Commissioner for Consumer Affairs v Jurjevic
[2006] SADC 65
•15 June 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER FOR CONSUMER AFFAIRS v JURJEVIC
[2006] SADC 65
Judgment of Her Honour Judge Shaw
(Assessor Warner and Assessor Hutchinson)
15 June 2006
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Complaint against respondent as holder of a licence under Security and Investigation Agents Act - Complainant asserts that there is proper cause for disciplinary action against respondent by reason of his conviction of indictable offences - order that respondent's licence be suspended for a period of fourteen months.
Security and Investigation Agents Act 1995 ss26-29, 25(1)(e)(ii) & 9(1); Controlled Substances Act s32(1)(a), referred to.
Commissioner for Consumer Affairs v Tedesco [2005] SADC 79; Commissioner for Consumer Affairs v Stamoulis [2002] SADC 101; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Commissioner for Consumer Affairs v Leonello [2005] SADC 134, considered.
COMMISSIONER FOR CONSUMER AFFAIRS v JURJEVIC
[2006] SADC 65
The Commissioner for Consumer Affairs (“the Commissioner”) brought a complaint dated 13 February 2006 against Bob Jurjevic (“the defendant”), the holder of a security agents licence since 31 March 1996, pursuant to the provisions of the Security and Investigations Agents Act 1955 (SA) (“the Act”).
This court, sitting as the “Administrative and Disciplinary Division”, exercises jurisdiction relating to disciplinary actions commenced against licensed agents pursuant to ss26-29 of the Act. The complaint is brought pursuant to s26 of the Act. The Commissioner requested that the hearing be heard ex-parte.
There was no appearance by the defendant. An affidavit of service has been filed. The court received a letter dated the 22nd March 2006 from the defendant indicating that he would not contest the action taken by the Commissioner. In these circumstances the court decided to hear the matter ex parte pursuant to the Administrative and Disciplinary Division Rules No VI-31.
The Commissioner alleges that there is proper cause for taking disciplinary action against the defendant upon the ground that:
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) of the Security and Investigation Agents Act 1995.
The defendant is the holder of a security and investigations licence as alleged in paragraph one of the particulars of the complaint.
In paragraph two of the particulars of the complaint, it is alleged that the defendant was convicted on 27 April 2005 of producing a controlled substance contrary to s32(1)(a) of the Controlled Substances Act. Because the offence involved nine plants, it is not a simple offence within the meaning of s45A of the Controlled Substances Act. Therefore this offence falls within the class of offences in respect of which the Regulations provide that a person is not eligible to be granted a licence.
It is alleged in paragraph three of the particulars of the complaint that the defendant is not a fit and proper person to hold such a licence. The Commissioner relies upon the defendant’s convictions on 27 April 2005 for producing a controlled substance (as set out in paragraph two of the complaint), and for failing to store ammunition in a locked container (Ex P2). The defendant was fined the sum of $350.00 in respect of both offences. The Commissioner also relies upon the defendant’s conviction on 16 December 1997, for producing cannabis in respect of which the defendant was fined the sum of $150.00 (Ex P4).
We find on the balance of probabilities, that there is proper cause for taking disciplinary action against the defendant pursuant to the provisions of s25(1) of the Act.
The Commissioner sought cancellation of the defendant’s licence pursuant to s29(1)(c)(iii) of the Act. We were referred to a number of previous decisions of this court. Counsel for the complainant pointed out that if this court made a cancellation order, the defendant would be ineligible to apply for a security licence for ten years.
Section 9(1) of the Act identifies the eligibility criteria to be licensed. Of particular relevance in this matter is s9(1)(b) which provides that if a person has been convicted of an offence prescribed by regulation, he is not entitled to be granted a licence.
The offence in respect of which the defendant was convicted on 27 April 2005 is “of a class specified by regulation in relation to the functions to be authorised by the licence”; within the meaning of s9(1)(b) of the Act. It follows that his conviction for this offence constitutes “an event that has occurred” within the meaning of s25(1)(e)(ii) of the Act, such that the defendant would not be entitled to be granted the licence if he was to apply for it.
In relation to paragraph two of the complaint, the Commissioner does not rely upon the defendant’s 1997 conviction. However, the earlier conviction indicates that the 2005 conviction for a drug offence was not an isolated instance of offending. We were not provided with the sentencing remarks in relation to either of those convictions.
We note that a court, unlike the Commissioner, may exercise a discretion to make one of a number of possible orders.[1]
[1] See Commissioner for Consumer Affairs v Tedesco [2005] SADC 79; Commissioner for Consumer Affairs v Stamoulis [2002] SADC 101
A person is not automatically disqualified from holding a licence upon his conviction for an offence prescribed by regulation. The court has a broad jurisdiction to make various orders including cancellation, suspension, reprimand, restricting the scope of the agent’s licence or imposing a fine not exceeding $20,000.
We accept that the conduct of the defendant would ordinarily disentitle him from holding a licence. We note the policy considerations which underpin the approach required under the Act. We bear in mind the aims of the Act, namely:
...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 qualification, experience and fitness for the occupation.[2]
[2] Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145 at 147 [14] per Doyle CJ
We have regard to the importance of maintaining public confidence in the security industry and in the integrity of the licensing scheme.
In Sobey v Commercial and Private Agents Board[3], Walters J said:
Hence, it seems to me that the object of the legislation is twofold: first, to control, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and, secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them. With this in mind, Parliament has constituted a Board which, in the exercise of its discretion to grant or refuse licences, has a duty to the community to be careful not to accredit any person as a licensee under the Act, unless he is worthy of public confidence and can satisfactorily establish his right to that credential.
[3] (1979) 22 SASR 70, 74
It was accepted by the Commissioner that the cannabis which was the subject of the 2005 conviction, was for personal use only and that the penalty imposed in the Magistrates Court was at the lower end of the scale.
We have had regard to the remarks of Tilmouth J in CCA v Leonello[4]
When it comes to prescribed cannabis offences, it is only in circumstances where the offence stands at the comparatively low end of seriousness for that class of offence, we suggest, that the court might entertain a more benign view. Certainly when the evidence suggests any element or component of the manufacture, or production of any prohibited drug or substance for sale or supply, or there is any semblance of commerciality, it is hardly conceivable that anything other than cancellation is appropriate.
Even then where the licence holder works in the security and investigation industry on assignments involving the potential for frequent contact with people, and especially young people, who may be seeking drugs, such as in nightclubs and the like, the mere proof of a prescribed drug offence might in itself be enough to visit the full rigor of cancellation upon the holder, if other options prove to be inapplicable or unworkable.
It follows that whilst not every subsequent event disentitling an agent from the grant of a licence would necessarily lead to cancellation under the present statutory scheme, there are possibly few that would not.
[4] [2005] SADC 134 Paras [30] – [32]
We received evidence of the defendant’s circumstances in a letter he had written to the Commissioner to which were attached a number of impressive work and character references from employers (Exhibit D2). The defendant has held his security agents licence for 13 years. He worked as a licensed security agent at the Whyalla University for six years. Security work is his sole income. He supports his spouse and three sons aged 9, 7 and 5 years.
The defendant’s circumstances are comparable to the circumstances of the defendant in Leonello’s case.
Although each case must be considered upon the basis of its particular facts and circumstances, we have found the approach taken in Leonello’s case helpful to our consideration of the present matter.
In relation to the exercise of our powers pursuant to s29, we refer to the judgment in Leonello’s case[5];
We commence the question of the appropriate option from those available to us under that section, from the point of view that the defendant has committed conduct which would ordinarily disentitle him from holding a licence, and he has therefore by his own conduct, exposed himself to forfeiting the privilege the licence confers, unless his particular circumstances justify a different resolution.
This approach is dictated by policy considerations evident from the Act itself,....
A mere reprimand would singularly fail to achieve any of these objectives. A fine is inappropriate since the defendant has already been fined in the criminal court for the subject offences and since the licence is one held as an employee, there would be no purpose in prohibiting him as an employee from holding employment because that would be tantamount to cancellation anyway.
[5] At paras 38-40
These considerations are also relevant to the situation of the defendant.
We are not satisfied that cancellation or disqualification of the defendant’s licence is an appropriate penalty.
The Commissioner submitted that the determination of whether someone is a fit and proper person to hold a licence under s9(1)(d) of the Act, requires a subjective assessment of the defendant’s circumstances. The Commissioner relied upon all of the defendant’s convictions. It was submitted that the nature of the convictions was relevant to the duties of security agents. It was pointed out that security agents exercise control over conduct in licensed premises where there is a risk of violent behaviour and drug and antisocial behaviour.
Taking into account the submissions of counsel and all of the information properly before the court, we are not satisfied on the balance of probabilities that the defendant is not a “fit and proper person” to hold a licence.
Order
We are of the view that the appropriate course in this case is to suspend the defendant’s licence pursuant to s29(1)(c)(ii) of the Act.
Taking into account the policy considerations relating to the legislation, the matters upon which the Commissioner relies, the nature of the offending and the defendant’s personal circumstances, we consider that a period of suspension of fourteen months is the appropriate period of suspension to be imposed. We are of the view that this period of suspension best reflects “an appropriate balance between the findings of relatively minor offending committed by the defendant, as against the primary policy of public protection, and as an appropriate measure designed to reinforce the confidence of the public in the industry and in the administration of the S & I A Act itself.”[6]
[6] Leonello supra at paras 47-48
It is the order of the court that the Registered Agents Licence ISL67109 held by Mr Bob Jurjevic be suspended under the provision of s29(1)(c)(ii) of the Security and Investigation Agents Act for a period of 14 months commencing seven days from the delivery of this judgment. We make no order as to costs.
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