Commissioner for Consumer Affairs v Tedesco - [2005] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMR FOR CONSUMER AFFAIRS v TEDESCO
Judgment of His Honour Judge Lee, Assessor MacDonald and Assessor Steuart
8 July 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 – complaint asserts that there is proper cause for disciplinary action against respondent by reason of his conviction of two indictable offences of rape – scheme of Act discussed - respondent’s circumstances discussed – held that penalty should reflect need for Court to maintain public confidence in standards and integrity of security industry – order that respondent’s licence be cancelled.
Security and Investigation Agents Act 1995 ss 9(1)(b), 25(1), 29 & regulation 5, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Carusi v Police [2002] SASC 240; Craig v Medical Board of South Australia (2001) 79 SASR 545; Commissioner for Consumer Affairs v Stamoulis (unreported decision of Judge Bright, 18 July 2002), considered.

COMMR FOR CONSUMER AFFAIRS v TEDESCO
[2005] SADC 79

This is a complaint against the respondent as the holder of a licence under the Security and Investigation Agents Act 1995. The respondent’s licence is restricted to guard work and crowd control work as an employee. The complaint asserts that there is proper cause for disciplinary action against the respondent by reason of his conviction on 4 November 2002 of two indictable offences.
Section 9(1)(b) and regulation 5 of the Act together disentitle a person from obtaining a licence if that person has been convicted of an indictable offence. Section 25(1) states that there is proper cause for disciplinary action if events have occurred such that the holder of a licence would not be entitled to be granted the licence if he were to apply for it. The penalties are set forth in s 29 of the Act, and range from a reprimand to cancellation. Within that range is the power to impose conditions or further conditions on the licence.
The two indictable offences in question were of digital rape against a former partner on 6 September 2001. The respondent was found guilty of those offences, and also of assault against the same victim on a subsequent occasion, following a trial by jury in this Court. The offences were committed in the context of, to use the words of the sentencing Judge, “a relatively short lived and tempestuous relationship”. The Judge said that the respondent was possessive and jealous of his partner, and lost control of his temper at the time of the rape offences. The assault occurred some three weeks later when the respondent discovered the victim’s whereabouts at a new address and uttered a serious threat against her. The Judge imposed a single sentence of five years with a non parole period of two years and six months. The non parole period expired on 3 May 2005.
In Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, Doyle CJ spoke of the scheme of the Security and Investigation Agents Act in these words:
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.
Then, after discussing the orders specified in s 29(1) of the Act and some of the authorities, his Honour said:
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.
In Carusi v Police [2002] SASC 240, there is to be found further useful comments on the scheme of the Act. At para 30, Gray J said:
The Act’s purpose is to ensure that only properly qualified and trained agents perform security duties. The legislative scheme ensures that members of the public are not exposed to a risk of injury at the hands of untrained, unqualified and unlicensed agents. This includes the proper control of the conduct of crowds on private premises. Unacceptable and improper conduct is guarded against. The legislation recognises that private security agents are in a position of authority. Like any public enforcer of rights, their conduct must be regulated so that misuse and abuse of power can be guarded against. This is an important consideration when considering the provisions of the Act in cases such as the present.
Counsel for the complainant submitted that, even in non-licensed venues such as shopping centres and banks, a licence holder may be exposed to provocation by intoxicated and other persons wishing to cause trouble. Counsel submitted that the public’s perception of the risk that a licence holder may pose is also an important factor. The community, both the public at large and other members of the industry, should be able to have faith and confidence in the integrity of the licensing system. The public should not only be safe, they should feel safe.
We agree with those submissions. Although the Full Supreme Court in Craig v Medical Board of South Australia (2001) 79 SASR 545 was concerned with the standards of the medical profession rather than the standards of the security industry, and obviously the standards of each are of a very different nature, the need for a penalty which will reassure the public seems to us to be a consideration which should be common to both. Doyle CJ said (at para 47):
An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
We also approach the question of penalty from the position that a matter which would preclude a person from obtaining a licence in the first place should disentitle him from continuing to hold a licence unless his particular circumstances would justify a lesser penalty. A similar view has been expressed in the past: see Commissioner for Consumer Affairs v Stamoulis (an unreported decision of Judge Bright on 18 July 2002). We agree with the submission of counsel for the complainant that it is only in exceptional circumstances that the Court should exercise its discretion not to cancel the licence.
With all of those considerations in mind, we turn now to the circumstances of the respondent. He is 34 years of age. He was brought up in a stable and supportive family before leaving school having completed year 10. He then worked in a variety of jobs before joining the security industry in 1989. He performed crowd control work in various hotels. He did other security work for various organisations. He looked after domestic violence patients at various hospitals. He worked at various sporting venues. In 2002, he was diagnosed as suffering from Chrones disease. His term of imprisonment commenced on 4 November 2002.
During the final six months of his time in custody, the respondent was accepted for participation in a pre-release program, and in pursuance of that program worked casual full time with SA Sawmilling. He informs us that he wishes to continue in that work for as long as he can, but that his health is likely to require him to look for less strenuous work at some time in the future. He would then wish to return to the security industry.
The respondent’s suitability to return to work in the security industry has been made the subject of an assessment by a clinical psychologist, Mr Quentin Black. Mr Black saw the respondent on two occasions in January of this year. He took a history and conducted a number of tests. He wrote a report and gave oral evidence at the hearing. His conclusions are contained in the following paragraphs of his report:
Mr Tedesco’s potential for recidivism has been assessed as low. His behaviour which led to his current incarceration, whilst serious in nature, could be viewed within the context of a highly dysfunctional relationship, lack of personal insight and judgment at the time and difficulties adjusting to adverse circumstances contributing to its breakdown, as opposed to a long term pattern of general antisocial and violent behaviour towards others.
With respect to reinstatement of his security licence, I would suggest Mr Tedesco may benefit from undergoing a training course to update his skills and knowledge in line with changes which I understand have occurred within the industry training programmes since his period of incarceration. In addition, should his licence be retained it may be appropriate that this occur on a probationary basis with a review mechanism in place to assess and monitor his work performance. This would greatly assist with his successful reintegration into the work force and the community. If you have any queries please do not hesitate to contact me.
We also heard about the respondent from Mr John Maloney. Mr Maloney is a social worker, having graduated from the University of Adelaide in that field in 1970. His first contact with the respondent was at the Adelaide Pre-release Centre in November 2004. Thereafter he saw the respondent for at least one hour per week. He told us that the respondent reached the highest level of the pre-release regime which allowed him to engage without supervision in full time employment. He told us that the respondent participated in anger management, alcohol and other drugs and domestic violence therapeutic programs. He said that the respondent took every opportunity to gain from rehabilitative programs on offer. As for the respondent’s level of control, Mr Maloney said that he coped well with decisions that he disagreed with such as a refusal of leave to attend evening Mass prior to the day of his father’s funeral.
Turning finally to the question of penalty, we have given careful consideration to the respondent’s present circumstances and to Mr Black’s view that the offences can be looked at in the context of a highly dysfunctional relationship, rather than as indicating a long term pattern of antisocial and violent behaviour. Nevertheless, in the final analysis, we have reached the conclusion that any penalty falling short of outright cancellation would fail to adequately reflect the need for this Court to maintain public confidence in the standards and integrity of the security industry. We repeat and adopt the submissions that counsel for the complainant made on that topic in her final address:
In relation to the need for public confidence in the integrity of the security industry, in my submission, this is an important matter, particularly in our society where, increasingly, there is a private law enforcement presence, as opposed to once upon a time where police officers fulfilled all the protection and enforcement duties within the community. When a person sees a security guard at a shopping centre or a bank or at a disco where they are dropping off their children or where a student asks a security guard on duty at a uni to walk her to her car after an evening lecture, the people in those situations trust and expect that the security guard they are dealing with is a person of good character, honesty, integrity and they feel safe in the knowledge that they could rely on that guard if the need arose. All of these matters, in my submission, lie at the very heart of the principle espoused in previous cases such as Stamoulis, that principle being, where there are disentitling offences committed by a licence holder, the court assessing the appropriate disciplinary action should take cancellation as their effective starting point and only in exceptional circumstances impose orders less than that. In my submission, this is important because the legislature has specifically prescribed such offences as automatically prohibitive of entering the industry for various policy reasons. In this case the defendant’s offending meets two of those categories, it’s an indictable offence and an offence of violence.
It may be that the personal impact on Mr Tedesco of a cancellation order may end up, in the court’s eyes, appearing to be a form of punishment upon him which you believe he, at a personal level, does not deserve. However, in my submission, that is not what this disciplinary court ought ultimately to be concerned with. It is concerned only with the protection of the public and the maintenance of the standards of the industry so that the public can have faith in the integrity and reliability of that industry.
There being proper cause for taking disciplinary action against the respondent, the formal order of the Court is that the respondent’s licence be cancelled.