Tran (No 2) -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 36

CITATION: Tran (No 2) -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 36 DIVISION: General Division APPLICANT Pele Huan Giang Tran PARTIES: RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 993190 HEARING DATES: 17/11/99 SUBMISSIONS CLOSED: 11/17/1999 DATE OF DECISION: 04/05/2000

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 CASES CITED: Tran -v- Commissioner of Police, New South Wales Police Srvice [2000] NSWADT 18 APPLICANT REPRESENTATION: K Baker, solicitor RESPONDENT A Spajic, solicitor ORDERS: 1. Decision of Commissioner not to grant the applicant a master security licence is affirmed.

Introduction 1 On 13 August 1999 Mr Tran filed an application with the Tribunal requesting a review of a decision of the Commissioner of Police. The decision was to refuse Mr Tran's application for a master licence under the Security Industry Act 1997 (the Act). Mr Tran applied for a master licence on 23 March 1999. 2 There were four grounds for that refusal. The first was that the Commissioner was satisfied that Mr Tran had been found guilty of a prescribed offence involving fraud dishonesty or stealing. Mr Tran has been convicted of the following offences: * Break, Enter and Steal in the Campbelltown Children's' Court on 17/11/95 -without conviction s 33(1)(B) self $500; good behaviour 6 months; pay compensation $820; recognisance entered; * Break, Enter and Steal in the Campbelltown Children's Court on 12/1/1996 - NBC Conviction s 80AA; and * Break Enter and Steal in the Campbelltown Children's Court on 10/5/1996 - probation 18 months; good behaviour supervision of Juvenile Justice Branch and ordered to pay compensation of $706. 3 The second ground for refusal was that Mr Tran is not a fit and proper person to hold a master licence. The third ground was that the granting of a master licence would be contrary to the public interest. Finally, the respondent submitted that Mr Tran has identified a close associate on his application for a master licence who is a person who has been convicted of a prescribed offence relating to the use of a firearm. 4 It should be noted that Mr Tran's personal security licence was revoked in December 1999. On 3 March 2000, the Tribunal decided to set aside that decision and order that a personal licence be re-issued (Tran v Commissioner of Police, New South Wales Police Service [2000] NSWADT 18.) However, the provisions relating to the revocation of a licence are different from those relating to an application. The relevant provisions for the purposes of this case are set out below. Legislation 5 The first ground of refusal relates to the commission of prescribed offences. Section 16(1) of the Act states that: 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, or (b) has, within the period of 5 years before the application for the licence was 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. 6 Clause 11(d) of the Security Industry Regulation 1998 (the Regulation) prescribes certain offences involving fraud, dishonesty or stealing. An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more. 7 The second and third grounds for refusal relate to whether Mr Tran is a fit and proper person hold a licence and whether it is in the public interest for him to hold a licence. Section 15(1)(a) and section 15(3) of the Act state that: (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, or (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. 8 The final ground for refusal was based on Mr Tran's association with a person allegedly convicted of a firearms offence. Section 15(5) of the Act states that: A reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. 9 The respondent did not elaborate on this submission or draw the Tribunal's attention to the name of the associate or the circumstances which would justify a refusal of the licence on this ground. Consequently I am not satisfied that this ground is a sufficient reason for refusing the licence. Commission of prescribed offences 10 The first ground was that Mr Tran had committed certain offences which made it mandatory for the Commissioner to refuse his application. In relation to the first offence, the Children's Court proceeded without conviction under s 33(1) of the Children (Criminal Proceedings) 1987. That section states that: (1) If the Children's Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things: (a) it may make an order dismissing the charge, or it may make an order dismissing the charge and may administer a caution to the person, (b) it may make an order releasing the person on condition that the person enters into a recognizance, with or without sureties, to comply with such conditions as it may determine for such period of time, not exceeding 2 years, as it thinks fit, 11 It appears that Mr Tran was dealt with under s 33(1)(b) and without being convicted was ordered to enter into a recognisance to be of good behaviour for a period of six months. 12 Mr Tran was convicted of the first offences mentioned in paragraph 2 under s 112 of the Crimes Act 1900. 112. (1) Whosoever: breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, and commits any serious indictable offence therein, or being in any dwelling-house, or any such building as aforesaid, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, commits any serious indictable offence therein and breaks out of the same, shall be liable to imprisonment for fourteen years. 13 I am satisfied that the first offence is a prescribed offence under s 16(1)(b) of the Act and Cl 11 of the Regulation. First, the offence is one involving fraud, dishonesty or stealing, specifically the offence is one of break enter and steal. It does not matter whether Mr Tran admits that he actually stole something as long as he has been found guilty of an offence which involves stealing. Mr Tran was found guilty, (but with no conviction being recorded) by the Children's Court of New South Wales. The maximum penalty under s 112 of the Crimes Act 1900 is 14 years penal servitude, considerably more than the three months required by the Regulation. Mr Baker on behalf of the applicant submitted that since a prison sentence was not an option under the Children (Criminal Proceedings) 1987, Cl 11(d) can only relate to adult offences. I do not accept this submission. The relevant question is whether s 112 of the Crimes Act 1900 provides for a penalty which satisfied Cl 11(d). It does so in this case. Thirdly, the offence was committed within a period of 5 years of the application, namely on 17 November 1995. 14 On the basis of the first offence alone, I am satisfied that the Commissioner made the correct and preferable decision in refusing Mr Tran's application for Master Licence. 15 The second offence is not as clear in terms of the outcome or the penalty. It appears that Mr Tran was dealt with pursuant to s 80AA of the Justices Act 1902 because he was not present at the court. He gave evidence that he was in hospital at the time. Section 80AA states that: (1) A Justice or Justices shall not, by any conviction, order that the defendant be imprisoned unless the defendant is present at the time the order for imprisonment is made. (2) Where a Justice or Justices convicts or convict a defendant who is not present, the Justice or Justices may, at the time of convicting the defendant or at a later time, issue or authorise an authorised justice to issue a warrant for the apprehension of the defendant for the purpose of the defendant's being brought before a Justice or Justices for sentencing. (3) The powers conferred by subsection (2) may be exercised only by a Justice or Justices constituting a Local Court. This subsection does not apply in the case of the issue of a warrant of apprehension by an authorised justice where the issue of the warrant by an authorised justice is authorised under subsection (2). 16 A warrant was issued for Mr Tran's arrest following his non-attendance at court and he was brought before the court for sentencing. It appears that he was found guilty of the second offence and put on probation for 18 months. For the same reasons as those outlined above, I am satisfied that the second offence also comes within s 16(1)(b) of the Act and Clause 11(d) of the Regulation. The effect of that is that the Commissioner cannot grant him a licence until at least 10 May 2001. Fit and proper person 17 The respondent's alternative submission was that Mr Tran is not a fit and proper person to hold a master licence and that it is contrary to the public interest for him to do so. It is not necessary for me to consider these grounds given my findings in relation to the prescribed offences. It should be noted, however that the finding of the Tribunal in Tran v Commissioner of Police [2000] NSW ADT 18) that Mr Tran was a fit and proper person to hold a personal security licence, does not necessarily mean that he is a fit and proper person to hold a master licence. The master licence allows a person to employ people to carry on security activities. The obligations and responsibilities on such a person are clearly more onerous than those on a person who is merely employed in the industry.