Commissioner for Consumer Affairs v Gilmour - [2009] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of THE SECURITY AND INVESTIGATION AGENTS ACT 1995
COMMISSIONER FOR CONSUMER AFFAIRS v GILMOUR
[2009] SADC 135
Judgment of His Honour Judge Rice
2 December 2009
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Complainant alleges proper cause for disciplinary action against respondent for a 2004 conviction for producing cannabis in combination with a failure to report that conviction in annual returns in 2006 and 2007 - Proper cause for disciplinary action acknowledged - Reprimand plus suspension of security agent's licence for two years.
Security and Investigation Agents Act 1995 (SA) ss 9, 12(2), 25, 29 and 37; Controlled Substances Act 1984 (SA) ss 32(1)(a) and 45A, referred to.
Commissioner for Consumer Affairs v Tedesco [2005] SADC 79; Commissioner for Consumer Affairs v Leonello [2005] SADC 134; Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145 (para 15); Commissioner for Consumer Affairs v Standley (1998) 71 SASR 152 at 158, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v GILMOUR
[2009] SADC 135
Introduction

These are reasons for decision in relation to a complaint made by the Commissioner for Consumer Affairs (“the CCA”) against a licensed security agent, Michael John Gilmour. The CCA alleges that there is proper cause for disciplinary action against the respondent pursuant to ss 25(1)(e)(ii) and 25(1)(b) of the Security and Investigation Agents Act 1995 (SA) (“the Act”).
The respondent is the current holder of an individual security agent’s licence (ISL 147141) pursuant to the Act. His licence is endorsed for work functions of “investigation agent restricted to collection work…guard work [and] …crowd control work”. The respondent is also the director of the company “Extreme Security Services Pty Ltd” which currently holds a body corporate security agents licence (ISL 172127). Extreme Security Services employs approximately 20 people on a casual basis.
This complaint relates to the respondent being convicted of producing cannabis in the Adelaide Magistrates Court in 2004. This offence is a disentitling offence under the Act (s 25(1)(e)(ii)).
Further, the CCA alleges that the respondent acted contrary to the Act in the course of performing his functions as an agent by failing to disclose his criminal conviction on the annual return forms in 2006 and 2007 (s 25(1)(b)).
The respondent admits the allegations in full and accepts that there are proper grounds for disciplinary action arising from the producing cannabis conviction in combination with the failure to disclose that conviction in two separate annual returns.
Background
The criminal conviction (ground one of the Complaint)
On 2 November 2003, at Pasadena, the respondent knowingly produced four small cannabis plants, a prohibited substance, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA). This is a summary offence. He appeared unrepresented before Mr A.R. Newman SM and pleaded guilty. He was convicted on 27 July 2004 and fined $500.
In 2001, amendments to the Act removed the eligibility of people who have been convicted of certain criminal convictions, to hold security licences for a period of 10 years from the date of conviction. Section 9(1)(b) of the Act stipulates that a “natural person is entitled to be granted a licence if…the person has not been convicted of an offence of a class specified by regulation…”. By virtue of his 2004 conviction, the respondent would not be entitled to be granted a licence if he were to apply as the offence of producing cannabis is of the class specified by the regulations.
The false statement on the Personal Information Declaration (grounds two and three of the Complaint)
Pursuant to s 12(2) of the Act, a licensed agent must lodge a return with the CCA every year. Since 2001, these returns have included a Personal Declaration Form which asks questions relating to criminal charges, arrests, reports and expiation notices. The respondent failed to disclose his 2004 conviction for producing cannabis on this form, in particular on his 2006 and 2007 returns. Failure to disclose the conviction for producing cannabis amounts to a false and misleading statement contrary to s 37 of the Act.
The respondent pleaded guilty on 17 September 2007, in the Magistrates Court, to two counts of making a false statement in relation to this matter. He was fined $240 on each count and no conviction was recorded on either.
The CCA argues that the failure to fill out the forms correctly amounts to a breach of s 25(1)(b) of the Act as the defendant was performing his functions as an agent whilst filling out the forms required by the Act.
Complainant’s submissions
The CCA is seeking a reprimand, pursuant to s 29 of the Act, as well as the revocation of the respondent’s crowd control condition.
Counsel for the CCA highlighted that, in disciplinary matters such as this, cancellation of a security agent’s licence would be the starting point. Counsel referred to Commissioner for Consumer Affairs v Tedesco[1] and Commissioner for Consumer Affairs v Leonello[2] in support of this proposition. Only exceptional circumstances would justify not cancelling the licence.
[1] [2005] SADC 79
[2] [2005] SADC 134
For reasons that will be discussed further below, the CCA concedes that exceptional circumstances do exist not to cancel the licence, however, the Commissioner does maintain his position regarding the removal of the crowd control condition.
The CCA submits that the purpose of this disciplinary action is not punitive, rather it is for the protection of the public: Commissioner for Consumer Affairs v Sollars[3]. It was submitted that Parliament has determined that a person who has committed prescribed offences such as producing cannabis cannot hold a crowd control licence. This provision is intended to facilitate the removal of illegal drugs from the security industry and ensure adequate protection of the public at supervised events.
[3] (2001) 79 SASR 145 (para 15)
The CCA requests immediate removal of the respondent’s crowd control condition. Although the CCA is not intending to prevent the business, Extreme Security Services Pty Ltd, from operating its crowd control functions, the CCA submits that the respondent has had enough notice of these proceedings to find an employee who can hold that condition on its licence.
Respondent’s submissions
Counsel for the respondent seeks the imposition of a simple reprimand, without the removal of the crowd control condition. In the alternative, a delay in the removal of the condition is sought in order to allow the respondent’s partner time to obtain her own security licence. This would allow the company to continue to operate its crowd control business.
In addition, should the crowd control condition be removed, the respondent is seeking a sunset clause on such an order. This would alleviate the need for him to reapply for the condition in the future.
Circumstances of offending (cannabis offences)
The respondent argues in mitigation of the marijuana offence that he understood it to be an expiable offence. He had the (incorrect) understanding that cannabis had been legalised to some extent.
The regulations to the Act, in particular Schedule 1(1)(2)(c), exclude simple cannabis offences within the meaning of s 45A of the Controlled Substances Act 1984 (SA). Had the respondent committed a simple offence, as he thought he was doing, he would not have been caught by the schedule of offences under s 9.
It was submitted that there was never any commercial intent behind the growing of the cannabis plants, and I accept that. The respondent was smoking it upon the suggestion of a friend to alleviate the pain in his hand caused by a building site accident. He decided to grow his own cannabis to avoid becoming involved with drug dealers. He used hydroponic equipment obtained from a building site.
Whilst the respondent did not display very good judgment or decision-making skills when deciding to grow cannabis to assist in his pain management, his offending is at the lower end of the scale. Counsel for the CCA has submitted that the circumstances of the offence are not relevant, rather it is solely the conviction to which the CCA must look. It was said that the Commissioner does not have the discretion to have regard to any mitigating circumstances. Counsel relied upon the Commissioner for Consumer Affairs v Standley[4] which certainly supports this proposition. However, in my view, the circumstances of the offending are relevant to the Court in determining the seriousness of the respondent’s offending and the likelihood of his reoffending. Those matters are relevant to the extent of the need for disciplinary action and the need to protect the public.
[4] (1998) 71 SASR 152 at 158
The respondent submits that he is not a smoker or drinker and has never used any illicit or illegal drugs aside from this offending. Of note in that regard is the fact that he has passed every drug test required of him as part of his duties as a crowd controller.
The Personal Information Declaration
Counsel for the respondent submitted that the false and misleading statement on the Personal Information Declaration was an oversight on behalf of both the respondent and his partner. His partner filled out the forms, and he merely affixed his signature. The respondent submits that he was busy at work, as he worked both as a building contractor and in security. He was also under considerable pressure in his family life, with the recent birth of twin daughters.
With reference to the interview with Mr Ronald Parry from the Office of Consumer and Business Affairs, it is also apparent that the respondent was confused about the status of his criminal conviction. He believed, as I have stated above, that the cannabis offending was less serious than it actually was.
Further, counsel for the respondent submits that Mr W.J. Ackland SM’s fine of $240 per false statement, without conviction, indicates that he found that the misleading statements were at the lower end of the scale. The maximum penalty for making a false or misleading statement is $10,000 pursuant to s 37 of the Act.
The respondent accepts that it was his responsibility to ensure that the form was filled out accurately, and that he did not do this. It can also be taken into account, but only to a minor extent, that the respondent also failed to complete the 2005 form with complete accuracy. However, this is not capable of being prosecuted under the Act due to time limitations. The 2005 form was in a different format to the 2006 and 2007 forms, with a single tick box asking the respondent to declare “anything for mention”.
Extensive references were provided in support of the respondent. Contacts in the security industry, building industry and through his involvement at the Kenilworth Football Club refer to the respondent as a well respected, hard‑working, honest and reliable man. I am impressed by the numerous people who are all willing to speak highly of the respondent. They speak of a man who, aside from the cannabis offending, is professional and conscientious. The references from the security industry state that the respondent holds the safety and welfare of the public to be of the utmost importance, and describe him as remaining professional and calm in challenging circumstances. The respondent’s counsel submits that he avoids aggression and does not employ any staff who take steroids or have connections with any gangs.
Counsel for the respondent further submits that the public perception of the respondent is a serious consideration in assessing the appropriate disciplinary action to be taken. It was put that these proceedings hold little relevance. The respondent has since proved himself to be a man of good character who is reliable and dependable in the operation of his security company.
As a man who does not drink or take drugs and avoids violence, it was submitted that the respondent is not a person with a propensity for anti-social behaviour or a trade in illicit substances.
Conclusion and orders
I issue a formal reprimand under s 29(1)(a) of the Act.
As to the removal of the crowd control condition on the respondent’s licence, I have had regard to each counsel’s submissions.
Illegal drugs in the security industry are a serious problem. The public are entitled to protection from security officers who are under the influence of illicit substances which can make them aggressive or incapable of properly performing their duties. Further, the trade in illegal drugs through the security industry cannot be tolerated, especially in the context of bars, clubs and organised events. This is why the crowd control condition is sometimes revoked from the licence for offences such as producing cannabis. The penalty I impose must protect the public and have a deterrent effect on other members of the security industry who trade in, or consume, illegal drugs.
I have found the respondent to be a man of good character. He has little by way of an antecedent history. His extensive references indicate that he is a person in whom the public can place their trust and confidence. References specific to the respondent’s involvement in the security industry report that he is aware of the issues and level of care required of licensed security officers.
The cannabis offending indicates a serious lapse of judgment by the respondent. However, that was offending that took place over six years ago and I find that it does not represent an accurate portrayal of the respondent’s present character.
As to the protection of the public, I accept that not only was there never a commercial intent behind the growing of the cannabis plants, there is also no evidence to suggest that the respondent was ever under the influence of cannabis whilst at work in the security industry. He has never returned a positive test to any illegal drug testing in the workplace.
As to the respondent’s failure to disclose the offending on the annual returns, I am not convinced that it was a simple oversight. The forms clearly require full disclosure of any criminal convictions. However, I acknowledge the respondent taking full responsibility and pleading guilty to that offending. I am also confident that he will be more diligent in filling out such forms in the future.
I am not entirely convinced that it can be argued that the filling out of the forms can be said to be “in the course of performing his functions as an agent” (s 25). However, that matter has been agreed by the parties and I am not prepared to hold differently.
I decline to revoke the respondent’s security agent’s licence. However, in my view, having regard to the purpose of disciplinary action, there is proper cause to make an order suspending the crowd control condition from the respondent’s licence. The suspension of that condition will operate from Monday, 1 February 2010 for a period of two years from that date.