Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Syed v Commissioner of Police, NSW Police Force [2012] NSWADT 206 Hearing dates: 20 August 2012 Decision date: 20 August 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed. Catchwords: Security licence - revocation - prescribed offence - offence involving fraud, dishonesty or stealing Legislation Cited: Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Security Industry Regulation 2007 Cases Cited: Doyle -v- Commissioner of Police, New South Police Service (GD) [2000] NSWADTAP 1 Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17 Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 RTA v Sharp Towing Pty Ltd and Ors (GD) [2008] NSWADTAP 49 Category: Principal judgment Parties: Ahmed Syed (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Michael Vassili Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 123130 REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of the decision by a delegate of the Commissioner to revoke the licence held by the Applicant under the Security Industry Act 1997 (""the Act). That determination was taken on the basis of charges brought against the Applicant for the offence of "move $10,000 or more out of Australia without a report" ("the Failure to Report offence") under section 53(1)(a)(ii) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ("the Anti-Money Laundering Act"). 2The Applicant was found guilty of the offence, without a conviction being recorded, and discharged under the provisions of section 19B of the Crimes Act 1914 (Cth). 3The Applicant's security licence was revoked on the basis that he was found guilty, but with no conviction being recorded, of a prescribed offence. The determination was affirmed on internal review. 4The Applicant applied to the Tribunal for external review of the Commissioner's determination. The matter came before me for hearing on 20 August 2012. At that time I determined that the Commissioner had made the correct and preferable decision and affirmed the revocation. I gave brief reasons for my decision. The Commissioner has requested written reasons for the decision and these reasons are provided in response to that request. The relevant law 5Section 26(1A) of the Act provides that the Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by the Act to be refused. 6Section 15(1)(a) of the Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant is not a fit and proper person to hold the class of licence sought. 7Section 16(1) of the Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under the New South Wales law. 8Clause 18(1)(d) of the Security Industry Regulation 2007 ("the Regulations") provides that for the purposes of 16(1)(a) and 16(1)(b) of the Act, the following offence is a prescribed offence: (d) 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. The Applicant's case 9The Applicant does not dispute the fact that he was charged with and found guilty of the offence of "Fail to report the movement of physical currency out of Australia not less than AUD10,000". However he contends that the offence is not a prescribed offence, because it is a strict liability offence and prima facie it does not involve elements of fraud, dishonesty or stealing. Mr Vassili, the Applicant's solicitor, submits that fraud, dishonesty and stealing are not considerations in the provision of a report in accordance with section 53 of the Anti-Money Laundering Act. The Failure to Report offence is a strict liability offence. 10Mr Vassili further contends that there were extenuating circumstances that must be considered. He submits that the extenuating factual circumstances provide evidence that the Applicant did not undertake to act in a fraudulent manner. 11The circumstances of the offence are that the Applicant and his family were fleeing the country and feared for their lives. The Applicant had been the victim of a severe assault where he was held against his will, beaten and threatened with a firearm and told that his family would be killed. His neck was cut with a knife and following on from the assault he was subjected to ongoing threats from his attacker. 12In those circumstances the Applicant feared of his life and made a decision to flee the country with his family. He failed to report the movement of the currency in those circumstances. The Respondent's case 13The Respondent submitted that the Applicant's contention that the offence is not a prescribed offence is incorrect, and inconsistent with the current construction of the words "involving fraud, dishonesty or stealing", adopted by the Tribunal's Appeal Panel in RTA v Sharp Towing Pty Ltd and Ors (GD) [2008] NSWADTAP 49 (Sharp Towing). Ms Tipene, the Respondent's solicitor, also noted that the concept of an offence "involving fraud or dishonesty" has been subject to considerable judicial consideration. She referred to decisions in Doyle v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 1 where the Appeal Panel considered the meaning of the words "involving fraud, dishonesty or stealing" as they appear in the Regulations and agreed, at paragraph [19], that it is not necessary to prove dishonesty or fraud. The Appeal Panel was satisfied that the words "involving fraud, dishonesty or stealing" should be given their natural meaning, rather than a narrow construction: at paragraph [23]. 14In Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 17, the Appeal Panel again considered the meaning of the words "involving fraud, dishonesty or stealing" as they appear in the Regulations and found that these words have a broad scope and that it is not necessary for honesty to be an element of the offence: at paragraph [11]. 15Ms Tipene noted that the authorities differ on the issue of whether regard should be had to the conduct of an offender in determining whether the offence is an offence involving dishonesty, fraud or stealing. She submits that the conduct involved in the commission of the offence is relevant to that determination, regardless of whether the terms of the offence are obviously connected with fraud or dishonesty. She submits that the Tribunal should adopt that approach in this matter and that it is consistent with the approach recently taken by the Appeal Panel in Sharp Towing. 16In Sharp Towing, President O'Connor considered various authorities and stated, at paragraph [50]: 50 I do not agree that the expression 'an offence involving [prescribed conduct]' should be limited in its operation to a scrutiny of the terms of the offence provision. I agree with Abadee J in [Pollard v Commonwealth Director of Public Prosecutions and Another (1992) 28 NSWLR 659] that an offence may be able to be shown to involve prescribed conduct, such as dishonesty, even though the offence itself is not an offence that directly refers in its terms to that kind of conduct or can be readily characterised as an offence about that kind of conduct. 17Ms Tipene referred to The Statement of Facts in relation to the offence and submitted that it shows that the Applicant made a false statement in his Outgoing Passenger Card and to Customs Officers. When questioned directly by a Customs Officer as to whether they were carrying more than $10,000, the Applicant and his wife replied `no'. When money was located on the Applicant's person, the Applicant indicated that the total amount was $10,000. A count of the money showed a total of $15,000 AUD and other currency. A total amount of $35,895 AUD, plus other currency, was found in the Applicant's possession. 18Ms Tipene submitted that making a false statement, whether knowingly or recklessly, is a form of dishonesty. The Respondent therefore submits that the Failure to Report offence is an offence involving dishonesty, for the purposes of clause 18(1)(d) of the Regulations. 19Ms Tipene further submitted that the maximum penalty for the offence under section 53(1)(a)(ii) of the Anti-Money Laundering Act is imprisonment for 2 years or 500 penalty units, or both. Therefore, it satisfies the requirement in clause 18(1)(d) of the Regulations that the maximum penalty for the offence must be imprisonment for 3 months or more. 20The Respondent contends that the revocation of the Applicant's licence is mandatory as he has been found guilty (but with no conviction being recorded) of a prescribed offence, within the last five years. On that basis, the Respondent contends that the decision to revoke the Applicant's security licence was correctly made. Discussion and conclusions 21I agree with Ms Tipene's submission in regard to the approach to be taken in this matter. 22The Act provides, at section 26(1A), that the Commissioner must revoke a licence in circumstances where a new licence application would be required to be refused. The Regulations prescribe that the Commissioner must refuse to grant an application for a licence if the applicant has, within the period of five years before the application for the licence is made, been found guilty but with no conviction being recorded of an offence prescribed by the Regulations. 23The Regulations prescribe as a relevant offence, an offence involving fraud, dishonesty or stealing in respect of which the maximum penalty is imprisonment for three months or more. The offence for which the Applicant has been found guilty is failing to report the movement of an amount of money that is more than $10,000. The maximum penalty for that offence is imprisonment for three months or more. 24As noted above, I have been referred to a number of decisions on the approach to be taken in determining whether an offence is one involving fraud, dishonesty or stealing the decision. In Sharp Towing the President considered various authorities that have dealt with the expression and concluded that the Tribunal can take into account the circumstances of the offence and not merely the terms or the elements of the offence. 25I am satisfied that I am able to consider the facts that were before the Court when that offence was found proven and I have done that. 26The facts were provided to me in the material filed by the Respondent pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. On the basis of those facts I am satisfied that the circumstances of the offence are such that they involve dishonesty. When asked about how much money was being moved, the Applicant indicated that there was $10,000 when in fact there was over $15,000. In my view it is improbable that somebody moving that amount of money would not have known that there was more than $10,000. Therefore, it is also my view he has deliberately withheld that information. In my mind that is dishonesty and therefore the offence for which he has been found guilty is an offence involving dishonesty for the purposes of this Act. It follows that the revocation of the Applicant's licence is mandatory, as he has been found guilty (but with no conviction being recorded) of a prescribed offence, within the last five years. 27It also follows that the decision to revoke the Applicant's security licence was correctly made and therefore it should be affirmed. Order 28The decision under review 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. Decision last updated: 09 October 2012