Cloros v Commissioner for Consumer Affairs - [2010] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS
[2010] SADC 4
Judgment of His Honour Judge Chivell
21 January 2010
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against respondents refusal to grant security agents licence; previous cancellation of licence pursuant to s 23G following plea of guilty to offence of dishonesty; fresh application shortly after automatic cancellation; whether appellant is fit and proper person to hold a licence; appeal dismissed.
Security and Investigation Agents Act 1995 (SA) s 11, 23A(1)(a), 23G, s 11(1), clause 1(2)(c), s 9(1)(b), s 9(2)(b)(i); Criminal Law Consolidation Act 1935 (SA) s 134; Second Hand Dealers and Pawnbrokers Act 1996 (SA) s 20(2); Security and Investigation Agents Regulations 1996 Schedule 1A, clause 3(b)(iv); Mental Health Act 1993 (SA) s 23; District Court Act 1991 (SA) s 42F, s 42E; Criminal Law (Sentencing) Act 1988 (SA) s 39, referred to.
Cloros v Commissioner for Consumer Affairs [2008] SADC 88; Cloros v Commissioner for Consumer Affairs [2009] SADC 22; R v Carroll (2002) 213 CLR 635; Rogers v R (1994) 181 CLR 251; R v McGee and McGee (2008) 102 SASR 318; Sobey v Commercial Agents Board (1979) 22 SASR 70, considered.

CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS
[2010] SADC 4

This is an appeal pursuant to s 11 of the Security and Investigation Agents Act 1995 (SA) (“the Act”) against the refusal by the respondent of the appellant’s application for a security agents licence. The decision to refuse was made on 16 September 2009.
The history of the appeal is rather long and complex. I will set out the salient points:
•Mr Cloros was granted a security agents licence on 16 August 2000;
•the licence was later extended to crowd control work, and later again to entitle him to carry on business as a sole trader;
•in August 2007, Mr Cloros was charged with one count of dishonestly dealing with the property of another (Criminal Law Consolidation Act, s 134), and four counts of providing false information (Second Hand Dealers and Pawnbrokers Act, s 20(2));
•the offences were alleged to have been committed between April and June 2006. It alleged that Mr Cloros had rented various pieces of equipment such as hand-held radios, microphones and chargers and the like from a firm called Tetracom Pty Ltd, and he then pledged these items as credit for loans at Cash Converters. On each of four occasions, he falsely declared that “I am the owner of the goods, and the goods are not subject to any encumbrance or third party claim of any kind including, but not limited to, hire purchase, lease, rental contract, finance contract, lien…”;
•because the dishonest dealing charge is “an offence of a class specified by regulation” (see s 23A(1)(a) of the Act and clause 1(2)(c) of the Regulations), the respondent exercised his power to suspend Mr Cloros’ licence;
•the Certificate of Record from the Adelaide Magistrates Court records that, on 6 May 2008, Mr Cloros pleaded “guilty” to all five of the charges referred to above. The Magistrate, Mr W.J. Ackland SM, did not record a conviction, and released Mr Cloros upon him entering a bond to be of good behaviour for two years, and to come up for conviction and sentence if called upon;
•because Mr Cloros was “found guilty” by his plea to the dishonest dealing charge, and because that is “an offence of a class specified by Schedule 1A, clause 3(b)(iv) of the Regulations, in relation to the functions authorised by the licence”, s 23G of the Act operated to cancel Mr Cloros’ licence automatically;
•Mr Cloros appealed against the cancellation, but the appeal was dismissed by Judge Cole in this Court on 9 July 2008[1]. Her Honour held that the appeal was incompetent because there is no right of appeal from a cancellation pursuant to s 23G;
[1]    Cloros v Commissioner for Consumer Affairs [2008] SADC 88.
•on 15 July 2008, Mr Cloros lodged a fresh application for a security agents licence. The Commissioner of Police lodged an objection dated 7 August 2008 pursuant to s 8A of the Act on the grounds that Mr Cloros was not a fit and proper person to hold a security agents licence. The objection cited:
•       the outcome of the Court hearings on 6 May 2008,
and
• the fact that on 9 November 2007 Mr Cloros was detained under s 23 of the Mental Health Act “in relation to threats he made during a ‘000’ call”;
As to the second ground, the Police Ancillary Report attached to the objection records that Mr Cloros had called ‘000’ and threatened to hang himself. During the course of the call he referred to the suspension of his security agents licence;
•on 1 September 2008, the respondent refused the application, giving reasons which referred to the finding of guilt of the five offences referred to above, and to the fact that in his submissions to the Commissioner, he did not accept that his actions in committing the offences were wrong (see affidavit of Graham Close, exhibit GC-13);
•Mr Cloros appealed to this Court from that decision. Judge Tilmouth allowed the appeal and remitted the matter to the respondent for reconsideration pursuant to s 42F of the District Court Act 1991 (SA)[2];
•the respondent reconsidered Mr Cloros’ application, and gave him a further opportunity to make submissions on his own behalf. He did so, and the effect of his submissions was that he should not have been charged with the offences, he was not guilty of them, and that he did no wrong (Close affidavit, exhibit GC-16);
•the respondent again refused Mr Cloros’ application, and gave reasons which were somewhat more extensive than previously. The Commissioner noted that Mr Cloros had pleaded “guilty” to the offences, but that he continued to deny his guilt of them. In effect, the respondent indicated that the nature of the offences reflected on Mr Cloros’ honesty and integrity, as did his “inability” or “unwillingness” to accept the wrongfulness of his behaviour (Close affidavit, exhibit GC‑20). The respondent stated:
In view of the nature of the offences, the objection raised by the Commissioner for Police and taking into account the information provided in the applicant’s submissions, I am not satisfied that Mr Cloros is a fit and proper person to be licensed under the Act at this time. I have also taken into account the purpose of the Security and Investigation Agents Act and the need to maintain the public confidence in both the industry and the licensing scheme.
•Mr Cloros has now appealed from that refusal, and that appeal is now before me.
[2]    Cloros v Commissioner for Consumer Affairs [2009] SADC 22.
The appeal
The right of appeal to this Court is created by s 11(1) of the Act. Section 42E of the District Court Act provides:
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
The grounds of appeal are rambling and discursive. To summarize, they are:
•Mr Cloros has the qualifications and experience necessary – the contrary was not argued by the respondent;
•he is not insolvent – again his financial position was not raised by the respondent;
•he did not commit any offence while working for another, or working on a client’s premises – the contrary was not suggested by the respondent (Notice of Appeal, page 3);
On page 2 of the Notice, two further grounds emerge:
•“section 9(1)(b) and 9(2)(b)(i) [of the Act] don’t apply to me because there were no convictions recorded against me and nor have I committed offences which I have receipts for”;
•“I shouldn’t have to take responsibility for actions when they weren’t hired goods and I have receipts for as to honesty and integrity 9A when I have got nothing to answer for and no cases pending in the courts”.
Mr Cloros expanded upon these grounds at the hearing of the appeal. He described the dishonest dealing charge as a “civil issue” (T2). He said the offence was “inadvertently committed” (T3). There was no offence committed on his clients’ premises (T5). The offences were committed “unintentionally” in that:
I went to go and get them back. I did not default on the loan…but I went to go and pay it back and they sold it… (T7)
Mr Cloros refused to accept that the dishonesty lay in pledging the goods which were the property of another, and which he was renting, as security for a loan.
I cannot go behind the fact that a finding of guilt of a criminal offence, one element of which is a dishonest intention, is incontrovertible unless set aside or quashed (R v Carroll[3], Rogers v R[4], R v McGee and McGee[5]).
[3] (2002) 213 CLR 635
[4] (1994) 181 CLR 251
[5] (2008) 102 SASR 318 at 340
An assertion by Mr Cloros that he committed the offence unintentionally, or inadvertently, is inconsistent with that finding of guilt and I reject it.
Mr Cloros is still repaying the owner of the goods the money they lost as a result of the offences, more than $4,800.00. He has repaid the $275.00 to Cash Converters as ordered by Mr Ackland SM on 6 May 2008. Mr Cloros continues to refer to these debts as “civil” issues.
Like the respondent, I find Mr Cloros’ attitude to this offending almost as significant as the offending itself. My discussion with Mr Cloros during the hearing of the appeal left me with the definite impression that his denials of culpability are disingenuous, and reflect a lack of contrition, indeed, a lack of acceptance of responsibility for the offending. I cannot have any confidence that he will not engage in similar behaviour in future.
I acknowledge that in his Outline of Argument Mr Cloros does seem to acknowledge his guilt. He refers to his “mistaken” belief that it was not wrong to do what he did, that it was “wrong” to commit the offence and that he is “very sorry” that he committed it. However, at the hearing of the appeal, he reverted to his earlier position.
Fit and proper person
In Sobey v Commercial Agents Board[6], Walters J outlined the issues to be considered in this context as follows:
The issue whether an appellant has shown himself to be ‘a fit and proper person’, within the meaning of s. 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, 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, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf. Ex parte Meagher (1919) 19 S.R. (N.S.W.) 433, at p. 442).
[6] (1979) 22 SASR 70 at p 76
I note that Judge Tilmouth held that the respondent, in considering this question, should have looked beyond the mere fact of the commission of the offences, and should have examined whether the offences were trifling, or committed under extenuating circumstances[7]. It is not possible now to ascertain what Mr Ackland SM regarded as good reason, within the meaning of s 39 of the Sentencing Act 1988 (SA), for discharging Mr Cloros without conviction upon entering a bond. No record of His Honour’s reasons for sentence is now available. These were serious offences and the penalty imposed was very merciful. From the evidence before me on the appeal, it appears that Mr Cloros had not committed any serious offences previously.
[7] Cloros v Commissioner for Consumer Affairs [2009] SADC 22, [27-28]
I cannot see, on any view of the facts, that the commission of these offences could have been regarded as trifling. As to whether there were extenuating circumstances, the onus in on Mr Cloros to demonstrate that. All he has done is to continue to assert that the commission of the offences was unintentional, which I must reject. The only extenuating circumstance, which I think is of relatively slight weight, that arises from what he has put forward is that when he pawned the goods, he intended to repay the advance, and did not intend that the pawnbroker would sell the goods.
Mr Cloros produced a report dated 6 March 2009 by Mr Mark Reid, a neuro-psychologist. Mr Reid records that Mr Cloros told him:
In 2007 there was some form of police accusation against him for alleged theft and this was heard in Adelaide Magistrates Court. He told me the accusation was withdrawn and there was no conviction, and he complained to the Police Complaints Authority about this inappropriate charge, but he told me nothing came of this. Unfortunately his security licence was taken away from him which he maintains should not have occurred. (Page 2)
This appears to have been another example of Mr Cloros’ refusal to take responsibility for his behaviour, and the giving of an inaccurate and misleading account of the events to Mr Reid.
Mr Reid noted that Mr Cloros suffers from epilepsy, and this is effectively controlled with medication. On testing, Mr Reid noted a below-average intellectual level, and areas of weakness in his intellectual capacity, particularly his “ability to undertake various forms of conceptual thinking and reasoning”. He remarked upon Mr Cloros’ “poor arithmetic skills and apparent poor budgeting skills and financial management”, evidenced by the fact that he has no gas or electricity to his residence as a result of non-payment of accounts, and other significant debts.
Although these were not issues considered by the respondent to be relevant to whether Mr Cloros is a fit and proper person to hold a licence, I am entitled to have regard to them as to whether cogent reason exists to depart from the respondent’s decision or not.
In my view, although Mr Reid’s assessment may explain, to some extent, the illogicality and unreasonableness of Mr Cloros’ attitude to his offending, the fact remains that the offending involved serious dishonesty and, for whatever reason, Mr Cloros lacks insight into his behaviour, and that does not inspire confidence in the future.
Section 42E of the District Court Act requires that I should “give due weight to the decision being appealed against and the reasons for it, and not depart from the decision except for cogent reasons.”
I see no reason to depart from the decision of the respondent. I agree with it, for the reasons I have expressed. I think that this is a case where the words of Walters J in Sobey (supra, at p 75-6) are apposite:
But, in the present case, I think the appellant’s past conduct exposes an intrinsic defect of character which is incompatible with his being entrusted with a licence…The moral that he must learn is that he will have to demonstrate a greater respect for the law, before he can expect to obtain a licence under the Act. When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then be properly given to his subsequent good behaviour. In any case, however, the appellant bears the onus…of satisfying the Board of the existence of matters qualifying him for a licence.”
The appeal is dismissed.