CITATION: Singh -v- Commisioner of Police, New South Wales Police Service [2002] NSWADT 117 DIVISION: General Division APPLICANT PARTIES: Harpartap Singh RESPONDENT Commisioner of Police, New South Wales Police Service FILE NUMBER: 013255 HEARING DATES: 03/12/2001 SUBMISSIONS CLOSED: 03/05/2001 DATE OF DECISION: 07/08/2002 BEFORE: Lees M - 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 : Crimes Act 1900 Security Industry Act 1997 Security Industry Regulation 1998 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: The Commissioner's decision to revoke Mr Singh's licence is affirmed. Background 1 This is an application by Mr Singh for review by the Administrative Decisions Tribunal ('the Tribunal') of a decision made on behalf of the New South Wales Commissioner of Police ('the Commissioner') to revoke his security industry licence under the Security Industry Act 1997 ('the Act'). 2 Mr Singh was served with a 'Notification of Revocation of Licence' dated 10.09.2001 on that day. The decision relied on sections 16 and 26 of the Act read with Clause 11 of the Security Industry Regulation 1998 ('the Regulation'). Mr Singh sought internal review by the Commissioner of this decision. 3 By letter dated 04.10.2001 Mr Singh was advised that the internal review decision affirmed the original decision to revoke the licence. 4 The Tribunal's jurisdiction to consider Mr Singh's application for external review is found under s. 29 of the Act together with s. 38 of the Administrative Decisions Tribunal Act 1998 (the Tribunal Act). 5 On 1 November 2001 the President of the Tribunal refused to make an order pursuant to s 60(2) of the Tribunal Act to stay the Commissioner's revocation decision. Applicable Legislation 6 Section 16 of the Act concerns restrictions on granting licences in circumstances involving certain criminal and other related history. Section 16(1)(a) and (b) of the Act provide 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, … (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, ……. 7 Section 26 of the Act as relevant reads: (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….. (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. 8 Clause 11(d) of the Regulation reads: 11. For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (a) - (c) … (d) 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. …… 9 Clause 18 of the Regulation provides: In accordance with section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. Evidence and Submissions 10 In addition to his completed application form seeking review by the Tribunal, Mr Singh provided the Tribunal with a copies of training certificates he had obtained: Certificate II in Security Guarding (2000) and a certificate of completion of a Senior First Aid Course (2000). 11 Mr Singh gave oral evidence at the Tribunal hearing assisted occasionally by an interpreter. He was not legally represented. 12 Mr Singh's application for review states that he sought review because he 'was not satisfied with the decision' and that he had promised that the offence was his 'first and last mistake' and because he needed the licence as he had no 'other means' of earning money for himself and to help his parents. 13 After the hearing Mr Singh wrote to the Tribunal on 17.01.2002 making further general submissions and including an attachment concerning a pharmaceutical prescription. 14 Prior to the hearing the Tribunal was provided with a number of documents on behalf of the Commissioner. These included copies of: · a NSW Police Service 'Criminal History – Bail Report' pertaining to Mr Singh · a NSW Police Service 'Facts Sheet' relating to an offence committed by Mr Singh · the Notification of Revocation of Licence of 10.09.2001 · Mr Singh's request for internal review of the revocation decision received by the Police Service on 17.09.2001 · the internal review decision and statement of reasons dated 04.10.2001 · a letter from the Police Service Security Industry Registry dated 17.10.2001 to Mr Singh regarding his request of 10.10.2001 for a duplicate copy of his security licence. 15 After the hearing had concluded brief written submissions were provided on behalf of the Commissioner dated 05.03.2002 to the Tribunal in reply to Mr Singh's letter/submissions of 17.01.2002. 16 The Police Facts Sheet states that on 13.07.2001 Mr Singh was observed by the Loss Prevention Officer at Kmart Blacktown taking two pairs of trousers into the store's fitting rooms. Another young man who had one pair of trousers with him accompanied Mr Singh. Prior to this, the Loss Prevention Officer (LPO) had observed the young man with Mr Singh unsuccessfully try and remove a security tag from a pair of trousers. The LPO observed the two young men in the fitting room and saw them each put on a pair of new trousers beneath their own pants. Mr Singh emerged from the fitting room carrying only one pair of trousers. He subsequently joined up with the other young man and together they proceeded to leave the store through an open register making no attempt to pay for the trousers they were wearing. On being approached and questioned by the LPO the young men both denied they had left the store without paying for anything. After returning to the store and being asked to produce any unpaid-for items they had the young men removed their own trousers and placed the store's trousers on the bench. The police were called and spoke with the young men. They admitted they had taken the pants and made no offer to pay for them. They were placed under arrest and taken to Blacktown Police Station. Mr Singh's companion made full admissions and due to such and his history qualified for an official caution. Mr Singh was charged and appeared in Blacktown Local Court on 10.08.2001 on a shoplifting charge, namely, s. 117 of the Crimes Act 1900. He was fined $250 and ordered to pay Court costs of $58.00. 17 In evidence and under examination, Mr Singh stated he had seen the Police Facts Sheet and that he agreed with the facts as stated. 18 In relation to the offence Mr Singh stated that he 'didn't go to [Kmart] to steal', that he 'didn't do it knowingly': 'there was someone with me and he did it and I just did the same thing..'. That other person was a younger friend aged sixteen. Mr Singh was aged eighteen at this time. 19 Mr Singh said he was 'not a professional', he 'just did it with my friend', and he wanted to 'admit my mistake so therefore I told everything to the Police'. 20 In relation to his security licence Mr Singh stated 'If I was clever enough I would not have mentioned I had a security licence.' 21 Mr Singh obtained his security industry licence Class 1ABC (for the first time) on 19 March 2001. 22 Prior to the offence Mr Singh had been working in the security industry. He had worked with two security companies, 'Cheeta' and 'All-Time'. This had included work in shopping centres/malls, at an ANZ bank and at an NRMA. 23 Mr Singh agreed his work at the shopping centres was to 'walk around, inside and out', 'to stop people stealing' and 'doing bad things'. 24 He gave evidence that at the time of the offence he had been undertaking a twelve month long part-time course in computer studies at Mount Druitt TAFE. He had completed the first semester but had not attended since the Court case, as he did not have the money to pay for it. Mr Singh described his computer studies as being 'a hardware course' that will give him 'skills when seeking employment at some point'. He still hopes to finish that course. 25 Mr Singh apologised for his actions, stating he would 'never do this again'; he asked to be excused and forgiven and that his licence not be revoked as he did not have any other job. 26 His submissions seemed to be to the effect that he wanted his licence returned so that he could work for a period of time to get himself organised in some other industry such as 'cab driving'. 27 Mr Singh submitted that the revocation of his licence would mean he and all his family would lose their only source of income if his licence remained revoked. 28 There was also evidence before the Tribunal that Mr Singh wrote to the Security Registry on 10.10.2001 requesting that he be issued with a 'replacement' security industry licence claiming that his had been lost on 9.10.2001 in Blacktown and that he had reported the loss to the Police. His letter referred to 'LOST LICENCE (SECURITY) / Offence No. E 14024716'. Mr Singh's evidence was that his licence had been in his purse which was lost in Blacktown on 9.10.2001. 29 The Notification of Revocation of Licence that was served on Mr Singh on 10.09.2001 stated that he was 'no longer authorised to engage in any security activity in respect of the class of licence revoked. Your licence must be forwarded by mail to: ….' Section 31 of the Act is then quoted in full in the letter as follows: If a licence is suspended or revoked, the person to whom it was granted must immediately surrender the licence in accordance with the regulations. It then states that 'Failure to do so constitutes an offence, a maximum penalty for which is 20 penalty units ($2200).' 30 In addition to these details provided in the notice, a covering letter included in bold capitals a heading 'IMPORTANT NOTE' under which, again in bold, Mr Singh was advised he was no longer authorised to perform security activities and a warning about the penalty he could face should he fail to return his licence immediately as directed. 31 According to the Police Service, Mr Singh did not return his licence as directed. After he made his application for a duplicate licence, checks were made which revealed that the licence had in fact been revoked. 32 When asked why he hadn't returned his licence as directed by the Police in their letter of revocation he replied he 'didn't give it back because I lost it'. 33 In addition to her oral submissions, Ms Paterson for the Commissioner, relied on the internal review 'statement of reasons' dated 4 October 2001. Essentially, Ms Paterson's submissions were that Mr Singh's licence had been properly revoked on the bases: (i) of Mr Singh's conviction for an offence that would found the basis for refusal of a licence application (ii) that Mr Singh can no longer be considered 'fit and proper' to hold a licence, and (iii) that it is no longer in the public interest that he continue to hold a security industry licence. 34 Ms Paterson submitted that it was necessary to look at the nature of Mr Singh's offence, and the fact that, although the offence was 'for a relatively minor matter' it 'goes to the heart of what the Security Industry Act was created to prevent': 'to protect people from criminals …. working in the industry'. One of Mr Singh's roles in his work in the industry had been in shopping centres to prevent people from shoplifting. He would have understood shoplifting was wrong, yet he did it even though he himself was a security guard. In relation to submitting that Mr Singh is no longer fit and proper, Ms Paterson stated Mr Singh 'knew he had responsibilities as a security guard', yet he had 'deliberately' acted in contravention of the law by concealing clothing under his own and leaving the shop premises without paying. In relation to the public interest not being served should Mr Singh remain licensed, Ms Paterson submitted that the security guard's role in the community is to guard and protect it from harm, including theft, and that had been the very type of work he had been involved in. The nature of Mr Singh's offence affects the community despite his stated sorrow and promise it will not happen again. By his actions Mr Singh 'can no longer be trusted' so it is not in the public interest that he continue to be licensed. Findings and Reasoning 35 The submission that the offence Mr Singh was guilty of falls within the clause 11(d) category of offence 'involving stealing, fraud, dishonesty or stealing' is accepted. 36 On the Police Facts Sheet section 117 of the Crimes Act 1900 (NSW) was identified as the provision under which Mr Singh had offended. Section 117 appears in the Crimes Act under 'PART 4 - OFFENCES RELATING TO PROPERTY …Division 1 - Stealing and like offences … Subdivision 1 General…Subdivision 5 Larceny'. Section 117 provides as follows: Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. 37 The Facts Sheet also states that the offence was one of 'Shoplifting value<$2000T2' relating to 'Law Part: 625'. No further evidence was provided or submissions made regarding the statutory details of the offence. The word 'shoplifting' does not itself appear in the Crimes Act . If it once did, it no longer does so. The charge against Mr Singh appears to have been dealt with summarily by the Blacktown Local Court. 38 A 'shoplifter' is defined as 'a person who steals from a shop' in the Shorter Oxford English Dictionary (on Historical Principles) (Clarendon Press, Oxford, Third Edition 1992); 'to steal' means 'to take dishonestly or secretly ….to take or appropriate dishonestly (anything belonging to another, whether material or immaterial)'. In the Butterworths Australian Legal Dictionary 1997, 'stealing' is defined as 'the common name for the offence known at common law as "larceny" or in some jurisdictions as "theft"'. 39 The fact Mr Singh was found criminally guilty of an act/offence involving shoplifting of goods valued at less than $2000 was not disputed before the Tribunal. Mr Singh's act/offence is found to have involved stealing and dishonesty. Accordingly the offence falls within cl 11 of the Regulation and can form a basis for revocation pursuant to sections 16(1) and 26(1)(a) of the Act. 40 Under section 26(1)(a) a decision maker may revoke a licence 'for any reason for which the licensee would be required to be refused a licence of that class'. In this case, were Mr Singh applying for a licence it would have to be refused because of his relevant conviction. 41 As the power to revoke is a discretionary one, all relevant information available is to be considered in the process of deciding how that discretion will be exercised. In the circumstances of this case the relevant considerations are considered to be: the nature of the offence; the applicant's circumstances at the time of the offence and at the time of the review application; the applicant's attitude to his offence; the nature of the security industry; the purposes of the Act; and the applicant's understanding of the responsibilities and obligations of a security industry licence holder. 42 Mr Singh's offence of shoplifting involved dishonesty. At the time he committed the offence Mr Singh was eighteen years of age. The evidence establishes that Mr Singh is a very young man who has acted carelessly and has thereby found himself in his present unpleasant circumstances of having a criminal conviction and losing his main ticket to an income at this time. 43 The observed ease in the steps involved in Mr Singh's offence are evidence that Mr Singh had no apparent hesitation or doubt about the criminal act he was embarking on. His own evidence sought to suggest he just 'followed' what his younger companion did. In this way he also appeared to seek to deflect responsibility for the offence from himself. 44 The fact the offence consisted of one isolated incident gave rise to the submission that it was a 'one-off' and would not be repeated. Although this may prove to be true, the evidence also established that Mr Singh did not act in compliance with s 31 of the Act as directed, ie. he did not return his revoked licence to the Registry, and then he sought to obtain a reissued licence in the knowledge it had in fact been revoked. Mr Singh's response that he had not returned it (after the notice of 10.09.2001) because he had lost it (on 09.10.2001) does not make sense. Also, Mr Singh's claim in evidence that 'If I was clever enough I would not have mentioned I had a security licence', while not being clear about when and where this disclosure occurred, it did make clear that Mr Singh considered it would have been 'clever' to have not told the truth. These two further insights into Mr Singh's approach and attitude to his holding a security industry licence suggest a propensity in Mr Singh to further dishonesty. 45 Mr Singh obtained a security industry licence on 19 March 2001. He offended criminally on 13 July 2001, just under a mere 4 months after becoming licensed. Had Mr Singh offended in the same manner before 19 March 2001 he would have been mandatorily refused an application for a licence by the automatic operation of s. 16 of the Act. The Act is stated to be an Act to provide for the licensing and regulation of persons in the security industry. The purpose of s. 16 is clearly to exclude from the industry persons with convictions for certain offences. Implicitly, such persons are unsuitable for security industry work. As stated, Mr Singh's offence was committed a very short time after he had become licensed. His explanation for his action was that he was simply 'following' his friend, suggesting he had been caught up in the moment rather than having acted with any premeditation at all. This is not an explanation that has any appeal in persuading a decision maker to exercise a discretion in an applicant's favour. The explanation suggests, rather, a certain recklessness on Mr Singh's part, both in relation to the property of others specifically and the law more generally. There was no evidence of any extenuating circumstances such as need or desperation on Mr Singh's part. Rather, the evidence establishes he acted spontaneously and without due thought or responsibility. Having just become licenced in the industry which includes amongst its activities 'the protection of persons or property' (s. 4), and his own industry experience in shopping centres, Mr Singh's offence, even though acknowledged to be relatively minor, is quite astounding. 46 In relation to Mr Singh's expressions of contrition, these are found to have been made more out of a desire to be able to get back to work than out of a real understanding that he had acted dishonestly and inappropriately. His sorrow seemed to be more about the fact he had lost his licence than for the offence he had committed. 47 It was clear in Mr Singh's evidence that he believed he bore the financial burden for his family of two elderly parents and one brother. Although there was insufficient evidence to establish this as fact, Mr Singh's belief that this was the case is accepted and recognised as an onerous one for a young man such as Mr Singh. Despite this unfortunate pressure on Mr Singh and the fact that his interest in being employed is not only his own, his need for employment can not outweigh his exhibited disregard for the law and present unsuitability for security industry work. 48 Considering the above findings the Tribunal considers that the correct and preferable decision in the circumstances is to exercise the s. 26(1)(a) discretion against Mr Singh. 49 Included in the submissions made on behalf of the Commissioner were that Mr Singh could no longer be considered fit and proper and that it was not in the public interest that he continue to hold a security industry licence and that his licence should be revoked on those bases also. The Tribunal does not consider it necessary in the circumstances to make further findings on the additional bases submitted. Decision 50 That part of the Commissioner's decision to revoke Mr Singh's licence based on s.26(1)(a) of the Act is agreed with. In accordance with s. 63 (3)(a) of the Tribunal Act the following order is made: The Commissioner's decision to revoke Mr Singh's licence is affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.