunal that he did not know the plants were there and that he assisted the police in their inquiries. He also implied that the former occupants may have been responsible. The only finding I feel able to make from this evidence is Mr Vella co-operated with the police. The Local Court and District Court have already made a finding of guilt on the criminal standard and the evidence before me was certainly not sufficient to come to any contrary view, even if it was open for me to do so. 24 In relation to the quantity of plants being grown, the case of The Queen v Carbone ([1984] 36 SASR 306 at 308, 309) is relevant. 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. 25 There was no evidence, nor do I feel able to draw any inference, that the 47 plants being grown in this case were intended for commercial sale. Mr Vella 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 Vella's character from the fact that 47 plants were involved. 26 The fact that other less serious offences would require mandatory disqualification is not a matter that should inevitably lead me to find that Mr Vella is not a fit and proper person to hold a licence. The issue for determination is a discretionary matter. 27 The factors in Mr Vella's favour are as follows: · he has been working in the security industry for nearly four years without coming to the attention of police; · he has several positive references from former and current employers who know of his conviction; and · he co-operated with police when they came to his residence. 28 The factors which weigh against Mr Vella are as follows: · an offence relating to cultivation of prohibited plant is 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 fact that he was convicted of cultivating a prohibited plant in circumstances where the plants were being grown hydroponically, indoors and behind a trapdoor indicates a pre-meditated intention to conceal the plants from the police; and · he has admitted to using ecstasy but says he no longer uses it. 29 Given that this offence took place nearly four years ago and that Mr Vella has worked successfully in the security industry since that time, I regard him to be a fit and proper person to hold a security licence notwithstanding the conviction and his admission of minor drug use. This conclusion is supported by the very positive references from current and former employers. 30 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. 31 As the respondent relied entirely on Mr Vella's character to support their decision, there is no further material which is relevant to the issue of public interest and I find that the granting of a licence in this case would not be contrary to the public interest. 32 The decision of the Commissioner of Police to refuse Mr Vella a Class 1A, 1B and 1C security licence is set aside. A decision to grant those licences to Mr Vella is substituted for that decision.