Commissioner for Consumer Affairs v Titcomb - [2008] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER FOR CONSUMER AFFAIRS v TITCOMB
[2008] SADC 80
Reasons for Decision of His Honour Judge Chivell
26 June 2008
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Respondent holder of licence under Security and Investigation Agents Act. Complainant alleging proper cause exists for disciplinary action on the basis that respondent convicted of a prescribed offence (producing cannabis), and that respondent not a fit and proper person to hold a licence. Order cancelling licence.
Security and Investigation Agents Act 1995 s26, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Cmmr for Consumer Affairs v Tedesco [2005] SADC 79; Cmmr for Consumer Affairs v Stamoulis [2002] SADC 101; Commissioner for Consumer Affairs v Leonello [2005] SADC 134; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v TITCOMB
[2008] SADC 80

The Commissioner for Consumer Affairs (“the Commissioner”) has made a complaint pursuant to s26 of the Security and Investigation Agents Act 1995 (“the Act”) alleging that there is proper cause for disciplinary action against Mr Titcomb. Mr Titcomb is the holder of a security investigation and agents licence number ISL 68919.
Section 25 of the Act sets out the circumstances which will constitute proper cause for disciplinary action. The Commissioner alleges that in this case the circumstances which give rise to proper cause are as follows:
·Events have occurred such that Mr Titcomb would not be entitled to be granted a licence if he were to apply for one (s25(1)(e)(ii)). On 16 June 2005, Mr Titcomb was convicted of producing cannabis contrary to s32(1)(a) of the Controlled Substances Act 1984. Such an offence is one of a class specified by regulations pursuant to the Act. If Mr Titcomb were not the holder of a security and investigation and agents licence, and if he applied for one after conviction of that offence, he would not be entitled to be granted a licence (s9(1)(b)).
·Mr Titcomb is not a fit and proper person to hold a licence under the Act (s25(1)(f)(i)).
In addition to the conviction referred to in the first ground, on 25 October 1994, Mr Titcomb was convicted of providing false personal details to police and providing false information on a bail application. On 29 June 1995, he was convicted of trespass on a prescribed premises. On 9 January 1996, he was convicted of re‑entering a premises within 24 hours of having been removed, disorderly behaviour, and carrying an offensive weapon, namely a flick knife. On 27 January 2000, he was convicted of 10 offences against the Social Security Act and on 7 December 2000, he was convicted of carrying an offensive weapon, namely a pocket knife, an extendable baton and a can of mace while working as a crowd controller at an under‑age venue.
The allegations made by the Commissioner are admitted by Mr Titcomb, and Mr Isaacs, his counsel, conceded that proper cause exists for disciplinary action on both of the grounds put forward by the Commissioner.
On the basis of Mr Isaacs’s concessions, I am satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against Mr Titcomb.
Section 29(1) of the Act states that if I am so satisfied, I may make one or more of the following orders:
(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.
It is submitted by counsel for the Commissioner, Mr Davey, that I should order the cancellation of Mr Titcomb’s licence. Mr Isaacs, on the other hand, submitted that I should disqualify Mr Titcomb from holding a licence for a specified period.
However, I do not think that disqualification is an appropriate order in the circumstances. Since Mr Titcomb is presently licensed as an agent, it seems to me that the three options in s29(1)(c) quoted above are appropriate. In these circumstances, only suspension or cancellation appear to be the appropriate options.
As to that, I have regard to the purpose of such legislation. In Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145 at 147-148, Doyle CJ pointed out that the purpose of such legislation is the protection of the public and not the punishment of the licence holder. His Honour referred to the well known decisions of the High Court in New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-4, and Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201.
Doyle CJ said:
..... 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.
In circumstances where, as here, the agent is convicted of an offence which would render him ineligible to apply for a licence, there have been a number of decisions in this court over the years which suggest that this is a strong factor in favour of cancellation of the agent’s licence. For example, in Cmmr for Consumer Affairs v Tedesco [2005] SADC 79 the court wrote:
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 ..... it is only in exceptional circumstances that the Court should exercise its discretion not to cancel the licence.
Leaving aside the question of whether it is appropriate to circumscribe a judicial discretion by placing an “exceptional circumstances” test, the message is clear.
Similarly, in Cmmr for Consumer Affairs v Stamoulis [2002] SADC 101, the court wrote:
In all those circumstances there is nothing to take his case out of what I would regard as the ordinary class which is that a person who would not be entitled to get a licence in the first place in any circumstances should not be entitled to continue to hold a licence if he commits a prescribed offence.
In Commissioner for Consumer Affairs v Leonello [2005] SADC 134, the court wrote:
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.
In this case it is said that Mr Titcomb allowed his premises to be used for the cultivation of six cannabis plants. He pleaded guilty, and was fined $1,000. It was submitted that there was no suggestion of commerciality in the offence. Six plants is a substantial number. The offence suggests to me that Mr Titcomb’s own criminality aside, his choice of associates was, to put it mildly, very unwise. On the basis of Mr Titcomb’s conviction for the prescribed offence, the Commissioner’s first ground, I conclude that it is appropriate that his licence be cancelled.
As to the Commissioner’s second ground, I ignore the entries on Mr Titcomb’s Antecedent Report arising out of events when he was under the age of 18.
The offence in 1996 of re‑entering licensed premises within 24 hours of being removed, disorderly behaviour, and carrying an offensive weapon related to an incident where a bouncer at the Heaven Nightclub had insulted his companion, he had been ejected, but he tried to re‑enter in order to get his companion or companions out. What I find particularly concerning about this incident is that when he was arrested by police, he was found to be carrying a knife.
In 2000, he was convicted of a number of social security offences. His sentence was that he be imprisoned for two months and then released upon a suspended sentence for a further eight months upon entering into a bond for two years. He was ordered to pay compensation of more than $10,000. Mr Isaacs told me that this had been repaid. He told me that the offences occurred after Mr Titcomb’s business in the security industry collapsed as the result of embezzlement by one of his partners. The resulting financial problems caused him to continue to claim social security payments whilst earning income.
These are also prescribed offences pursuant to the regulations because they are indictable offences.
Also in 2000, Mr Titcomb was convicted of carrying an offensive weapon. He was employed at St Paul’s Nightclub as a crowd controller, there was a large fracas involving a number of under‑aged patrons, he had confiscated a knife, an extendable baton, and a can of mace. He did not follow required protocols and hand such items in to his supervisor. Knives were being wielded during the fracas. Mr Titcomb was found wielding the extendable baton by police and was arrested. He pleaded guilty and was fined $300.
The only other offences which have been committed since the producing cannabis conviction are two separate instances of driving a vehicle whilst it was unregistered and uninsured.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76, Walters J said:
..... 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.
On the basis of the above information, it seems to me that the conclusion is inescapable that Mr Titcomb is not a fit and proper person to hold a licence.
It seems to me that in a situation where the holder of a licence under the Act has been found to be not a fit and proper person to hold such a licence, it would be surprising if the result were other than cancellation of the licence.
Accordingly, on the basis of both grounds presented by the Commissioner in this case, the only appropriate order to be made pursuant to s29 of the Act is that Mr Titcomb’s licence be cancelled. I so order.
Pursuant to s36 of the Act, I direct that Mr Titcomb return licence number ISL 68919 to the Commissioner forthwith. I point out to him that the maximum penalty for failure to comply with this direction is a fine of $2,500.