District Court New South Wales Medium Neutral Citation: Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81 Hearing dates: 11 May 2016 Date of orders: 11 May 2016 Decision date: 11 May 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The orders I make in relation to the Security Industry Act conviction appeal are: (1) The appeal against conviction is dismissed. (2) The appeal against severity is allowed. (3) I set aside the conviction and the penalty imposed by the magistrate and in lieu thereof I make the following order. (4) The offence is proven. Because of the company's lack of antecedents and the extremely low range of the objective seriousness of the matter considering that at all times the security guard was licensed in Queensland, I deem it inexpedient to inflict any punishment. The charge is dismissed under section 10 Crimes (Sentencing Procedure) Act 1999. 2 The orders I make on the Liquor Act offence conviction appeal are: (1) Appeal against conviction is allowed. (2) I set aside the conviction and the penalty imposed by the magistrate on 1 September 2015. Catchwords: CRIMINAL LAW – appeal - conviction – review – liquor licensing – security licensing – offence of strict liability - whether appellant licensee at the time of offence Legislation Cited: Crimes (Appeal and Review) Act 2001 ss.18, 24 Crimes (Sentencing Procedure) Act 1999 s.10 Liquor Act 2007 ss. 60, 61 Security Industries Act 1997 s.39 Cases Cited: Charara v R [2006] NSWCCA 244 Gianoutsas v Glykis [2006] NSWCCA 137 Fox v Percy (2003) 214 CLR 118 Category: Principal judgment Parties: Anthony John Sidgreaves (First Appellant) AJS Hotel Management Pty Ltd (Second Appellant) Regina (Respondent) Representation: Solicitors: Anothony Sidgreaves (First and Second Appellants) C Hyland, Solicitor for Public Prosecutions, Reposndent File Number(s): 2013/00066229; 2014/00209796 Judgment 1. Anthony John Sidgreaves (the appellant) was convicted of one count of licencee fail to comply with conditions of licence contrary to section 11(2) Liquor Act 2007 at the Downing Centre Local Court on 14 September 2015. 2. AJS Hotel Management Pty Ltd (the company) was convicted of one count of master licensee employ an unlicensed person contrary to section 39(1) Security Industry Act 1997 on the same date. 3. The matters arise from the operation of a hotel known as "Tommy's Tavern" (the hotel) in Lismore in 2012. 4. On or about 8 August 2011 the hotel was leased by its owners, AJ Holdings (NSW) Pty Ltd and Cumedo Pty Ltd (the owners) to a Mr Parrot. On or about 2 January 2012 the owners retook possession of the hotel as Mr Parrot had failed to pay rent. 5. On 24 January 2012 the appellant attended the Casino Liquor and Gaming Control Authority (the Authority) in Sydney and submitted a document entitled "Liquor licence transfer". In that document the appellant sought transfer of the hotel's liquor licence into his own name. There is no evidence that the transfer application was approved, even provisionally. 6. At all material times the company was the holder of a Master Security Licence pursuant to the Security Industry Act 1997. The master licence allowed the company to employ security guards to undertake crowd control work at the hotel. It was not a condition of the hotel licence that the licensee was required to provide security guards at the hotel. 7. Between about 28 March 2012 and 24 April 201, Jason Geoghan, (the security guard) provided crowd control services at the hotel. The evidence does not disclose on how many occasions the security guard worked at the hotel in the relevant period. The security guard was licensed in Queensland, but in the relevant period his New South Wales licence had lapsed. The Security Licensing Enforcement Directorate (SLED) was aware that the security guard was licensed in Queensland but it appears from the documents that he had not lodged a formal Mutual Recognition request. The effective such a request would have been to alleviate the need to apply for two current security licences at any one time. The security guard reapplied for New South Wales licence on or about 10 April 2012 and his application was completed on or about 30 April 2012. 8. The appellant on behalf the company made enquiries of the security guard as to the currency of his licence. The company contends in the appeal that it could not have done any more to ensure that the security guard was licensed at the relevant time. 9. At about 9:17 PM on 30 August 2012 the staff of the hotel closed it to the public. The general manager of the hotel, another employee of the hotel and two of their friends proceeded to prepare 72 shots of various liquors on the bar and to consume them over a period of time, in various states of undress. Their activities lasted over a number of hours until a noise complaint was made by a neighbour of the hotel that resulted in the police being called. It is fair to say that the "shenanigans" involved at the hotel on the night in question constituted a number of breaches of licence condition, not the least of which was a breach of the statutory condition contained in section 17(2) Liquor Act 2007 that the licencee failed to keep the hotel open to the public when liquor was being sold or supplied. 10. The issue in the appeal is limited to whether the appellant was the licensee of the hotel on 30 August 2012. Relevant law 1. The applicable principles to be applied in determination of the appeal are as follows. 2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]. 3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. 4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]. 5. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 6. Section 61 of the Liquor Act provides: 61 Application for transfer of licence on dispossession of licensee (1) This section applies in relation to a licence (other than a club licence) if: (a) the licensee is evicted from the licensed premises, or (b) the owner of the licensed premises comes into, or becomes entitled to, possession of the licensed premises to the exclusion of the licensee, or (c) the licensee is no longer employed by the owner of the business carried on under the licence (the business owner), or (d) the licensee is not complying, or does not have the capacity to comply, with the requirement under section 91 (1) to be responsible at all times for the personal supervision and management of the business of the licensed premises. (2) An application for a transfer of the licence may be made by the owner of the licensed premises or by the business owner. (3) The owner of the licensed premises who comes into, or is entitled to, possession of the premises, or the business owner (as the case requires), is taken to be the licensee of the premises until: (a) the day that is 28 days after this section becomes applicable, or (b) the day on which application is made under subsection (2), whichever first occurs. (4) If an application is made under subsection (2) not later than 28 days after this section becomes applicable, the applicant is, until the application is determined by the Authority, taken to be the licensee under the licence to which the application relates. (5) The Authority is not to determine an application for the transfer of a licence under this section unless: (a) the Authority is satisfied: (i) that notice of the application was given to the dispossessed licensee at least 3 clear days before the Authority determines the application (or that all reasonable steps necessary for giving notice were taken by or on behalf of the applicant and that failure to give notice was not due to any neglect or default of the applicant), and (ii) if so notified, that the dispossessed licensee has been given a reasonable opportunity to make submissions in relation to the application, and (b) the Authority is satisfied that any lessee of the licensed premises has been notified of the application for the transfer of the licence and been given a reasonable opportunity to make submissions in relation to the application, and (c) the Authority has taken any submissions made under this subsection into consideration. (5A) If: (a) an application under subsection (2) in respect of the licensed premises is not made within 28 days after this section becomes applicable, or (b) such an application is made but the transfer of the licence to the applicant is refused by the Authority, the licence is suspended until such time as the licence is transferred to another person. (6) Section 60 applies, with such modifications as are necessary, in relation to an application for the transfer of a licence under this section. Material considered on the appeal 1. The prosecution tendered the transcripts of the proceedings before the magistrate and the relevant exhibits. The Security Industry Act offence 1. The section 39 offence was a strict liability offence. The magistrate decided that the company did not have an honest and reasonable mistake of fact defence available to it because the mistake it made was as to a matter of law, ie was the security guard licensed, rather than as to a matter of fact. I agree with this analysis. 2. The matters put to me by the appellant on behalf the company were all subjective considerations. I accept, taking into account the proximity of the hotel to the Queensland border that a significant proportion of the available security guards also worked in Queensland. I also accept that the state of the mutual recognition legislation in 2012 was complicated. I note that this was rectified in September 2014 when it persons in the position of the security guard, the subject of these proceedings, were given automatic mutual recognition. The failing on behalf the company was an administrative one. It could have simply kept a copy of the security guard's New South Wales licence and recorded when it was due to expire. The company could thereby have prevented the security guard working when he was unlicensed. 3. The present case is somewhat unusual, almost to the extent of being extraordinary, in that the security guard was licensed in Queensland during the relevant period and there was no suggestion that his failure to be licensed in New South Wales was other than an oversight on the security guard's part or as a result of the complicated mutual recognition system in place at the relevant time. 4. The orders I make in relation to the Security Industry Act conviction appeal are: 1. The appeal against conviction is dismissed. 1. In dealing with the severity appeal on this matter, for the reasons expressed the matter is at the lowest end of objective seriousness for this type of offence. I note that the company no longer holds the master security licence and the hotel engages security guards through an independent contractor. The hotel licence did not require the provision of security guards but they were thought to be essential for the proper management of the hotel and this was a responsible view to take. I also note that the appellant at the time had a number of personal problems that contributed to the company's failure to ensure that the security guard was licensed. In all of those circumstances this is an appropriate matter to be dealt with pursuant to section 10 Crimes (Sentencing Procedure) Act 1999. 2. The orders I make in relation to the Security Industry Act severity appeal are: 1. The appeal against severity is allowed. 2. I set aside the conviction and the penalty imposed by the magistrate and in lieu thereof I make the following order. 3. The offence is proven. Because of the company's lack of antecedents and the extremely low range of the objective seriousness of the matter considering that at all times the security guard was licensed in Queensland, I deem it inexpedient to inflict any punishment. The charge is dismissed under section 10 Crimes (Sentencing Procedure) Act 1999. The Liquor Act offence Determination of the hotel licencee issue 1. The transfer of licence application to have the licence put in the appellant's name was never approved, even provisionally, by the Authority. It was an application pursuant to section 60 Liquor Act 2007. Put simply, if it was not approved, it could not have effected a transfer of the licence into the appellant's name. 2. Rather, the provisions of section 61 Liquor Act 2007 operated. The section applied to this case because the licensee was evicted from the premises and the owner became entitled to possession. An application for the transfer of the licence could then be made by the owner of the licensed premises or by the business owner (the owner). The owner was deemed to be the licensee from period of 28 days after taking possession of the hotel or on the date when an application for transfer was made by the owner, whichever first occurred. The owner was then deemed to be the licensee until the application was determined. 3. There is no evidence before me as to whether or not the owner made an application to have the licence transferred to it. The Administrative Decisions Tribunal decided in the circumstances of this case that the owners were responsible for the gaming machine tax. That decision was open because the gaming machine tax, according to the ADT, became due and payable within the 28 day period after the owners retook possession. At that time, by operation of section 61 Liquor Act 2007 they were deemed to be the licensee. 4. For the purposes of my decision, I cannot establish the identity of the holder of the hotel licence as at 30 August 2012. I cannot be satisfied beyond reasonable doubt that it was the appellant because there is no evidence that the application he submitted to the Authority on 24 January 2012 was approved. The appellant was not the owner of the premises or the business owner and was thereby not able to be deemed the licensee pursuant to section 61 Liquor Act 2007. 5. Accordingly, the appellant is entitled to be acquitted of the section 11(2) Liquor Act 2007 offence. 6. The orders I make on the Liquor Act offence conviction appeal are: 1. Appeal against conviction is allowed. 2. I set aside the conviction and the penalty imposed by the magistrate on 1 September 2015. ********** Amendments 23 May 2016 - Jurisdiction changed from "Civil" to "Criminal" 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: 23 May 2016