Colangelo v Commissioner for Consumer Affairs - [2017] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLANGELO v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 125
Judgment of His Honour Auxiliary Judge Clayton
13 November 2017
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against a decision of the Commissioner for Consumer Affairs refusing the appellant's application for a security agents license under the Security and Investigation Industry Act 1995 - whether cogent reasons to depart from the delegate's decision - whether the delegate erred in finding appellant was not a 'fit and proper person'.
Held: The delegate erred in finding that a fine of $1200 pursuant to s 18A of the Criminal Law (Sentencing) Act in respect of four offences against the firearms legislation was a conviction of a category B offence for which the penalty imposed for the offence included a fine of or greater than $500.
Additional evidence provided on the appeal established that the appellant was a fit and proper person to hold a security agents license. Cogent reasons to depart from the decision maker's decision established. Appeal allowed.
Security and Investigation Industry Act 1995 s 3(2), s 9, s 11, s 33; Security and Investigation Industry Regulations reg 6; District Court Act s 42B(1), s 42E, s 42E(3); Firearms Regulations 1990 s 22(1), 41(1); Criminal Law (Sentencing) Act 1988 s 18A; Vougamalis v Commissioner for Consumer Affairs [2012] SADC 98; Cloros v Commissioner for Consumer Affairs [2009] SADC 22; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Russell v Commissioner for Consumer Affairs [2014] SADC 1, referred to.

COLANGELO v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 125

The appellant applied for a security agents licence under the Security and Investigation Industry Act 1995 (‘the Act’). The delegate of the Commissioner for Consumer Affairs (“the Commissioner”) delivered reasons for decision dated 4 January 2017 in which she decided that the application should be refused. The appellant has appealed to this court from that decision pursuant to s 11 of the Act.
Section 9 of the Act provides that a natural person is eligible to be granted a licence if that person satisfies the Commissioner that, amongst other things he is a fit and proper person to be the holder of the licence. Whether a person is a fit and proper person to be the holder of a licence is to be determined by reference to s 3(2) of the Act which provides:
(2)For the purposes of this Act, the following provisions govern whether a person is a fit and proper person to hold a licence or to be the director of a body corporate that holds a licence:
(a)a person is not a fit and proper person to hold a licence or to be the director of a body corporate that holds a licence if—
(i)the person has been found guilty or convicted of an offence as prescribed by the regulations; or
(ii)the person is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth;
(b)in deciding whether a person is a fit and proper person to hold an investigation agents licence, or to be the director of a body corporate that is the holder of an investigation agents licence, regard may be had to—
(i)the reputation, honesty and integrity of the person; and
(ii)any other factor relevant to the performance of the functions authorised or to be authorised by the licence, including any relevant offence (not prescribed by the regulations) of which the person has been convicted or found guilty;
(c)in deciding whether a person is a fit and proper person to hold a security agents licence, or to be the director of a body corporate that is the holder of a security agents licence, regard must be had to—
(i)the reputation, honesty and integrity of the person; and
(ii)the reputation, honesty and integrity of people with whom the person associates; and
(iii)if the licence authorises or is to authorise the licensee to personally perform the function of controlling crowds—
(A)the results of any psychological assessment of the person under this Act; and
(B)any evidence that the person has contravened a provision of the Gaming Machines Act 1992 or the Liquor Licensing Act 1997 relating to the prevention of a person from entering, or the removal of a person from, licensed premises (within the meaning of the Liquor Licensing Act 1997); and
(iv)any other factor relevant to the performance of the functions authorised or to be authorised by the licence, including any relevant offence (not prescribed by the regulations) of which the person has been convicted or found guilty;
Regulation 6 of the Security and Investigation Industry Regulations sets out the prescribed offences for the purpose of s 9 of the Act. It provides:
6—Classes of offences (sections 3, 9, 23, 23A, 23B and 23G of Act)
(1)For the purposes of sections 3(2)(a)(i) and 23 of the Act, the following is prescribed:
…
(e)the person has been convicted of a category B offence within the preceding 10 years and the penalty imposed for the offence included a fine of or greater than $500, detention or imprisonment.
A category B offence is defined to mean an offence against the Firearms Act 1977 other than an offence against section 15C, 18, 21A, 21AB or 26 of that Act.
On 8 April 2014 the appellant was convicted of offences against the Firearms Act and Firearms Regulations.
After lodging his application for the security agent licence the appellant was advised that offences that he had been convicted of disentitled him from obtaining the licence. He sought an exemption under s 33 of the Act which was considered by the Acting Commissioner and refused. The delegate for the Commissioner then decided that the appellant’s application for a licence must be refused by reason of the failure of the appellant to obtain an exemption.
In addition, the delegate for the Commissioner said that convictions for common assault in 1991 and receiving in 1990 indicated behaviour that would be inappropriate for someone working in the security industry. She also referred to convictions for ‘numerous traffic-related offences including driving while under disqualification and driving with an altered registration label indicating a lack of regard for licensing laws and Regulations’.
The delegate noted that the appellant had failed to disclose all of his offence history as required on the security licence application form and the Personal Information Declaration form. In particular she referred to ‘his failure to disclose all of his recent firearms offences which would disentitled him from holding a security agent licence’. She said that was relevant as it raised concerns about his honesty and integrity and that the behaviour displayed in the incidents was not acceptable for a security agent and that to grant the licence would be contrary to public interest.
She was not satisfied that the appellant was a fit and proper person to be licenced as a security agent.
She recorded that she had considered information provided by the South Australia police and the appellant’s counsel and referred to the purpose of the Act and the need to maintain public confidence in both the industry and the licensing scheme.
This appeal was heard by the District Court pursuant to s 42E of the District Court Act 1991 which directs that the court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.[1] Section 42B(1) permits the court to allow further evidence or material to be presented on the appeal. Both of the parties availed themselves of that provision.
[1] Section 42E(3).
The issues raised by the appeal are:
1Whether the Commissioner erred in finding that the appellant had been convicted of a prescribed offence which by itself required the application to be refused.
2Whether the Commissioner erred in finding that the appellant was not a fit and proper person to hold a security agents licence and that it would be against the public interest to grant him a licence.
Section 3(2)(a) - Has the appellant been convicted of a prescribed offence
On 8 May 2014 the appellant was convicted in the Adelaide Magistrates Court of three counts of failing to comply with the condition of a firearm dealers licence contrary to regulation 22 (1) of the Firearms Regulations 1990 and one count of failing to store ammunition separately from firearms contrary to regulation 41(1) of the Firearms Regulations 1990. The magistrate who dealt with those offences under s 18A of the Criminal Law (Sentencing) Act 1988 imposed a single penalty of a fine of $1200.
Counsel for the respondent submitted that offences against the Firearms Regulations of which the appellant was convicted are prescribed offences for the purpose of regulation 6. She referred to Vougamalis v Commissioner for Consumer Affairs,[2] where His Honour Judge Costello concluded that the reference to the Firearms Act in the Security and Investigation Industry Act included the Firearms Regulations. I respectfully follow the decision of His Honour and find that the offences of which the appellant was convicted are prescribed offences for the purpose of regulation 6.
[2] [2012] SADC 98.
The delegate of the Commissioner had proceeded on the basis that the fine of $1200 for the four offences gave rise to a category B offence for which the penalty imposed included a fine of greater than $500 as prescribed by regulation 6.
Counsel for the appellant argued that while the appellant had been convicted of four category B offences he did not receive an individual penalty with respect to each single offence but pursuant to s 18A of the Criminal Law (Sentencing) Act received one penalty of $1200 for all four offences so that in each case no penalty was ‘imposed for the offence’. She submitted that the Regulations were not intended to encompass situations where s 18A is employed and that the prepositional phrase ‘for the offence’ should be given a narrow meaning which required a direct relationship between the penalty and one offence alone and not only some connection or relation between the penalty and the offence.
Counsel for the respondent submitted that given that s 18A enables the court to impose one penalty for a number of offences the penalty imposed applies to each offence. She argued that in the appellant's case the single fine of $1200 applied to each of the four offences for which he was sentenced and that for the purpose of determining whether the offences were prescribed under regulation 6 of the Regulations the penalty to have regard to is the fine of $1200, which is greater than $500. I reject the argument that the penalty imposed applies to each offence. I accept the Appellant’s argument.
Omitting irrelevant words regulation 6, which sets out the prescribed offences for the purpose of s 9 of the Act, refers to the situation where ‘the person has been convicted of a category B offence within the preceding 10 years and the penalty imposed for the offence included a fine of or greater than $500’ (my underlining).
Counsel for the Appellant submitted that the intent of the Act and Regulations is to only automatically disentitle persons from being fit and proper to hold a security licence if they commit certain offences, otherwise their applications are to be considered on their own merits. She submitted that even then very minor examples of offences, in particular category B offences, are not intended to automatically disentitle a person from being considered fit and proper. She submitted that interpreting the Regulations such that any category B offence could become a prescribed offence through the use of s 18A would undermine that purpose because it would result in automatic disqualification on account of the commission of a prescribed offence alone. She referred to Cloros v Commissioner for Consumer Affairs.[3] I accept that argument.
[3] [2009 ] SADC 22 [29].
I find that there was no fine of or greater than $500 for any of the individual four offences and that the delegate fell into error when she found that the application for a license should be refused for this reason alone.
However this finding does not resolve the appeal because the delegate was not satisfied that the appellant was a fit and proper person to be licensed as a security agent.
Was the appellant a fit and proper person
As I have mentioned s 3 (2) of the Act provides that in determining whether a person is a fit and proper person to hold a licence regard must be had amongst other things to ‘the reputation, honesty and integrity of the person’.
I accept the submission of Counsel for the respondent that it is for the appellant to establish that he is a fit and proper person to hold the licence which he seeks. In that context, the appellant’s prior offences are important. Sobey v Commercial and Private Agents Board.[4]
[4] (1979) 22 SASR 70, [76].
I also accept the submission of Counsel for the respondent that the issue for determination in this appeal is whether there are cogent reasons for departing from the decision maker’s conclusion that the applicant failed to discharge the onus. Russell v Commissioner for Consumer Affairs.[5]
[5] [2014] SADC 1, [40].
In Russell, His Honour Judge Millsteed heard an appeal which was in many respects similar to the present. His Honour found that Mr Russell had not discharged the onus of establishing that he was a fit and proper person and there was no cogent reason to allow the appeal. In Russell Judge Millsteed accepted the respondent’s submission that Mr Russell’s previous offending reflected a disregard for the law and showed a poor attitude to the police as well as a problem with alcohol. Relevantly His Honour regarded the appellant’s failure to declare his full criminal history a substantial difficulty and he accepted the submission of the Commissioner that Mr Russell’s failure to mention offences was because he hoped that his declaration might not be investigated. In my opinion the present appeal can be distinguished on the facts. The appellant’s criminal history was not as significant as Mr Russell’s and the Appellant’s omission to comprehensively list his convictions was not as significant as in Russell.
I do not regard the convictions for common assault in 1991, receiving in 1990 and the traffic related offences as a reason for finding that the appellant was not a fit and proper person. It is significant that 25 years have passed since the assault and receiving convictions and that since those convictions the appellant has not been convicted of similar offences.
The finding of the delegate that the appellant failed to disclose all of his offence history on the licence application form is on its face significant. It is clear that what was disclosed on the form was not a comprehensive statement of the appellant's history. However I have had the benefit of an affidavit of the appellant sworn 26 October 2017, which contains information not before the delegate.
The appellant has sworn that he did not attempt to conceal or deliberately omit details of other previous offences and that when completing the form he did not refer to additional counts of failing to comply with a condition of his dealers licence because those offences were of similar nature and he assumed that the Commissioner would seek a National Police History check which would provide the information. He said he did not refer to the charge of failing to store ammunition separately from firearms because he relied on the same assumption. Additionally he swore that he was of the belief that the charge of failing to store ammunition separately from the firearms fell under the same type of offence as failing to comply with the condition of the dealer’s licence. He was aware that the Commissioner would undertake independent enquiries regarding his history.
I think there is merit in what the appellant has said. Initially I regarded the omission to disclose all of the offending as a reason for disallowing the appeal. However after considering the contents of the appellant’s affidavit I accept that it was reasonable for him to assume that the Commissioner would conduct a police check which would inevitably disclose the full picture. In fact that is what happened. I have come to the conclusion that what was disclosed, although not comprehensive, was in the circumstances of this case sufficient to put the Commissioner on notice that the appellant had a history of non-compliance with the firearms legislation which required investigation.
I accept the submission that the conviction for the firearms offences is not itself a bar to holding a security agent’s licence. In Cloros His Honour Judge Tilmouth said that it is to the facts and circumstances underlying the offence to which attention must be directed before an informed decision can be made as to whether a person is ‘fit and proper’ to hold a licence. Cloros v Commissioner for Consumer Affairs.[6] The respondent failed to consider those circumstances and considered only the nature of the offences. I accept Counsel’s submission that amounted to an error in the decision-making process.[7]
[6] [2009] SADC 27.
[7] Ibid [27], [29]-[36].
In his affidavit the appellant has set out the circumstances in which his prior offences were committed. As I have mentioned I do not regard the offences committed over 20 years ago as being significant; however the appellant has explained the circumstances in which those offences were committed. As to the offences in respect of which the magistrate imposed the fine of $1200 pursuant to s 18A the appellant has referred to the sentencing remarks of the magistrate and to the circumstances in which that offending occurred.
At all material times the appellant held a gun dealers licence. Count 1 concerned his sale of a firearm to a member of the public at the appellant’s home address. That breached a condition of his license which permitted the appellant to sell weapons only from his business premises. Count 2 related to the appellant’s failure to properly label 15 firearms out of a larger group of 271 firearms. Count 3 concerned eight weapons stored at his home address rather than the business address. Those weapons were properly secured. Count 4 related to ammunition found at the appellant’s home address which was not secured separately from firearms
I will not recite all the matters referred to by the appellant other than to record that I accept that the offences came about because the appellant had been required to vacate the premises from which he had formerly been trading and that resulted in him conducting his business from his home.
The Act and Regulations establish an important regime for the control of firearms and any breach must be treated seriously. However I am satisfied that there was nothing sinister underlying the offending but that it was an administrative reaction to circumstances which the appellant did not handle appropriately.
A matter which is significant is the fact that since the convictions were imposed the appellant has had personal and dealers firearms licences reissued by the delegate of the Registrar of Firearms who was required to make a decision as to the appellant’s fitness and propriety to hold such licences. I note that the delegate of the Registrar of Firearms took into account the appellant's convictions and was still satisfied that he was a fit and proper person to hold licences.

It would be an anomaly if the appellant was able to hold a license or permit under the firearms legislation but could not hold a security agents licence because of breaches of the firearms legislation.
Having regard to the additional material which the appellant has placed before the court I accept counsel’s submission that the appellant’s failure to disclose does not give rise to any concerns about his honesty or integrity. I find that the additional material placed before the court on the hearing of the appeal establishes that the appellant is a fit and proper person and there is cogent reason to allow the appeal.
The appeal will be allowed. I will hear counsel as to the form of the order of the court.