Commissioner for Consumer Affairs v Sangster - [2005] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of SECURITY & INVESTIGATION AGENTS ACT 1995
COMMISSIONER FOR CONSUMER AFFAIRS v SANGSTER
Judgment of His Honour Judge Smith
(Assessor Klavins and Assessor Hewitt)
29 November 2005
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 - respondent convicted of producing cannabis and theft of electricity - complaint alleged proper cause for disciplinary action against the respondent by reason of the two offences - consideration of scheme of Act - discussion of the purpose of disciplinary proceeding being the protection of the public and maintenance of standards in the security industry as opposed to punishment of the respondent - held there was proper cause for disciplinary action - order that respondent's licence be cancelled.
Security and Investigations Agents Act 1995 s 9(1)(b) & (d), s 25(1)(e)(ii), s 26, s 29, Part 4; Controlled Substances Act 1984 s 32(1)(a); Security and Investigation Agents Regulations 1996 sch 1, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; O'Sullivan v Farrer (1989) 168 CLR 210; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v SANGSTER
[2005] SADC 157
Background Circumstances

The respondent, Luke Thomas Sangster, is the holder of a Security and Investigation Agents Licence pursuant to the provisions of the Security and Investigations Agents Act 1995 (SA) (“the Act).
On the 21^st January 2005 in the Magistrates Court at Adelaide the respondent pleaded guilty to and was convicted of the following offences:
On the 27^th day of May 2004 at Goodwood in the said State, knowingly produced cannabis, a prohibited substance, such production being 19 plants or less, namely 12 plants.
Section 31(1)(a) of the Controlled Substances Act 1984.
This is a summary offence
On the 27^th day of May 2004 at Goodwood in the said State, committed theft by taking electricity of a value involving $2500 or less the property of ETSA dishonestly and without the owners consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134(1) of the Criminal Law Consolidation Act 1935.
This is a summary offence.
The Act empowers the complainant, the Commissioner for Consumer Affairs, to take disciplinary action against licensed agents if there is proper cause to do so (see Part 4 of the Act).
There is proper cause for disciplinary action against an agent if, inter alia, “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” (s 25(1)(e)(ii)).
A person who has been convicted of knowingly producing 12 cannabis plants contrary to s 32(1)(a) of the Controlled Substances Act 1984, is not entitled to be granted a licence if he or she were to apply for one (s 9(1)(b) of the Act and Schedule 1 of the Security and Investigation Agents Regulations 1996 (Regs)).
Unlike the drug offence, the theft offence does not constitute such a complete bar to the obtaining of a licence. It is not a prescribed offence (see Schedule 1 Clause 1 of the Regs). So by itself it does not constitute “a proper cause for disciplinary action ...” within the meaning of s 25(1)(e)(ii). So in this case if the theft of electricity was the only offending by the respondent, the Commissioner could not have made this complaint. It seems to us anomalous that a licensed agent, who is for instance working in a retail business and who is recently convicted of simple larceny which was not committed in the course of his employment as an agent, could not be the subject of disciplinary action.
However, to obtain a licence in the first place a person must be “... a fit and proper person ...” (s 9(1)(d)). The commission of the offence of theft would be relevant to whether a person is fit to hold a licence. It would constitute an obstacle to obtaining a licence but under the legislation not an insurmountable obstacle (s 9(1)(b)).
So the question which arises is what part the theft offence should have in this matter.
The theft offence is inextricably linked to the commission of the drug offence and it is proper for the Commissioner to rely upon it as being part of the misconduct, namely the drug offending, which constitutes the “proper” cause for disciplinary action.
Accordingly, pursuant to s 26 of the Act the Commissioner lodged with this Court a complaint alleging the above offending as grounds for disciplinary action. The complaint alleges that there is proper cause for disciplinary action against the respondent in 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.
Contrary to sections 25(1)(e)(ii) and 9(1) of the Security and Investigation Agents Act 1995.
Particulars
1.     At all material times, the defendant has held a security and investigation agents licence, ISL 178975.
2.     On 21 January 2005, the defendant was convicted by Mr Newman SM, a Magistrate sitting as a Magistrates Court in Adelaide in the State of South Australia, of an offence of a class specified by regulation in relation to the functions authorised by his licence.
a.The defendant was convicted of the offence of producing cannabis, contrary to s.32(1)(a) of the Controlled Substances Act 1984, which offence was committed on 27 May 2004.
b.The said offence involved 12 cannabis plants and was not a simple cannabis offence within the meaning of s.45A of the Controlled Substances Act 1984.
3.     The defendant is not a fit and proper person to be the holder of a security and investigation agents licence.
a.The particulars alleged in particular 2 are repeated.
b.On 21 January 2005 the defendant was convicted of the offence of theft by taking electricity dishonestly and without the owner’s consent, contrary to s.134(1) of the Criminal Law Consolidation Act 1935, which offence was committed on 27 May 2004.
(Note the complaint refers to Mr Sangster as “the defendant” whereas we have been referring to him as “the respondent”. It is a matter of no consequence.)
Powers of Court – other parameters
On the hearing of a complaint this Court may, “if it is satisfied on the balance of probabilities that there is a proper cause for taking disciplinary action ...” make orders ranging from a reprimand at the lower end of the spectrum to outright cancellation of the licence at the other (see s 29). The orders we regard as applicable in this case are either suspension of the licence for a specified period (s 29(1)(ii)), or the outright cancellation of the licence (s 29(1)(iii)). We were told by counsel, for the Commissioner, that by reason of new regulations if the licence is cancelled the defendant would not be able to apply for another for 10 years.
We direct ourselves that the purpose of disciplinary proceedings under the Act is the protection of the public as opposed to punishment of the respondent, which of course has already occurred. In Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, Doyle CJ said on this topic 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.
.......................
Be that as it may, the question for the Court, bearing in mind that proper cause for the taking of disciplinary action had been made out, was which of the orders provided for in s 29 of the Act should be made.
That was a decision to be made taking account of the fact that the purpose of the statutory scheme is the protection of the public. 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. The observations made by the High Court in New South Wales Bar Association v Evatt (1968) 117 CLR 177 are as applicable to this case as they are to disciplinary proceedings against members of the legal profession. There the Court said (at 183-184):
“The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.”
The Court went on to refer to remarks a like effect that it had made in Clyne v The New South Wales Bar Association (1960) 104 CLR 186 where it said (at 201-201):
“... [A] disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.”
Thus, although the operation of the order on the agent in question may appear to be punitive, the issue for the Court is the protection of the public.
The Issue
As indicated the issue in this matter is whether the Court should cancel the respondent’s licence or merely suspend it for a specified period. The hearing proceeded on the basis that other disciplinary action in s 29 whilst available is not indicated.
The Evidence
Though there was no contest about it, the complainant proved that the respondent has held a Security and Investigation Agents Licence from the 19^th August 2003 (Exhibit P3).
Also the complainant established, and the respondent admitted, the commission of the two offences of producing cannabis and theft.
Further, the complainant tendered the sentencing remarks of the Magistrate of the 21^st January 2005 which set out the basis upon which the respondent was sentenced, which of course is pertinent to this matter. The remarks were as follows:
You have pleaded guilty to hydroponically growing 12 cannabis plants and stealing electricity in order to grow them. The offending, as I have indicated, is quite serious. It is well up in the scale of those offences which can be dealt with summarily.
Not only does the fact that the plants were grown hydroponically indicates a degree of pre-planning, you had gone on to purchase the cannabis set-up and a grow room. You then had gone to the extent of diverting electricity so that, I would suggest, you would not only [not] (sic) have to pay, but be assisted in not getting detected. There was a substantial amount of electricity being used in the house.
All of those factors lead me to the conclusion that this is a serious offence of its nature.
Your counsel has asked that I deal with the matter, pursuant to Section 16 of the Criminal Law Sentencing Act, without conviction. The first matter that has to be decided before Section 16 comes into effect is whether the court proposes to impose a fine or community service sentence, or both. As I have indicated, this is a matter that comes very close to a term of imprisonment being imposed. Certainly if you had prior convictions for this sort of offending a term of imprisonment would be the most likely outcome.
It is however a matter at this stage where I would be considering a fine. Whilst it may be that at this point in your life, it is unlikely that you will commit offences again, in my view the provisions of Section 16(b), which have to exist as well, do not exist in this case. This offence is a very serious offence and was engaged in a premeditated and planned way. The fact that a conviction will have an effect on employment is an unfortunate consequence of your offending behaviour. It should be remembered however that it is your behaviour that placed you in this position.
The offence, I repeat, is a serious example of this sort of offending. Whilst I am told there is no element of commerciality, really all that means is at this stage nobody is able to say that there was any commerciality. Twelve plants would produce a substantial amount of cannabis. The usual estimate is at least $1000 a plant on the market.
You will be convicted in relation to both counts, and I impose one penalty, namely a fine of $1000. Court fees of $130.20 apply, as well as a levy of $70 and prosecution costs of $16. I further order forfeiture of the drugs and equipment seized.
We accept as did the Magistrate that the respondent grew the cannabis for his own use.
The respondent gave the complainant notice of the convictions and penalty and at the same time made a plea to the complainant for the preservation of his licence. In particular, he provided to the complainant a declaration as to the circumstances of the offending, a solicitor’s letter of explanation, three references and a letter from a naturopathic physician (see Exhibit P2). We received these documents as evidence in these proceedings.
The respondent represented himself.
As to the offending, he informed the Court that though he had been a user of cannabis, he did not work as an agent whilst affected by it. He expressed regret and remorse and indicated that he has obtained counselling and therapy to address what he called his addiction to cannabis. He told us, and we accept, that he had not used cannabis for a year. As to the theft of the electricity he informed the Court that he had recently received a credit note from ETSA who has not sought any recompense for the small amount of electricity which he stole.
The respondent provided the Court with some personal particulars. He is 23 years old and engaged to be married. He has an infant son. He works for an organisation called Direct Conveyancing as a full-time conveyancing clerk. He confirmed that he received his licence in August 2003 and from that time until March/April 2005 he worked casually as an agent. He said that he would like to work in the industry in the future, on a casual basis, in order to supplement his income and support his family. He recounted his past work as an agent in the following terms:
I worked at the Victoria Hotel on South Road at O’Halloran Hill, New York Bar & Grill at Marion, I worked at The Archer Hotel at North Adelaide, St Paul’s Cathedral for special events there, I also work at Flinders Medical Centre as a patient guard on a casual basis. I was asked to do permanent part-time but I sort of – the money, it was better to work casually there so I chose to do that. I was there fore probably about six months. Sky Show, special events like that for Group 4 and I’ve never had any complaints and always had praise from my employers.
He ended his submission by seeking a suspension of his licence rather than its cancellation.
Decision
There is clearly proper cause for taking disciplinary action against the respondent.
What disciplinary action is appropriate?
Persons who work as Security and Investigation Agents must be, and be seen to be, law-abiding citizens. Some of their tasks are akin to that of a policeman. They perform some law enforcement functions and, for instance, carry out tasks of ensuring gatherings of, in particular, young people behave in an orderly and law abiding way. The public must be able to expect that the private security guard will be trustworthy and that he or she is a person of good character, honesty and integrity.
The provisions of s 29 of the Act prescribe a wide range of disciplinary orders. It is for this Court to make the order which is the appropriate disciplinary measure given the circumstances of the misconduct, the circumstances of the respondent and the prevailing considerations of public interest. This discretion to choose the appropriate order is not specifically circumscribed, but in our view, it is to be exercised by reference to the subject matter scope and purpose of the legislation (see O’Sullivan v Farrer (1989) 168 CLR 210 at 216).
The starting place in a case like this must be the loss of licence because the policy spelled out by the legislation is that the commission of such a drug offence would, if the respondent was an applicant for a licence, bar him from entering the industry in the first place. However, the legislature has effectively left this Court with a discretion to relieve a holder of a licence from forfeiture, if the circumstances justify it. We would suggest that the circumstances must be exceptional to excuse the respondent from conduct which would disentitle him to a licence if he were a new applicant.
As to “fitness and propriety”, which is a relevant consideration here, we respectfully adopt that said by Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76:
The issue whether an appellant has shown himself to be “a fit and proper person”, within the meaning of s16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
In this case, the cannabis production was not for any commercial purpose and we accept that the respondent did not work whilst affected by cannabis during the time he was regularly taking it. However, such cultivations, even backyard cultivations, provoke criminality. The break-in at the respondent’s house and the theft of the cannabis exemplifies this mischief. The theft of the electricity to power the hydroponic cultivation though not a disentitling offence, in the sense previously discussed, raises questions about the respondent’s fitness to hold such a licence. As he arranged the bypassing of the ordinary electricity supply to the premises, there must have been in place a determination and a realisation that this was a blatant act of criminality.
In all the circumstances, the order of the Court is that the respondent’s licence be cancelled.