Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Katsonis v Commissioner of Police, NSW Police Force [2018] NSWCATOD 42 Hearing dates: 8 February 2018 Date of orders: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Occupational Division Before: A. Scahill, Senior Member Decision: 1. The decision under review to revoke Ms Katsonis' licence is set aside Catchwords: Security Industry Act – Security Industry licence – Revocation of licence-serious assault offence-not in the public interest-not fit and proper Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Security Industry Act 1997 (NSW) Security Industry Regulation 2016 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 Carter v Commissioner of Police [2005] NSWADT 265 Comalco Aluminium (Bell Bay) Limited v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Krzeminski [2002] NSWADTAP 3 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151 Haining v Commissioner of Police [1999] NSWADT 6 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 Jovanovic v Commissioner of Police, New South Wales Police Force, [2010] NSWADT 115 Kfoury v Commissioner of Police [2010] NSWADT 53 Krzeminski v Commissioner of Police (No 2) [2003] NSWADT 8 McDonald v Director General of Social Security (1984) 1 FCR 354 MU v Commissioner of Police [2004] NSWADT 197 Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169 O'Neill v Commissioner of Police, NSW Police Force [2005] NSWADT 130 R v Henry and Ors [1999] NSWCCA 111 Rowe v Commissioner of Police [2010] NSWADT 307 Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55 Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96 Toleafoa (No) 2 v Commissioner of Police [2000] NSWADT 48 Texts Cited: Second Reading Speech for the Security Industry Amendment Bill 2002 by Mr Gaudry (Parliamentary Secretary) on 12 November 2002 Category: Principal judgment Parties: Antonia Katsonis (Applicant) Commissioner of Police (Respondent) Representation: Applicant (self-represented) Maddocks (Respondent) File Number(s): 2017/00317430 Publication restriction: N/A REASONS FOR DECISION Background Facts 1. This is an application from Ms Angela Katsonis for the Tribunal to review the decision made by the Respondent to revoke her class 1AC security licence. 2. Ms Katsonis had worked as a security guard for approximately 16 years. Her class 1AC licence was issued on 24 April 2013 and was due to expire on 24 April 2018. 3. A Class 1 AC licence authorises the holder to: 1. Patrol, protect or guard any property while unarmed (and whether while static or mobile); and 2. Act as a crowd controller or to act in a similar capacity. 1. On 16 July 2016, Ms Katsonis was providing security at a club. Ms Katsonis assaulted a prospective patron to whom she had refused entry to the club because the prospective patron was intoxicated. The prospective patron sustained injuries including a laceration to her forehead, a lump on her forehead and headaches. 2. Ms Katsonis later pleaded guilty to assault occasioning actual bodily harm in the Local Court on 23 May 2017. Ms Katsonis was sentenced to a Section 9 Crimes (Sentencing Procedure) Act 1999 (NSW) bond. Ms Katsonis appealed against the severity of the sentence to the District Court on 7 June 2017. The District Court sentenced Ms Katsonis under section 10 of the Crimes (Sentencing Procedure) Act. No conviction was recorded, but Ms Katsonis was required to enter into a Good Behaviour Bond for 2 years. 3. Ms Katsonis' licence was suspended on 16 August 2016. The Respondent then revoked Ms Katsonis' security licence on 20 June 2017. 4. The reason was that the Commissioner considered Ms Katsonis was not fit and proper to hold a security licence and that it was not in the public interest for Ms Katsonis to continue to hold her security licence. 5. Ms Katsonis sought internal review in August 2017 which affirmed the decision to revoke Ms Katsonis' licence because she was not fit and proper and that it was not in the public interest for Ms Katsonis to continue to hold a security licence. 6. On 9 October 2017, Ms Katsonis applied for administrative review by the Tribunal. How the Hearing was conducted Nature of proceedings 1. The Tribunal has jurisdiction to determine this matter pursuant to section 29(1) (c) of the Security Industry Act 1997 (NSW). 2. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. Section 63(1) of the Administrative Decisions Review Act 1997 (NSW) provides that the Tribunal must determine what is the correct or preferable decision. 3. The Tribunal makes its own decision in place of the Commissioner's, and "there is no presumption that the decision of the [Commissioner] is correct. " See Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at 77 and McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. Additional mandatory ground 1. At the hearing, the Respondent added an additional mandatory ground for revocation. The Respondent submitted that section 26(1A) of the Security Industry Act required the Commissioner to revoke Ms Katsonis' licence because if Ms Katsonis had been applying for a new licence, the Commissioner would be required to refuse the application. This was because Ms Katsonis had been found guilty of a "serious assault offence" in May 2017. See clause 15(1A) (b) of the Security Industry Regulation 2016. The Issue 1. The preliminary issue for the Tribunal to determine is whether Ms Katsonis has been found guilty of a "serious assault offence". If the Tribunal finds that it was a serious assault offence, then Ms Katsonis' licence must be revoked. 2. If the Tribunal does not consider it was a serious assault offence, the Tribunal then needs to determine whether Ms Katsonis is not fit and proper to hold a security licence and whether it is not in the public interest for her to hold a licence. Evidence before the Tribunal 1. The Tribunal had before it the section 58 documents provided by the Respondent. These documents included the transcript of the Local and District court proceedings and the statement of agreed facts on which Ms Katsonis' guilty plea was based. Ms Katsonis' Case 1. Ms Katsonis was not represented at the Tribunal hearing. Ms Katsonis relied upon oral submissions to the Tribunal and the contents of a written submission by her solicitor Mr Teoh dated 22 August 2017 for the Internal Review. That submission did not deal with whether there had been a "serious assault offence" as this ground was not raised by the Respondent until the hearing. 2. Ms Katsonis relied on a letter provided to the Respondent dated 1 September 2016 by Ms Katsonis and character references provided to the Local and District Courts. 3. The Respondent also provided written submissions. A summary of these submissions is set out below. 4. A jump drive of CCTV footage of the incident in July 2016 was provided to the Tribunal. The footage was not viewed by the Local Court magistrate or the District Court judge. The Tribunal determined not to view the CCTV footage. The Tribunal determined to rely on what was set out in the agreed statement of facts for the criminal prosecution proceedings before the Local and District Courts. Applicable Legislation Grounds for mandatory revocation - Guilty of serious assault offence? 1. The Respondent relied on the provisions of section 16(1)(b) and 26(1A) of the Security Industry Act , "the Act", and clause 15(1A) (b) of the Security Industry Regulation 2016, as having required the Commissioner to revoke Ms Katsonis' security licence because of the finding of guilt for assault occasioning actual bodily harm in May 2017 which the Commissioner considered was a serious assault offence. 2. The relevant sections of the Security Industry Act are set out below. 3. Section 26(1A) of the Act provides: (1A) 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 this Act to be refused. 1. Section 16(1)(b) of the Act provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) … (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 in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or… 1. Clause 15(1A) (b) of the Regulation provides: (1A) Prescribed offences: section 16 (1) (b) For the purposes of section 16 (1) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (a)… (b) an offence under the law of any Australian or overseas jurisdiction involving assault of any description, being an offence that, in the opinion of the Commissioner, is a serious assault offence. (Emphasis added) Ms Katsonis' Case 1. The tribunal summarises Ms Katsonis' written submission to the Internal Review as follows. 2. Ms Katsonis relied on the following documents. 1. Local Court Transcript, Bankstown Local Court 23 May 2017 before Her Honour Magistrate Huntsman ("Local Court Transcript"); 2. District Court Transcripts for Appeal hearing and judgment, Parramatta District Court 7 June 2017 before His Honour Judge Bennett SC ("District Court hearing transcript" and "District Court judgment transcript"); 3. Reference from Christine Lockhart; 4. Reference from Dianne Jones; 5. Reference from Poppy Stonham. 1. Ms Katsonis pleaded guilty on 23 May 2017 at Bankstown Local Court because she accepted that she did use some force on the victim and the victim was hit. 2. Ms Katsonis then referred to the submissions that she made on sentencing having pleaded guilty. She submitted that the offence did not mean that Ms Katsonis was not a fit and proper person to hold a security licence, or that it was not in the public interest for her to hold a security licence. 3. There had been a high degree of provocation by the victim, and the victim's conduct resulted in a miscalculation by Ms Katsonis that she needed to defend herself, which she did so with excessive force. The victim's conduct was noted by His Honour Judge Bennett SC in the course of the District Court appeal proceedings. His Honour noted 'there was misconduct by this complainant that involved a large measure of provocation' but that Ms Katsonis reacted more than [she] ought to have in the circumstances'. 4. Ms Katsonis had worked as a security guard for 16 years. In the course of her work, she had dealt with many drunk people, and in so many years of work, she had never had an incident involving force. 5. Ms Katsonis had also never been complained about in carrying out her work. 6. If Ms Katsonis does not hold a security licence, she will lose her livelihood. After working in the security industry for 16 years, it is difficult for her to gain employment in other sectors. Ms Katsonis did work in the creche industry, but the bulk of her income came from her security work. She no longer works in the creche industry. Ms Katsonis is the carer for her parents and relies on employment for income, which will now be solely from the security industry. 7. Ms Katsonis is 38 years of age and has no prior conviction and has never been before the Court for any offence of violence, as found by the Magistrate. 8. Ms Katsonis was given a section 9 bond at her sentence in the Local Court. However, this was changed to a section 10(l)(b) bond on appeal in the District Court, and no conviction recorded. 9. On appeal, Judge Bennett noted "it's appropriate to deal with this offence as one toward the lower end of the range of objective seriousness". 10. Ms Katsonis asked that the Commissioner's decision to revoke her security licence be reversed, and that she be re-issued with her security licence. The Respondent's Case 1. The Respondent relied on the contents of the section 58 documents and written submissions. Respondent's written submissions 1. The Tribunal summarises the Respondent's submissions. 2. On 16 July 2016, the Applicant was involved in an incident during the course of her employment as a security guard, which resulted in her being found guilty of 'Assault occasioning actual body harm', with no conviction recorded and a 2-year good behaviour bond commencing in June 2017. 3. The Respondent considered that the Applicant was guilty of a 'serious assault offence' for the purposes of clause 15(1A) (b) of the Regulations. It was mandatory for the Respondent to revoke her licence. 4. As a result of the incident, the guilty plea and the 2-year good behaviour bond, the Respondent was not satisfied that the Applicant is a fit and proper person to hold a security licence. The Respondent was also satisfied it would be contrary to the public interest for the Applicant to hold a security licence. Mandatory revocation for a Serious assault offence 1. Section 26(1A) of the Act states 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 to be refused. 2. Revocation is mandatory if the Tribunal is satisfied that the Applicant has been found guilty (even if no conviction was recorded) of a serious assault offence. See Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169 at [8]. 3. The preliminary issue to be determined is whether the Applicant has been found guilty of a "serious assault offence". Serious assault offence 1. The approach to be adopted by the Tribunal in determining whether there had been a serious assault offence, was discussed by Judicial Member Grant in Kfoury v Commissioner of Police [2010] NSWADT 53 at [68]- [71] 68 In the Commissioner of Police v Krzeminski [2002] NSWADTAP 3 ("the Appeal Panel Krzeminski decision') at paragraph [3] stated: "The question whether the Applicant's offence should be considered a "serious assault" involves both questions of fact and questions of law. The word "serious" bears its ordinary meaning and gives rise to a question of fact. "Serious" is defined in the Shorter Oxford English Dictionary (1992) as: "Not light or superficial... not jesting, trifling or playful, ... weighty; important; grave; (of quantity or degree) considerable..." However, the scope of the matters that can be taken into account in determining whether a particular offence is a "serious assault" offence involves the effect or construction of this phrase, though as a question of law." 69 In assessing whether the offence is "serious" the Tribunal must confine itself to the material that was before the Local Court when hearing the case. It is not the Tribunal's role to re-hear the criminal charges, or to take any fresh evidence into account: the Appeal Panel Krzeminski decision, at paragraph [32]. 70 The correct approach to be adopted by the Tribunal in determining this issue is discussed in Krzeminski v Commissioner of Police (No 2) [2003] NSWADT 8 ("Krzeminski (No 2)") where it was held that mitigating factors, which are ordinarily taken into account at sentencing, are of no relevance to whether an assault constitutes "a serious assault offence" for the purposes of clause 18(1)(c). Only the objective conduct constituting the offence is relevant. Judicial Member Lee stated at paragraphs [34]- [35]: "[34] This Tribunal's task is to determine whether the offences for which the Applicant was found guilty of committing constitute "serious assault offences" in accordance with the reasoning in the Appeal Panel's decision. Essentially that reasoning requires that the Tribunal only have regard to actual circumstances of the relevant conduct insofar as was required to establish the assault offence, that is, for the purposes of the issue before it, only the objective conduct constituting [the offence is relevant, not the whole circumstances of the case or the personal and mitigating factors ordinarily taken into account by a Judge determining an appropriate penalty. [35] Accordingly, as the Applicant's submissions almost entirely concerned personal and mitigating factors, these factors cannot be used in the manner contemplated by the Applicant in any sort of balancing or discretionary exercise, in order to determine whether his offensive acts, for which he pleads and was found guilty, objectively constituted a 'serious assault offence'." 71 In R v Henry and Ors [1999] NSWCCA 111 at 85 Spigelman CJ stated at p. 168: "There is no doubt that impact on victims is an indication of the seriousness of an individual offence." In the present case the victim sustained significant injuries including severe swelling and bruising to the right side of the face, as well as a black right eye and cut above it. In Krzeminski (No 2) Judicial Member Lees observed: "In the Tribunal's view it is conceivable that a common assault offence could fall anywhere along a continuum ranging from a trivial common assault offence to an extremely serious common assault offence (although to a victim any assault they have been subjected to might not be considered trivial, objectively viewed it may be so). Accordingly, not all common assault offences are necessarily serious. A common assault offence may be considered "trivial or serious" to one degree or another depending on the factors present in the commission of the offence. In addition to the effect the assault has on its victim/s, some other factors might include: the vulnerability of the victim, the voluntariness or not of the offender's conduct; what is actually said or intimated by the offender; the offender's tone and volume of voice and the offender's appearance and bodily actions or gestures and the apparent degree of control or calm in the offender (his or her intensity and demeanour); the use or not of bodily force; the presence or not of weapon/s held by offender or victim; the nature and dangerousness of such weapon/s and the use, if any, that is made of such weapon/s. These factors are each capable of reasonably objective observation and an incident's triviality or seriousness may result from the presence of one factor or an aggregation of such factors." (Para 46) 1. The Respondent submitted that the following matters were relevant to an objective determination that Ms Katsonis had been found guilty of a "serious assault offence": 1. In the Local Court Proceedings, the Magistrate noted that: 1. the Applicant "was called a bitch and that there was some hostility and swearing" from the victim; 2. the assault "appears to be one injury from one hit, and in terms of objective seriousness, it is therefore well below the mid-range of those kinds of offences"; 3. the injury caused by the offence "was substantial. There was a physical injury. There was a headache on the facts before me, and there would have been trauma for the victim, having that occur by someone in a position of authority at the club. So, there is a significant level of harm to the victim"; 4. "There is abuse of a position of authority. You are a security officer. You should not be in a position where you assault patrons, no matter what." 5. "Whether her behaviour is undesirable, you are expected as a security officer at a licensed premises to be able to not react, to be able to not respond. There are always concerns in the community, where people are assaulted by security at licensed premises, and it does come before the Court. There are such cases. Yours is at the lower level, but it is by no means a trivial matter. It is a matter where there is a strong public interest in making sure that security officers receive the message that assaults on patrons will be punished by the courts, because they must be discouraged." 6. "what aggravates your offence...is that you were in a position of authority. You were a security officer at the club. You were there to restrict, to manage the intoxicated clients if they were there and to ensure that the club stood by and upheld its licensing requirements -responsible service of alcohol, duty of care, not to admit intoxication on the premises"; 7. "I am asked to not record a conviction and place you on a good behaviour bond under s 10(1)(b) of the legislation. I can do so, where it is a trivial offence. This is not a trivial offence". 1. In the District Court Proceedings, Justice Bennett noted that: (i) "Upon the material I've got, there was misconduct by this complainant that involved a large measure of provocation and you reacted more than you ought to have in the circumstances". (ii) "it does seem to me that it's appropriate to deal with this offence as toward the lower end of the range of objective seriousness". 1. the Applicant admitted that her action of nudging the victim was not part of her responsibilities as a security guard; 2. as a security guard, the Applicant has been trained to deal with intoxicated and aggressive patrons. 3. the use of bodily force and the voluntariness of the Applicant's conduct are factors suggesting the offence was serious rather than trivial; 4. the victim sustained a 2cm cut to her head, a visible lump and headaches as a result of the incident. As previously noted, the effect of the assault on the victim is a relevant factor in determining objective seriousness of the offence; 5. The CCTV footage reveals that the shoving and striking by the Applicant was "not light or superficial" or "jesting, trifling or playful". The Applicant also did not need to follow the victim outside the venue, after she had left. 1. Section 21A of the Crimes (Sentencing Procedure) Act lists aggravating factors relevant to determining the appropriate sentence for an offence. In particular, s21A(2)(k) identifies "the offender abused a position of trust or authority in relation to the victim" as an aggravating factor. This factor was also referred to by the Magistrate in the Local Court Proceedings. 2. The Tribunal should follow previous Tribunal decisions in Ibrahim v Commissioner of Police [2009] NSWADT 245 and Kfoury Commissioner of Police [2010] NSWADT 53, which found that the assaults committed by the security guards involved in similar circumstances were "a serious assault offence". 3. The Respondent said that Ms Katsonis had pleaded guilty to the facts as set out in the agreed facts sheet and the Tribunal should be confined to the material that was also before the Local Court. The Tribunal could not take into account mitigating factors that were not part of the agreed facts. See Kfoury Commissioner of Police [2010] NSWADT 53 at paragraphs [68] and [69]. 4. The evidence before the Tribunal, which was before the Local Court and District Court, and the comments made by both the Local Court Magistrate and District Court Judge, should satisfy the Tribunal that the assault was a "serious assault offence" and accordingly, revocation of the licence is mandatory. Ms Katsonis' submissions at the hearing 1. Ms Katsonis told the Tribunal that she had made a mistake during the incident. She said "I know what I did was wrong. She aggravated me. She hit me. She called me names. I tried to move her away. I deserve a second chance of having my career back. I love my job and I take it seriously." She accepted full responsibility for her actions and is remorseful, which was demonstrated by her plea of guilty. Not a serious assault offence 1. Ms Katsonis said that the offence was not a serious assault offence. She said that the forehead is a sensitive area and the victim had a lot of alcohol beforehand - so she bled easily. She agreed that she had used excessive force. However, if the assault had been that serious, the victim would not have stayed on her feet. The victim did not fall or stumble. The victim still wanted to fight her. The Tribunal's Findings Findings of Fact 1. The Tribunal is satisfied from the evidence before it that Ms Katsonis has no prior or subsequent criminal record other than the assault occasioning actual bodily harm to which she pleaded guilty in May 2017. The Tribunal is satisfied that Ms Katsonis committed the offence during her work as a security guard. 2. The Tribunal had several versions of the incident before it. 1. Ms Katsonis wrote to the Director of SLED on 1 September 2016 seeking review of the decision to suspend/revoke her security licence. Ms Katsonis set out a version of the events in that letter. 2. A facts sheet setting out an agreed version of the facts was before the Local Court when Ms Katsonis' pleaded guilty in May 2017. This was the basis upon which Ms Katsonis was sentenced. 3. The section 58 documents contain a version of the events from the victim. 4. Ms Katsonis' solicitor's submission provided to the internal reviewer in August 2017 contains a version of the events. 5. A jump drive showing CCTV footage of the assault on 16 July 2016 was presented to the Tribunal. 1. Both parties opposed the tendering of the CCTV footage. From the Respondent's perspective – it could not be relied upon in relation to whether Ms Katsonis had been guilty of a "serious assault offence" making revocation of her licence mandatory. This was because the Agreed Facts Sheet before the Local Court was the basis of Ms Katsonis' guilty plea and sentencing. The Respondent submitted that, on the other hand, the CCTV footage could be relied upon for making findings about whether Ms Katsonis was "fit and proper" and whether it was in the public interest for Ms Katsonis to continue to hold a security licence. 2. Ms Katsonis opposed the tendering of the CCTV footage as the Magistrate (and District Court Judge) had not viewed it. She had not been made aware that the Respondent would be relying upon it. 3. The Tribunal followed the approach of the Tribunal in the matter of Kfoury and determined not to view the CCTV footage which had not been viewed by the Magistrate and to rely on the Agreed Facts which were before the Magistrate. Description of the offence in the facts sheet 1. The facts sheet described the assault as follows: …The victim was denied entry by security due to her level of intoxication. The victim then stood out the front of the main entrance of the club, standing against the wall. Security walked over to the victim to speak with her. The accused, who was working security at the time, attended to the victim. The accused approached the victim and nudged her with her left arm in order to move the victim away. An altercation has occurred between the two. The accused has raised her arm and hit the victim in the head with her fist, which has caused the victim to get a cut to her forehead. The cut was about 2 cm in length and cause bleeding. The victim stated she felt immediate pain… …In the footage it appears that the accused and the victim are by themselves outside the front entrance. There appears to be an argument between the two where there is pushing and shoving. The accused has then hit the victim in the face. Other security officers have attended and the victim was taken inside the club to be treated for first-aid. …The accused then participated in an interview where she admitted to pushing the victim in order to make her move away from the location. The accused admitted that the victim was highly intoxicated and may not have comprehended what was being said when she was told to leave the premise. The accused admitted that her action of nudging the victim was not part of her responsibilities as a security guard. Once the accused nudged the victim, the victim started to wave her arms. The accused swung her arm towards the victim and punched her in the face. She states she did not intend to hit her. The accused stated, "It was just to scare her. Was it a serious assault offence? 1. There is no definition of a "serious assault offence" in the Act or Regulations. Whether Ms Katsonis' offence should be considered a "serious assault offence" is an issue for determination by the Tribunal. Section 140 Evidence Act 1995 1. Where the Tribunal needs to satisfy itself of a matter, it does so on the basis of the civil standard of proof - the balance of probabilities - set out in section 140 of the Evidence Act 1995. 140 Civil Proceedings: Standard of Proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. The Tribunal needs to be satisfied on the balance of probabilities that Ms Katsonis' assault was a serious assault offence. What is a serious assault offence? 1. In the Commissioner of Police v Krzeminski [2002] NSWADT AP 3 ("the Appeal Panel Krzeminski decision") at paragraph [3] stated: The question whether the Applicant's offence should be considered a "serious assault" involves both questions of fact and questions of law. The word "serious" bears its ordinary meaning and gives rise to a question of fact. "Serious" is defined in the Shorter Oxford English Dictionary (1992) as: "Not light or superficial ... not jesting, trifling or playful, ... weighty; important; grave; (of quantity or degree) considerable... 1. In Kfoury at paragraph [70] the Tribunal limited the material to the actual circumstances of the relevant conduct which were required to establish the assault offence. 2. In Krzeminski v Commissioner of Police (No 2) [2003] NSWADT 8 ("Krzeminski (No 2)") the Tribunal held that mitigating factors, which are ordinarily taken into account at sentencing, are of no relevance to whether an assault constitutes "a serious assault offence" for the purposes of clause 18(1)(c). Only the objective conduct constituting the offence is relevant. 3. In summary, in assessing whether the offence is "serious" the Tribunal must confine itself to the material that was before the decision maker when hearing the case. It is not the Tribunal's role to re-hear the criminal charges or to take any fresh evidence into account. See the Appeal Panel Krzeminski decision at paragraph [32]. The Tribunal can only consider the circumstances of the actual offence and cannot consider any mitigating circumstances or circumstances relating to the penalty imposed. 4. The Facts Sheet describes the act of the assault: The accused has raised her arm and hit the victim in the head with her fist, which has caused the victim to get a cut to her forehead. The cut was about 2 cm in length and cause bleeding. The victim stated she felt immediate pain… 1. In the transcript of the Local Court proceedings the Magistrate refers to "the hit in the face". 2. The Magistrate referred to the elements she was required to consider under Section 21A of the Crimes (Sentencing Procedure) Act in sentencing Ms Katsonis. Section 21A sets out Aggravating, mitigating and other factors in sentencing: 21A (1) (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. (Emphasis added) 1. The Magistrate referred to "the objective seriousness of the offending." The Magistrate referred to the broad range of harms falling within grievous bodily harm and assault occasioning actual bodily harm and stated: This appears to be one injury from one hit, and in terms of objective seriousness, it is therefore well below the mid-range of those kinds of offences. 1. The Magistrate also stated: "Yours is at the lower level, but it is by no means trivial." And, "it is not a trivial offence" 1. In the District Court, the Judge stated: In the course of all this the appellant struck out a blow that caught the complainant about mid forehead leaving a small laceration with some bleeding…Synthesising all of that material it does seem to me that it's appropriate to deal with this offence as one toward the lower end of the range of objective seriousness. 1. The Tribunal notes that these last comments from his Honour are in part aimed at the issue of penalty. Mitigating factors are not relevant in determining the objective seriousness of an assault. 2. In Krzeminski (No 2) Judicial Member Lees observed that the factors determining whether there has been a serious assault offence include the impact of the assault on the victim and the victim's vulnerability. See also Spigelman CJ In R v Henry and Ors [1999] NSWCCA 111 at [168]. Impact on victim and vulnerability 1. The Magistrate described the injury to the victim as substantial; there was a significant level of harm to the victim; there would have been trauma. The Tribunal is satisfied that Ms Katsonis' victim was intoxicated and clearly vulnerable. 2. The victim's statement said that "she hit me directly in the head. I felt immediate pain. I was in shock." The victim stated "I felt blood coming from my head and I touched my forehead. I then saw blood on my hands...I had a headache on Sunday and Monday." The role of aggravation in objective seriousness of the assault 1. The Magistrate noted that Ms Katsonis had abused her position of authority. The Respondent submitted that as a security guard, Ms Katsonis was in a position of power or authority over the victim. This was an aggravating factor which should contribute to a finding that it had been a serious assault offence. 2. The Magistrate expressed concern about the Applicant's aggressive conduct in circumstances where her training should have led her to behave differently. Findings in Kfoury and Ibrahim 1. The Tribunal compares the factual circumstances of Ms Katsonis' assault to those of security guards Mr Ibrahim and Mr Kfoury – both of whom were found to have committed serious assault offences warranting mandatory revocation. See Ibrahim v Commissioner of Police [2009] NSWADT 245 and Kfoury Commissioner of Police [2010] NSWADT 53. In Mr Kfoury's case, Mr Kfoury had pushed the patron who had fallen over into the gutter. There did not appear to have been provocation from the patron. The prospective patron sustained injuries including severe swelling and bruising to the right side of his face, a black eye and laceration above the eye. 2. In Mr Ibrahim's case, Mr Ibrahim followed the victim who had been excluded from the premises along the footpath for some metres and then onto the roadway whilst the victim was still making derogatory comments to him. The victim turned and faced Mr Ibrahim on the roadway and words were exchanged between them. The victim raised his hands to shove the accused. The accused forcefully pushed the victim to the ground with his hands and as a result the victim fell onto the roadway and gutter. This caused bruising, scratches to the right side of his face and a cut lip. The injuries that the victim sustained during the assault were serious. The Tribunal was able to view the CCTV footage. 3. This Tribunal is satisfied that in both Mr Kfoury's and Mr Ibrahim's case the victims fell as a result of the assaults and their injuries were more serious. Further it appears that Mr Ibrahim pursued the victim after exclusion because he was angered by the victim's comments. 4. The Tribunal does not, on the accounts before it, and in the absence of CCTV footage, consider Ms Katsonis' assault to be as serious as either that of Mr Kfoury or Mr Ibrahim. 5. The Tribunal is satisfied that Ms Katsonis acted in an unjustified aggressive manner causing injuries to the victim and she did this whilst on duty as a security guard. Ms Katsonis' duties did not require that she engage in a physical altercation with the victim. Ms Katsonis was trained to deal with difficult circumstances. The victim was intoxicated and vulnerable. All of these matters were noted by the presiding Magistrate. At the same time however, the presiding Magistrate's view was that the assault was "well below the mid-range"; "well below the mid-range of those kinds of offences"; "at the lower level, but it is by no means trivial." 6. The Magistrate found that Ms Katsonis' offence was below the mid-range for the offence. 7. This was not contradicted on appeal by the District Court Judge. 8. The Tribunal is not satisfied that the circumstances of the assault should be considered as serious. Nor was the assault trivial. The impact on the victim was substantial and she would have been traumatised. However, the Tribunal is not satisfied on the balance of probabilities that this was a serious assault offence. Grounds for mandatory revocation Not a fit and proper person: Sections 15(1)(a) and 26(1 A) of the Act 1. The Respondent said that sections 15(1)(a) and 26(1A) of the Security Industry Act, required the Commissioner to revoke Ms Katsonis' security licence because she could not be considered fit and proper to hold a security licence as a result of her finding of guilt and receiving a good behaviour bond. 2. Section 26(1A) of the Act provides: (1A) 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 this Act to be refused. 1. Section 15(1)(a) of the Act provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, (emphasis added) 1. Accordingly, if the Tribunal is satisfied that the Applicant is not a fit and proper person, there is no discretion as to whether the Applicant's licence should be revoked. See Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169 at [8]. 2. During the Second Reading Speech for the Security Industry Amendment Bill 2002, Parliamentary Secretary Mr Gaudry noted that: ...the determination of whether a person is "fit and proper" is contextual, as has been recognised in common law. For example, in Australian Broadcasting Tribunal v Bond, Justice Toohey and Gaudron found that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. See the Second Reading Speech for the Security Industry Amendment Bill 2002 by Mr Gaudry (Parliamentary Secretary) on 12 November 2002. 2. The Tribunal has held that "the Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high degree". See Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11] 3. The issue of whether a person is fit and proper to hold a licence has also been considered in numerous cases before the Courts and the Tribunal. 4. In Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96 ,34 Judicial Member Higgins noted at [35]: It is well established that a person's fitness and propriety must be considered in the context of the activity for which the person is licensed (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond (supra)). In this regard as pointed out by the Tribunal in Haining v Commissioner of Police [1999] NSWADT 6 and followed in Toleafoa (No) 2 v Commissioner of Police [2000] NSWADT 48, the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the private and public venues are safe. 1. The CCTV footage, Facts Sheet and findings of the Local Court Magistrate in relation to the incident at the Club reveal that the Applicant struck at the victim in circumstances where such action was unnecessary. That the Applicant struck the victim whilst working as a licensed security officer increased the gravity of her conduct. See Rowe v Commissioner of Police [2010] NSWADT 307 at [22] 2. The Respondent submitted that the incident also demonstrates that the Applicant cannot be trusted to act professionally, responsibly and without risk to public safety when conducting her duties as a security guard. 3. Despite the Applicant having a good criminal record, and the finding that "there was some hostility" from the victim, the Applicant still retaliated when provoked. Consequently, the Tribunal cannot be confident that the Applicant would not again retaliate in the course of her duties as a security guard. 4. The Applicant's improper conduct while working as a security officer, meant that the Tribunal cannot be satisfied that the Applicant is a fit and proper person, and the correct and preferable decision is to affirm the decision to revoke the Applicant's licence. 5. At the hearing, the Respondent submitted that once the good behaviour bond of two years expired, Ms Katsonis may be able to reapply and be considered as fit and proper. Ms Katsonis' submissions on Fit and Proper Person 1. The Tribunal sets out Ms Katsonis' written submissions made to the Internal Reviewer on the issue of "Fit and Proper". 2. Ms Katsonis relied on the same character references that she tendered on sentence. The references are from people who have known her personally and professionally for many years. 3. The meaning of 'fit and proper person' was considered in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321: 'The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of a person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur". 1. There is no evidence to suggest that Ms Katsonis is likely to re-offend. The sentencing Magistrate stated that Ms Katsonis is 'a person of good character' and accepted that Ms Katsonis is unlikely to reoffend. 2. Further, the sentencing Magistrate noted that "I don't think we are going to need to protect ourselves from you. I do accept that this was out of character". 3. The sentencing Magistrate noted the statement of a witness who had worked with Ms Katsonis at the club for about 18 months, and who is also a police officer. This witness stated that she had never seen Ms Katsonis grab anyone "or do anything like that." 4. The witness also stated that she has "never seen any aggressive behaviour" by Ms Katsonis. The sentencing Magistrate gave 'quite a lot of weight' to this statement. 5. The incident involving the offence was one-time incident that involved force. Ms Katsonis has been working in the security industry for 16 years and has had no incidents involving violence or force, nor have there been any complaints against her. 6. In Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151, several factors were identified to determine a person's fitness to hold a security licence, which include: (a) The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted - in Ms Katsonis' case, this is her only criminal matter, for which no conviction was recorded; (b) The nature, seriousness and frequency of any complaints made against the applicant - as previously stated, there have been no complaints made against Ms Katsonis in the course of her work; (c) The applicant's reputation in the community - Ms Katsonis' references show that she is a person of good standing in the community; (d) The likelihood that the applicant will re-offend, be the subject of further complaints of commit further offences - as previously stated, there is nothing to suggest that Ms Katsonis will re-offend. 1. In Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169, the Tribunal considered several prior cases in which applicants were found to not be a fit and proper person to hold a security licence. In contrast to those cases, there is no evidence or record of Ms Katsonis to suggest that, apart from the incident involving the offence, she is not a fit and proper person. She has not been dishonest. She has not demonstrated a disregard for the law in the past. She has not been behaved in any way to attract the attention of the police. To the best of her knowledge, she has not been involved in any incidents in which a police report was made against her. 2. Further, in Nakad at [40], the Tribunal quoted "Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded of crucial importance. I would not go as far to say that one criminal offence must necessarily deprive a person of that fitness...". 3. Ms Katsonis has been a fit and proper person to hold a security licence for 16 years, but for the incident involving the offence, during which there was a high degree of provocation of Ms Katsonis, and some evidence of self-defence. This was Ms Katsonis' only incident in 16 years. Her conduct during the incident is unlikely to occur in the future, and at the very least there is no evidence suggesting that will occur. Ms Katsonis is a fit and proper person to hold a security licence. The Tribunal's findings on "Fit and Proper" 1. The meaning of fit and proper person in the context of issuing a driver authority was considered by the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. In that matter Deputy President Hennessy said that the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. 2. The Appeal Panel in Murray referred to the approach of the High Court to the phrase "fit and proper person" as set out in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. These passages were set out by both Ms Katsonis and the Respondent. Toohey and Gaudron JJ stated (at 380) that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. In the same case, Mason CJ stated at [63] that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. (emphasis added) 1. The content of fitness and propriety was defined in the matter of Hughes & Vale in the High Court as having 3 components -"honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 2. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 1. This Tribunal's synthesis of these requirements in this matter is that Ms Katsonis' fitness and propriety must be determined in the light of the role she is to undertake. The Tribunal must consider the evidence before it about Ms Katsonis' honesty, knowledge and ability as it relates to the specific role of security guard. The Tribunal needs to have some satisfaction about Ms Katsonis' likely future conduct. The Tribunal needs to make the determination by taking into account and weighing up matters both contrary to and in favour of Ms Katsonis. 2. It is clear that Ms Katsonis has been deeply affected by the assault, the court proceedings and the loss of her licence. This was clear from the references provided by Ms Katsonis; the letter from her general practitioner, Dr Pappacosta and her own distress during the Tribunal proceedings. Ms Katsonis also told the Tribunal that her career options had been limited by the finding of guilt and the good behaviour bond. However, the impact of loss of licence on Ms Katsonis is not a relevant factor in determining whether she is fit and proper to hold a licence. 3. The Tribunal accepts the submissions made to the Internal Review by Ms Katsonis' representative in August 2017. There is no evidence to suggest that Ms Katsonis is likely to re-offend. The sentencing Magistrate stated that Ms Katsonis is 'a person of good character' and accepted that Ms Katsonis is unlikely to reoffend. 4. Further, the sentencing Magistrate noted that "I don't think we are going to need to protect ourselves from you. I do accept that this was out of character". 5. The sentencing Magistrate noted the statement of a witness who had worked with Ms Katsonis at the club for about 18 months, and who is also a police officer. This witness stated that she had never seen Ms Katsonis grab anyone "or do anything like that." 6. The witness also stated that she has "never seen any aggressive behaviour" by Ms Katsonis. The sentencing Magistrate gave 'quite a lot of weight' to this statement. 7. The incident involving the offence was one-time incident that involved force. Ms Katsonis has been working in the security industry for 16 years and has had no incidents involving violence or force, nor have there been any complaints against her. 8. In Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151, several factors were identified to determine a person's fitness to hold a security licence, which include: (a) The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted - in Ms Katsonis' case, this is her only criminal matter, for which no conviction was recorded; (b) The nature, seriousness and frequency of any complaints made against the applicant - as previously stated, there have been no complaints made against Ms Katsonis in the course of her work; (c) The applicant's reputation in the community - Ms Katsonis' references show that she is a person of good standing in the community; (d) The likelihood that the applicant will re-offend, be the subject of further complaints of commit further offences - as previously stated, there is nothing to suggest that Ms Katsonis will re-offend. Factors about fitness and propriety 1. The Tribunal accepts the Respondent's contention that factors against a finding of fitness and propriety include that fact sheet before the Local Court demonstrates that Ms Katsonis' action was unnecessary. In addition, the fact that Ms Katsonis committed the offence while she was undertaking her work as a security guard increases the gravity of her conduct. 2. At the same time however, in sentencing Ms Katsonis and imposing a penalty, the Magistrate listed several mitigating factors. The Magistrate commented that the victim was abusive to Ms Katsonis; there was one hit and it was well below the mid-range of those offences; that Ms Katsonis was a person of good character and unlikely to reoffend and stated "I don't think we need to protect ourselves from you"; this was out of character; and gave weight to a witness statement that the witness had never seen any aggressive behaviour from Ms Katsonis. The references make it clear that it is out of character behaviour and that Ms Katsonis is still held in high esteem by the referees. The Presiding Magistrate stated that the community did not need protection from Ms Katsonis and that she was unlikely to reoffend. 3. The Respondent did not lead evidence to contradict the referees or the views of the Magistrate. 4. Accordingly, the Tribunal does not accept the Respondent's contention that the incident demonstrates that the Applicant cannot be trusted to act professionally, responsibly and without risk to public safety when conducting her duties as a security guard. Nor does the Tribunal accept that as a result of Ms Katsonis' one (reported) retaliation to provocation in 16 years that it should lack confidence in her capacity to behave appropriately in the future. 5. The Tribunal notes that Ms Katsonis is subject to a 2-year Good Behaviour bond from June 2017. As noted by Ms Katsonis' counsel at the sentencing hearing, 2 years is at the upper end of good behaviour bond terms. At the same time, however, there was no principle put before the Tribunal that established that being on a good behaviour bond renders Ms Katsonis not fit and proper. On one view being subject to a good behaviour bond is an encouragement to its subject to remain "fit and proper". 6. The Tribunal is satisfied on the basis of all the information put before it that it can affirm that Ms Katsonis fit and proper to undertake the role of security guard. Discretionary Grounds for Revocation Not in the public interest: Section 26(1)(d) of the Act and clause 25(1) of the Regulation 1. Section 26(1)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulation. 2. Clause 25(1) of the Regulation provides that a licence may be revoked if the Commissioner considers that it would be contrary to public interest for the person to whom it is granted to continue to hold it. 3. The Respondent relied on the provisions of section 26(1) (d) of the Security Industry Act, and Clause 29 of the Security Industry Regulation 2016, as having given the Commissioner the discretion to revoke Ms Katsonis' security licence because it was not in the public interest for Ms Katsonis to hold a security licence as a result of her finding of guilt and receiving a good behaviour bond. 4. Section 26(1)(d) of the Act provides: 26. Revocation of licence (1) A licence may be revoked: (d) for any other reason prescribed by the Regulations. 1. Clause 25 of the Security Industry Regulation 2016 ("the Regulations") provides: 29. Revocation of licence – additional reason: s.26(1)(d) For the purposes of s.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. 1. The term 'public interest' has been considered by numerous Courts and Tribunals, particularly within the context of security industry licensing. 2. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual." 3. In Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 at [33], the Appeal Panel held that: The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. 1. The Applicant's personal interest in retaining her licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. See Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at [32]). 2. The Applicant's need to continue to hold her licence, is subordinate to the need to ensure public safety. See Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 3. The Commissioner must exercise the discretion to revoke a licence having regard to the objects of the Act. While these are not expressly stated in that Act it can be inferred that they include an object of ensuring that those who are licensed under the Act can be trusted by the public to properly perform the duties of watching, guarding or protecting property, act as a bodyguard or carry out crowd control functions in a professional manner. See Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96 at [40]. 4. Judicial Member Grant also provided a useful summary of the 'public interest' ground in Jovanovic v Commissioner of Police, New South Wales Police Force, [2010] NSWADT 115, at [100] - [101] within the context of considering the revocation of a licence as a result of the Applicant's criminal record and conduct: 100 The objects and intentions of the Security Industry Act must be readily kept in mind and the highest standard that is applicable to licensees within the security industry. I note the statement made by Mr Gaudry, Parliamentary Secretary in the New South Wales Legislative Assembly on 12 November 2002 when he said, at page 6544 of Hansard: "Clearly it is in the public interest that persons thought by police to present a public safety or criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged (or convicted) with a specific criminal offence." 101 The public interest in the paramount consideration to be given public safety demands that the public is not exposed to security officers who, for whatever reason, are incapable of undertaking their responsibilities in a professional manner and curbing their anger and impulse to inflict harm on others. 106 In regard to the term "public interest": "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public, as distinct from the interest of an individual or individuals." (Director of Public Prosecutions v Smith (1991) 1 VR 63). 114 In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT114, the Tribunal observed, at [11]: "The Security Industry Act 1997 established a scheme for licensing people to carry on security activities. Within that Act there are several provisions that allow the Commissioner to revoke a licence. The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard. 115 Aggressive behaviour, and persons that exhibit such behaviour, have no role in the security industry, as was observed in Carter v Commissioner of Police [2005] NSWADT 265 at [27]: "I agree with the Commissioner in relation to the risk to the public and that the violent and aggressive behaviour that Mr Carter displayed during the commission of his offence is not in keeping with the special role that is played by the Security Industry in ensuring that public order is maintained." 1. The Respondent submitted that it would be contrary to the public interest for the Applicant to continue to hold her security licence for the following reasons: 1. the Applicant had been found guilty of 'Assault occasioning actual bodily harm', as a result of an incident with a patron during the course of her duties as a security guard; 2. the Applicant's criminal record, and the context within which the Applicant was found guilty of 'Assault occasioning actual bodily harm': 1. is relevant to the activities carried on under the class of licence held by the Applicant; 2. is capable of causing the Tribunal to conclude that improper conduct is likely to occur if the Applicant continues to hold the licence, or 3. causes the Tribunal not to have confidence that improper conduct will not occur if the Applicant continues to hold the licence; 1. In those circumstances, the Tribunal should be satisfied that it would be contrary to the public interest for the Applicant to continue to hold her security licence. 2. At the hearing, the Respondent submitted that once the good behaviour bond of two years expired, Ms Katsonis may be able to reapply and that it could be considered as in the public interest for her to hold a licence. Ms Katsonis' submissions on Public Interest 1. In Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55 at [62], the Tribunal considered the concept of public interest for security licence holders. The Tribunal stated: 'The interests of the public in circumstances such as these consist mainly in the strict and fair control of security industry licensing and personnel and the protection of the community and its collective and private property." 2. Ms Katsonis takes her work seriously and takes responsibility for her work. Ms Katsonis' work is to protect the community, a job which she has done well, without incident, for 16 years. This single incident does not diminish her competency to protect the community, nor does it demonstrate any inability to continue protecting the community. 3. Further, due to Ms Katsonis' length of service as a security guard, her experience in protecting the community is invaluable and the loss of her security licence would be a loss to the community. 4. There is no risk to public safety for Ms Katsonis to hold a security licence, as demonstrated that it is very unlikely that she will be involved in such an incident again. It would in fact be in the public interest for Ms Katsonis to hold a security licence. Tribunal's findings on "Not in the Public Interest" Not in the public Interest 1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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." 1. 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 (at page 681). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith. 2. When considering licensing matters it is to keep in mind the activities that the person will be engaged in if the licence is retained. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6. 3. The Tribunal notes Ms Katsonis' clear distress at having her security licence revoked. Public interest requires however that the interests of the whole community must be considered. 4. The Respondent submitted appropriately that it is in the public interest that persons thought by police to present a public safety or criminal risk are not given special access to premises, persons or goods under the security licensing system. Further the public should not be exposed to security officers who, for whatever reason, are incapable of undertaking their responsibilities in a professional manner and curbing their anger and impulse to inflict harm on others. 5. The references provided to the Local Court and the comments of the Magistrate indicate that Ms Katsonis is not a public safety or criminal risk in the future. Ms Katsonis has on one (reported) occasion failed to take her responsibilities in a professional manner and failed to curb her anger, inflicting harm on her victim. The comments of the Magistrate, referees and Ms Katsonis herself indicate that Ms Katsonis is likely to act in a professional manner and not strike out in the future. Ms Katsonis has had 18 months since the offence by the time of the Tribunal's hearing to reflect on these professional responsibilities. 6. The Tribunal considered whether the public's confidence in the licensing system would be undermined by Ms Katsonis holding a licence in the circumstances set out. The Tribunal considered that the views of Ms Katsonis' referees, the Local Court Magistrate and the District Court judge express confidence that Ms Katsonis does not present a risk to public safety. 7. No authority was put to the Tribunal for the proposition that being on a Good Behaviour Bond while being licensed to work as a security officer was contrary to the public interest. 8. In all the circumstances the Tribunal is not satisfied that it is not in the public interest for Ms Katsonis to hold a security licence. Order 1. The decision under review to revoke Ms Katsonis' licence is set aside. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 22 March 2018