Commission for Consumer Affairs v Wheaton
[2006] SADC 3
•27 January 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSION FOR CONSUMER AFFAIRS v WHEATON
Judgment of His Honour Judge Boylan, Assessor Hewitt and Assessor MacDonald
27 January 2006
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Complaint against respondent as holder of licence under Security and Investigation Agents Act 1995 - respondent convicted of producing cannabis and of various firearms offences - two of the offences were prescribed offences for the purposes of Section 9(1)(b) of the Act - complainant alleged proper cause for disciplinary action against the respondent by reason of those two offences - complaint also alleged proper cause for disciplinary action by reason of respondents not being a fit and proper person owing to the commission of all offences - consideration of the purposes of the Act - held there was proper cause for disciplinary action - order that the respondent's licence be cancelled.
Security and Investigations Agents Act 1995 s 9(1)(b) & (d), s 25(1)(e)(ii), s 29; Controlled Substances Act 1984 s32(1)(a), s 31A;; Firearms Act 1997 s 11, ; Firearms Regulations 1993 Reg. 29(2), 32(1), 53 and 45A8;; Security and Investigations Agents Regulations 1996 Schedule 1, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, considered.
COMMISSION FOR CONSUMER AFFAIRS v WHEATON
[2006] SADC 3
The defendant is the holder of a security agent’s licence. He has been convicted of a number of offences. On account of those convictions, the Commissioner for Consumer Affairs has laid a complaint alleging that there is proper cause for disciplinary action against the defendant. It is the Commissioner’s submission that the appropriate action is the cancellation of the defendant’s licence.
The defendant, who has been duly served, failed to appear on the hearing of the complaint before us. Accordingly, the court proceeded with the hearing of the complaint in his absence pursuant to Rule VI-31 of the District Court Administrative Appeals Rules.
The defendant has held a licence pursuant to the Security and Investigation Agents Act 1995since the 31st of March 1996. That licence restricts him to guard work, security systems work, crowd control work, canine handling, inquiry work and collection work. In each of those categories, he is restricted to working as an employee.
The Offences
On the 22nd of February 2002, police officers attended at and searched the defendant’s premises at Happy Valley. There, inside a toolshed, they found one large cannabis plant growing hydroponically. In a cellar underneath the floor of a garage, they found three larger cannabis plants being grown hydroponically. The hydroponic and watering set up was elaborate. In the garage, they also found some 240 grams of dried cannabis and some bullets. Inside the defendant’s house, the police officers found 40 grams of dried cannabis, an air pistol and a sawn off .22 rifle. The rifle was found in a laundry basket partly hidden by clothing. The air pistol was in the accused’s bedside cupboard together with an ammunition belt containing .22 bullets.
As a result of the search, the defendant was charged with the following offences:
(i)Knowingly producing a prohibited substance, namely, 4 cannabis plants contrary to Section 32(1)(a) of the Controlled Substances Act.
(ii)Knowingly having cannabis, a prohibited substance, in his possession contrary to Section 31(a) of the Controlled Substances Act.
(iii)Being in possession of a firearm, namely an air pistol, a class H firearm, while not being the holder of a firearms licence authorising possession of that firearm contrary to Section 11(1) of the Firearms Act 1977.
(iv)Being in possession of a prescribed firearm, namely, a sawn off .22 calibre rifle whilst not the holder of a firearms licence authorising possession of that firearm contrary to Section 11(1) of the Firearms Act 1977.
This is a minor indictable offence.
(v)Being a person who had possession of a Class H firearm failed to keep that firearm secured in accordance with Regulation 29(2) of the Firearms Regulations 1993, contrary to Regulations 29(2) and 53 of those Regulations.
(vi)Failing to store ammunition in a locked container separately from the firearms contrary to Regulations 32(1) and 53 of the Firearms Regulations 1993.
On the 8th of August 2002 in the Magistrates Court at Christies Beach, the defendant pleaded guilty to all six counts. Pursuant to Section 18A of the Sentencing Act, the learned Special Magistrate fined the defendant $700 and ordered that the cannabis, the firearms and the ammunition be forfeited to the Crown. The Magistrate sentenced the defendant on the basis that the cannabis was for his personal use to relieve back pain, that he had owned the air pistol for twenty years and had failed to renew his licence on account of expense, and that he had possession of the sawn off .22 rifle to put it in proper working order for its owner, a professional fisherman, but had not had time to do so before the police found it.
Cause for disciplinary action
Cause for disciplinary action is dealt with in Section 25(1) of the Security Investigation Agents Act 1995. That Section reads, where relevant, as follows:
“25(1) There is proper cause for disciplinary action against an agent if
…
(e) in the case of a person licensed as an agent –
(i) …
(ii)events have occurred such that the agent would not be entitled to be granted the licence if he or she were to apply for it.”
Entitlement to be licensed
Entitlement to be licensed as an agent pursuant to the Security Investigations Act 1995 is dealt with in Section 9 of the Act. That Section reads, where relevant, as follows:
“9. (1) A natural person is entitled to be granted a licence if
…
(b)the person has not been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence; and
…
(d) the person is a fit and proper person to be the holder of a licence.”
The Regulations
Schedule 1 of the Regulations pursuant to the Security and Investigation Agents Act deals with offences which will disentitle persons from being licensed agents.
Regulation 1 of that schedule, where relevant, reads as follows:
“1.(i)For the purposes of Section 9(1)(b), the following offences are prescribed in relation to any function to be authorised by a licence:
(a) an indictable offence”
…
(d) an offence against the Controlled Substances Act 1984 involving a prohibited substance of a drug of dependence, other than –
…
(ii)a simple cannabis offence within the meaning of Section 45A of that Act;
…”
At the relevant time a simple cannabis offence was defined by Section 45A(8) of the Controlled Substances Act:
“Simple cannabis offence means –
…
(d) An offence arising out of the cultivation of not more than the prescribed number of cannabis plants. “
At the time of the defendant’s offending, the prescribed number of cannabis plants was one. (See Regulation 249 of the Controlled Substances (Expiation of Simple Cannabis Offices) Regulations dated the 29th of November 2001.) Accordingly, the defendant’s offence of producing four cannabis plants was a prescribed offence for the purposes of Section 9(1)(b) of the Act. Similarly, the offence of possessing the sawn off .22 calibre rifle, being a minor indictable offence, was also prescribed for the purposes of Section 9(1)(b). Had the defendant applied for the grant of a licence now, he would be disentitled to the licence owing to the operation of that Section.
In the Commissioner’s submission, the defendant would also not now be entitled to a licence because, owing to the six convictions, he is not a fit and proper person to hold a licence.
Cause for Disciplinary Action
We are satisfied that there is proper cause for disciplinary action. That being the case, we must consider the orders available to us pursuant to Section 29 of the Act. Before turning to Section 29, we note that the purpose of disciplinary action is not to punish the defendant but to protect the public. See Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145 where Doyle CJ said at page 147:
“In my opinion the scheme of the Act is relevantly to protect the public by regulating who may engage in the activities for which a licence is required. The focus is on the protection of the public by requiring applicants to meet criteria directed to their qualifications, experience and fitness for the occupation.”
We also refer to the remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at page 75:
“I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and proprietary which is a prerequisite for the licence under the Act 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, either as a process server or a commercial sub-agent.”
Although His Honour was dealing with a slightly different situation and with an appeal pursuant to the predecessor to the Security and Investigation Agents Act 1995, His Honour’s words remain apposite.
We have considered the alternatives available under Section 29 of the Act. We have also borne in mind that, while the Commissioner would not now be able to grant a licence to the defendant were he to apply for one, we are not obliged to cancel his licence.
By virtue of his being the holder of a licence, the defendant works, among other things, as a crowd controller. This is the type of work which may well bring him into fairly close contact with people who may well be minded to use illegal drugs. It is also the sort of work which may well require the defendant to use some physical force in the exercise of his duties. In carrying out his duties in those circumstances, it is essential that the defendant is a person upon whom the public can rely as being a person of good repute. These offences are serious. The prescribed cannabis offence, while it is accepted that the purpose for it was personal use, is a planned and continuing offence against the criminal law. Firearm offences are especially serious. The firearms legislation exists for the safety of the community. The offence of possession of a .22 calibre sawn off rifle, is a serious breach of that legislation even in the circumstances which the learned Special Magistrate accepted obtained. In our view, the appropriate action is cancellation of the licence. We have not overlooked the fact, very fairly put to us by Ms Costi for the Commissioner, that the defendant requires his licence to earn some of his income. In our view, that is not a sufficient reason for not cancelling the licence.
The order of the court is that the defendant’s licence be cancelled.
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