Commissioner for Consumer Affairs v Aldgate - [2008] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER FOR CONSUMER AFFAIRS v ALDGATE
[2008] SADC 39
Judgment of Her Honour Judge Cole
17 April 2008
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 the charge of knowingly producing cannabis - appropriate disciplinary action discussed - respondent's circumstances discussed - order that respondent's licence be cancelled.
Security and Investigation Agents Act 1995; Controlled Substances Act 1984, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Commissioner for Consumer Affairs v Jurjevic [2006] SADC 65; Commissioner for Consumer Affairs v Leonello [2005] SADC 134; Commissioner for Consumer Affairs v Sangster [2005] SADC 157, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v ALDGATE
[2008] SADC 39

The Commissioner for Consumer Affairs (“the Commissioner”) has brought disciplinary action against Matthew Aldgate (“the defendant”) pursuant to s 26 of the Security and Investigation Agents Act 1995 (“the Act”). The charges are as follows:
1. Events have occurred such that the defendant would not be entitled to be granted a licence if he were to apply for one.
Sections 25(1)(e)(ii) and 9(1)(b) of the Security and Investigation Agents Act 1995
Particulars
1.1At all material times the defendant has held a security and investigation agents licence, ISL 184343 limited to “security agent - restricted to guard work as an employee, crowd control work as an employee and canine handling as an employee”.
1.2The defendant has been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence.
1.2.1On 8 March 2007 the defendant was convicted of the offence of Producing a Controlled Substance contrary to s 32 of the Controlled Substances Act 1984.
1.2.2The offence referred to in paragraph 1.2.1 was not a simple cannabis offence within the meaning of section 45A of Controlled Substances Act 1984.
2. Events have occurred such that the defendant would not be entitled to be granted the licence if he were to apply for one.
Section 25(1)(e)(ii) and 9(1)(d) of the Security and Investigation Agents Act 1995.
Particulars
2.1By reason of the matters particularised in ground 1 of this complaint, the defendant is not a fit and proper person to hold a licence under the Security and Investigation Agents Act 1995.
The Act provides, in s 25(1)(e)(ii):
25. (1) There is proper cause for disciplinary action against an agent if -
…
(e)in the case of a person licensed as an agent -
…
(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.
The Act provides, in s 9(1)(b) and (d):
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 the licence.
The defendant is the holder of security agents licence ISL 184343 which authorises him, pursuant to the Act, to undertake guard work as an employee, crowd control work as an employee and canine handing as an employee. The defendant was employed by Chubb Security Personnel (“Chubb”) as a casual security officer in October 2004. He was subsequently made a permanent part time employee. He gave evidence that he presently undertakes security guard duties at the Royal Adelaide Hospital.
On 8 March 2007, the defendant was convicted in the Magistrates Court of the charge of knowingly producing a prohibited substance, namely cannabis, in contravention of s 32(1)A of the Controlled Substances Act 1984. The offence was committed on 8 July 2005, when the defendant was living in a house in North Plympton. The police entered that property pursuant to a search warrant and discovered hydroponic growing apparatus in the shed in the rear yard. The defendant had been growing cannabis plants in the shed. Fifteen cannabis plants were found. The defendant admitted that he had been growing the cannabis plants, and said that they were for his own use. The defendant was convicted and placed on a bond to be of good behaviour for 2 years and fined $500. The defendant was working as a security guard, for Chubb, at the time that he committed the offence.
It is clear that, were the defendant not the holder of a licence, and were the defendant now to apply for a licence, he would not be entitled to be granted a licence because of the operation of s 9(1)(b).
Certain amendments to the Security and Investigations Agents Act 1995 came into effect on 8 December 2005, five months after the commission of the offence. Had those amendments been in operation on the date of the commission of the offence, cancellation of the defendant’s licence would have been automatic pursuant to s 23G of the Security and Investigation Agents Act 1995. However, the amendments do not apply to this matter, and I have not had regard to them.
It was not contested that there is proper cause for the taking of disciplinary action in this matter. The only issue between the parties was the form of disciplinary action which it is appropriate to take.
The Act provides, in s 29, for the disciplinary action which may be taken by the Court in relation to the defendant:
29 - Disciplinary action
(1)    On the hearing of a complaint, the Court may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by order do one or more of the following:
(a)reprimand the person;
(b)impose a fine not exceeding $20,000 on the person;
(c)in the case of a person who is licensed as an agent—
(i)impose conditions or further conditions on the licence;
(ii)suspend the licence for a specified period or until the fulfilment of stipulated conditions or until further order;
(iii)cancel the licence;
(d)disqualify the person from holding a licence or a licence of a specified class under this Act or prohibit the person from carrying on business as an agent or as an agent of a specified class;
(e)prohibit the person from being employed or otherwise performing functions as an agent or as an agent of a specified class;
(f)prohibit the person from being a director of a body corporate that is an agent or an agent of a specified class.
(2)    The Court may—
(a)stipulate that a disqualification or prohibition is to apply—
(i)permanently; or
(ii)for a specified period; or
(iii)until the fulfilment of stipulated conditions; or
(iv)until further order;
(b)stipulate that an order relating to a person is to have effect at a specified future time.
(3)    A condition imposed by the Court under this section may require the person to satisfactorily complete a specified course of training within a specified period.
(4)    If -
(a)a person has been found guilty of an offence; and
(b)the circumstances of the offence form, in whole or in part, the subject matter of the complaint,
the person is not liable to a fine under this section in respect of conduct giving rise to the offence.
Ms Leverenz, who appeared for the complainant, sought the cancellation of the defendant’s licence. Mr Hill, who appeared for the defendant, argued that a lesser measure was appropriate.
The defendant gave evidence. He said that he began to smoke marijuana in 2005, after his father was diagnosed with cancer, to relieve his distress concerning his father’s deteriorating condition. He became addicted and started to grow marijuana for his own use. He said that he stopped smoking marijuana when he went to Court after being charged. He said that that experience was a “wake-up” for him. He said that he does not intend to smoke marijuana again. He said that if he saw someone smoking marijuana in his capacity as a security guard, he would report it (presumably to the police). The defendant rents a house with his brother. His rent is $150 per week. He has a car loan which costs him $60 per week. His employment with Chubb gives him an average of 50 hours per week of work. He has no dependents. He presently has no other source of income. He described his duties as including “lock up and lock down”, answering telephones, and dealing with patients under the Mental Health Act. A reference was produced from his employer, describing him as “a punctual and reliable employee” who “has the capacity to work with minimal supervision”. There was no indication of whether the employer was aware of the conviction. A letter sent to the Commissioner on the defendant’s behalf, which formed part of the exhibit P1, indicated that Chubb had previously stationed him at the Noarlunga Hospital and Channel 10.
It is clear from the case law that the purpose of the disciplinary provisions of the Act is the protection of the public, rather than the punishment of the defendant. The law was stated by Doyle CJ in Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145 at 147 and 148:
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.
I infer from the provisions relating to the grant of a licence, and from the provisions relating to disciplinary action, that the purpose of disciplinary proceedings is once again the protection of the public by imposing a penalty, by exercising particular controls over a licence holder, or by depriving a licence holder of a licence temporarily or indefinitely, having regard to the occurrence in question and to the nature of the cause for the taking of disciplinary action.
…Although the consequences of the making of an order may appear to operate as a punishment for Mr Sollars, it needs to be understood that the order itself is not punitive in character, nor is the decision as to the order to be made to be reached by reference to considerations relevant to the sentencing of an offender.
It is also clear from the case law that the starting point in relation to disciplinary action following a conviction for an offence of a class specified by regulation is that the licence should be cancelled unless exceptional circumstances exist which indicate that some lesser disciplinary action is appropriate (see Commissioner for Consumer Affairs v Jurjevic [2006] SADC 65, Commissioner for Consumer Affairs v Leonello [2005] SADC 134 and Commissioner for Consumer Affairs v Sangster [2005] SADC 157). Good conduct on the part of the defendant, subsequent to his conviction and prior to the hearing of the disciplinary action, does not weigh heavily in this assessment (Commissioner for Consumer Affairs v Sollars). I do not overlook the second disciplinary charge in this matter, which alleges that the defendant is not a “fit and proper person” within the meaning of s 9(d), but as the facts relied on for that allegation are the same as those in relation to the first charge, the same issues arise.
I take into account all of the defendant’s evidence, and the submissions made on his behalf. The defendant appeared to be sincere in his intention not to use cannabis again. However, this is a topic in relation to which the complainant is unlikely to be able to call evidence to contradict the defendant. In his employment, the defendant is in contact with vulnerable people.
The Security and Investigation Agents Act 1995 imposes a very tough regime in relation to the conduct of licensed security guards. I am unable to identify any circumstances which would take this matter away from the starting point that the licence should be cancelled. Notwithstanding that, having regard to the serious, adverse effect that cancellation will have upon the defendant, I have given consideration as to whether any further conditions could be placed upon his licence to enable him to continue in the security industry, whilst still conforming with the intention of the Act. I have concluded that the conditions required would be so limiting as to render the licence effectively useless in any case. They would also be impracticable to enforce.
It is the order of this Court that the defendant’s licence, ISL 184343 is cancelled. Further, the defendant must return his licence ISL 184343 to the Commissioner for Consumer Affairs as expeditiously as possible.