Commissioner of Consumer Affairs v Storoszczuk - [2006] SADC 20

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER OF CONSUMER AFFAIRS v STOROSZCZUK
Decision of His Honour Judge Millsteed, Assessor Fribbins and Assessor Hutchinson
10 March 2006
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Security and Investigation Agents Act 1995 - licence held - criminal offences committed – application to cancel licence – licence conditions varied and licence suspended for six months to ensure the protection of the public.
Security and Investigation Agents Act 1995 s9, s25, s29, s37; Criminal Law Consolidation Act 1935 s39; Summary Offences Act 1953 s6, referred to.
Commissioner for Consumer Affairs v Stanley (1998) 71 SASR 152; Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Carusi v Police [2002] SASC 240; Commissioner for Consumer Affairs v Tedesco [2005] SADC 79; Craig v Medical Board of SA (2001) 79 SASR 545; Commissioner for Consumer Affairs v Stamoulis [2002] SADC 101; Commissioner for Consumer Affairs v Sangster [2005] SADC 157; Commissioner for Consumer Affairs v Leonello [2005] SADC 134; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, considered.

COMMISSIONER OF CONSUMER AFFAIRS v STOROSZCZUK
[2006] SADC 20
Introduction

This is the determination of a complaint by the Commissioner for Consumer Affairs (“the Commissioner”) against Ihor Storoszczuk (“the defendant”), a security and investigation agent licensed under the Security and Investigation Agents Act 1995 (“the Act”).
The complaint alleges that there is proper cause for disciplinary action against the defendant pursuant to s25(1) of the Act on the following grounds:
(i)The defendant acted contrary to the Act[1] by failing to disclose, in an application to renew his licence lodged with the Commissioner on 3 February 2003, that he had been convicted of criminal offences on 26 July 2002.
(ii)That events have occurred since the grant of the defendant’s licence such that he would not be entitled to a licence if he were now to apply for one[2]. In particular the complainant asserts that the defendant is not a fit and proper person to hold a licence by reason of his convictions of 26 July 2002.[3]
[1] s25(1)(b)
[2] s25(1)(e)(ii)
[3] See s9(1)(d)
The disciplinary action sought by the complainant is cancellation of the defendant’s licence.[4]
[4] s29(1)(c)(iii)
Factual Background
On the hearing of the complaint the parties tendered a statement of agreed facts and affidavits which explained the history of the proceedings and the circumstances of the defendant’s offences. Affidavits tendered by the defendant contained an explanation of his conduct. The material put before us was not in dispute.
The following is a brief conspectus of the relevant facts.
The defendant is 50 years old. He has held his Security and Investigation Agent’s licence since 1 March 2000. The licence is restricted to guard work, crowd control, canine handling, selling security systems and providing advice in relation to such systems. The defendant obtained his licence though he had previously committed several summary offences, including resist police in 1987 and common assault in 1988.
He is currently employed by AMP Protective Services Pty Ltd (“AMP Security”). He holds the position of Operations Manager. He is not qualified to undertake any other skilled occupation. He is in a stable relationship. He and his partner have five children, including twins who were born on 20 January 2005. His partner has another child from a previous relationship, whom he is helping to raise.
The offences
On 26 July 2002 the defendant pleaded guilty in the Port Adelaide Magistrates Court to five offences, comprising four counts of common assault, contrary to s39 of the Criminal Law Consolidation Act 1935, and one count of resisting a member of the police force in the execution of his duty, contrary to s6(2) of the Summary OffencesAct 1953. The sentencing Magistrate recorded a conviction in respect of each offence and released the defendant on a bond, in the sum of $800, to be of good behaviour for 12 months.
The circumstances of the offences are as follows.
On the evening of 6 June 2002 the defendant attended the Parks Community Centre at Angle Park to watch his daughter perform in a school production. The victim of the assaults, Mr Kevin Taylor, was employed as a security guard at the Community Centre. Mr Taylor had previously worked for AMP Security and, after leaving the company, failed to return a guard dog supplied to him by the defendant for work‑related purposes.
The defendant approached Mr Taylor while he was conducting external security duties. The defendant grabbed Mr Taylor’s jacket, pushed him backwards (Count 1) and yelled: “Where’s my dog?” Mr Taylor fell to the ground and the defendant fell on top of him. Mr Taylor got up and called for assistance on his two-way radio. The defendant knocked the radio away from his mouth (Count 2). Mr Taylor again called for assistance. The defendant pushed him in the chest and on to the ground (Count 3). Mr Taylor got to his feet and the defendant stood in front of him with his arms crossed. He then struck Mr Taylor in the head with his elbows and forearms (Count 4). Another security guard, who had heard Mr Taylor’s calls over the two-way radio, went to Mr Taylor’s assistance. The defendant then walked away.
The security guards called the police and two uniformed police officers arrived a short while later. The police officers attempted to handcuff the defendant but he resisted by pulling his arms away (Count 5). He was eventually handcuffed and conveyed to the Port Adelaide Police Station, where he was charged. The defendant claims that he resisted the police because they had refused his request to be allowed to take his daughter home rather than leave her stranded at the Community Centre.
The false statement
On or about 3 February 2003 the defendant applied to renew his licence by lodging with the complainant an “Individual Return to the Commissioner for Consumer Affairs” (the “renewal form”). The renewal form required the defendant to disclose whether he had been “convicted or charged with a criminal offence (other than a minor traffic offence)” since he had obtained his licence. However, the defendant failed to disclose his convictions of 26 July 2002.
As a result, the complainant commenced proceedings against the defendant for a contravention of s37 of the Act. This provision states:
37A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or record kept, under this Act.
Maximum penalty: (a) if the person made the statement knowing that it was false or misleading - $10,000;
(b)in any other case - $2,500.
On 12 November 2004 the defendant pleaded guilty in the Adelaide Magistrates Court to making a false or misleading statement contrary to s37. The plea was entered by the defendant, and accepted by the Magistrate, on the basis that he did not knowingly make a false or misleading statement to the complainant and that at the time he lodged the renewal form he mistakenly believed that no convictions had been recorded against him on 26 July 2002. The Magistrate did not record a conviction and made an order that the defendant perform 40 hours of community service within six months.
The defendant’s plea in the Magistrates Court did not address his failure to mention in the renewal form that he had been charged with the offences. On the present hearing we were informed by Mr Camatta, counsel for the defendant, that the point was not canvassed in the Magistrates Court. Mr Camatta conceded that, at the time the defendant completed the renewal form, he knew that he had been charged with offences[5]. Mr Camatta explained that his client had failed to mention the charges because he “thought the matter was finished.”[6]
The scheme of the Act
[5] Transcript p38
[6] Transcript p39
Grounds for disciplinary action
The grounds upon which disciplinary action can be taken against the holder of a licence are specified in s25(1) of the Act. The section provides, inter alia, that there is proper cause for disciplinary action against an agent:
·if ‘the agent has acted contrary to this Act or otherwise unlawfully, or improperly, negligently or unfairly, in the course of performing functions as an agent’ (s25(1)(b)).
·in the case of a person licensed as an agent, if ‘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’ (s25(1)(e)(ii)).
A natural person is eligible for a licence if he or she satisfies the criteria specified in s9(1) of the Act. The section, relevantly, provides:
9 (1) A natural person is entitled to be granted a licence if –
(a)     the person has -
(i)the qualifications and experience required by regulation for the functions to be authorised by the licence; or
(ii)subject to the regulations, qualifications and experience the Commissioner considers appropriate having regard to the functions to be authorised by the licence and whether the licence is to be subject to an employee (supervision) condition; and
(b)            the person has not been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence; and
(c)     …
(d)     the person is a fit and proper person to be the holder of the licence; and
(e)     …
Pursuant to Regulation 5 and Schedule 1 of the Security and Investigation Agents Regulations 1996 (in the form in which they existed at the time of the filing of the complaint) - “an indictable offence” and “common assault or any offence of violence, other than a first offence of common assault” are offences prescribed for the purposes of s9(1)(b).
If a person fails to meet any of the criteria specified in s9(1) then he or she is not entitled to a licence and the Commissioner must refuse the application[7]. Accordingly, if as a result of events subsequent to the granting of a licence, a licence holder is convicted of a criminal offence covered by s9(1)(b) or is not a fit and proper person to hold a licence as required by s9(1)(d), then there is proper cause for disciplinary action pursuant to s25(1)(b) and s25(1)(e)(ii) respectively.
[7] Commissioner for Consumer Affairs v Stanley (1998) 71 SASR 152
The Court’s powers
On the hearing of a complaint, if the Court is satisfied that there is proper cause for taking disciplinary action, it may make one or more orders specified in s29 of the Act, including the following: a reprimand, a fine not exceeding $20,000, the imposition of conditions on a licence, the suspension of a licence for a specified period or until further order, and the cancellation of a licence.
Policy considerations
In determining the type of order to be made under s29 the Court must have regard to the policy of the Act. The policy was explained in Commissioner for Consumer Affairs v Sollars[8] by Doyle CJ. His Honour said[9]:
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 s29 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 NSW 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.
[8] (2001) 79 SASR 145
[9] (2001) 79 SASR at 147
Similarly in Carusi v Police Gray J observed[10]:
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.
[10] [2002] SASC 240 at [30]
The public perception of the risk that a licence holder may pose is an important factor in determining the penalty to be imposed under s29. The general public, including other members of the security and investigation industry, should be able to have confidence in the integrity of the licensing system. The public should not only be safe but they should also feel safe[11]. The need to impose a penalty that will reassure the public is a relevant consideration[12].
[11] Commissioner for Consumer Affairs v Tedesco [2005] SADC 79 at [6]
[12] Craig v Medical Board of South Australia (2001) 79 SASR 545 per Doyle CJ at [47]
We note that previous decisions of this Court have approached 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 and, further, that it is only in exceptional circumstances the Court should exercise its discretion not to cancel the licence.[13]
[13]Commissioner for Consumer Affairs v Tedesco [2005] SADC 79; Commissioner for Consumer Affairs v Stamoulis [2002] SADC 101; Commissioner for Consumer Affairs v Sangster [2005] SADC 157
However, in Commissioner for Consumer Affairsv Leonello[14] it was said that exceptional circumstances were not required to justify the imposition of a penalty less than cancellation of a licence:
In making the respective observations in both Stamoulis and Tedesco, we do not think the Court was laying down any exhaustive legal criterion of “exceptional circumstances”, before an order for cancellation is to be made where a disentitling offence is committed after a licence is issued. That expression merely refects the position that the Court is unlikely to make orders falling short of cancellation on relatively few occasions, following the commission of prescribed offences by licence holders under the S& IA Act. No such criterion or qualification appears in the Act, so it would be to place an unwarranted gloss on the statute to read it in that way.
On the other hand we regard both cases as persuasive to the extent that they indicate that it is only for offences - whether convictions were imposed or not - entailing relatively minor breaches of the class of offences specified under s9(1)(b), that the Court is likely to exercise powers other than full cancellation.
[14] [2005] SADC 134
We respectfully agree with these remarks.
The present application
The complaint, when lodged on 24 June 2004, contained a ground that was later withdrawn on 27 January 2005. That ground asserted that disciplinary action was warranted because events had occurred since the granting of the defendant’s licence that would not allow him to be licensed as an agent if he were now to apply for a licence (s25(1)(e)(ii)). The disentitling events relied upon were the common assaults committed on 6 June 2002, which were offences of a class prescribed for the purposes of s9(1)(b) by reason of the defendant having previously committed an offence of common assault in 1989.
On the hearing of this complaint counsel for the Commissioner explained that this ground had been withdrawn because the Commissioner had decided that it would be unfair to rely upon the 1989 offence as a basis for invoking s9(1)(b), because the defendant had been granted a licence despite the commission of that offence and other earlier offences.[15]
[15] See [6]
As earlier observed, the two grounds upon which disciplinary action is now sought are twofold: first, that by failing to disclose his convictions in the renewal form the defendant breached s37 and, accordingly, acted contrary to the Act (s25(1)(b)) and, second, that events have occurred since the grant of the defendant’s licence, namely his convictions of 26 July 2002, which demonstrate that he is not a fit and proper person to hold a licence[16] and, for that reason, would not be entitled to a licence if he were now to apply for one.[17]
[16] s9(1)(d)
[17] s25(1)(e)(ii)
First ground
The defendant was convicted of a breach of s37 for failing to disclose his convictions on the basis that he mistakenly believed that he had not been convicted of offences on 26 July 2002 when he lodged the renewal form with the Commissioner. We are prepared to accept, as the Magistrate did, that the defendant may have been labouring under such a mistaken belief. However, that does not explain his failure to disclose that he had been charged with offences.
We are not impressed with the explanation advanced by his counsel that the defendant “thought the matter was finished.” The defendant had a clear obligation to disclose whether he had been charged with any criminal offence after he had been granted his licence. The fact that he believed that the “matter was finished” in the Magistrates Court did not relieve him of that obligation.
The defendant must have appreciated that the disclosure requirements are designed to assist the Commissioner to determine whether an applicant is suitable to continue to work as an agent. Furthermore, he could not have failed to appreciate that if he disclosed the relevant charges, the Commissioner might conduct inquiries and ascertain that he had been successfully prosecuted. We infer that the defendant deliberately failed to inform the Commissioner that he had been charged because he feared that disclosure might jeopardize his application.
The disclosure requirements are an integral part of the licensing scheme administered by the Commissioner. The Commissioner is entrusted with the important task of ensuring that people who are licensed to work as security and investigation agents remain fit and proper to work in that field. The ability of the Commissioner to monitor the conduct of licensed agents, and to protect the public, depends, to a substantial extent, on the cooperation of agents and their compliance with the disclosure requirements.

The Commissioner has established that there is proper cause for disciplinary action in respect of this breach. In our opinion the breach is not a minor matter. It is necessary to impose a penalty that will operate as an effective deterrent to others minded to engage in such conduct. Such deterrence protects the integrity of the licensing system and, accordingly, serves to protect the public.
In our view a mere reprimand would fail to achieve the policy objectives of the legislation. The imposition of a fine is prohibited by reason of s29(4), which provides that a person is not liable to a fine if he or she has been found guilty of an offence and the circumstances of the offence form the subject matter of the complaint. However, disqualification or cancellation of the defendant’s licence for this breach appears too harsh in the circumstances. We are of the view that the appropriate course is to suspend the defendant’s licence for a period of six months pursuant to s29(1)(ii).
Second ground
The complainant asserts that by reason of the defendant’s convictions on 26 July 2002, he is not a fit and proper person to hold a licence. In order to show that a person is fit and proper to be the holder of a licence, he must show that he has the requisite knowledge for that occupation and also be possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry[18].
[18]Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at [75]; Carusi v Police [2002] SASC 240
The commission of criminal offences by an agent is relevant to determining whether he or she is fit and proper to carry on the occupation of a security and investigation agent[19]. The commission of crimes of violence is particularly germane to the question of whether a security guard engaged in crowd control work is fit for such work.
[19] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
As Gray J remarked in Carusi v Police[20]:
The circumstances of the offence indicate that the appellant did not understand his heightened responsibilities and the need for self-control. In his position of authority and in circumstances where conflicts and volatile situations may arise such an understanding is critical to avoid violent outbursts. Security agents should have a particular ability to control and calm such situations.
[20] [2002] SASC 240 at [32]
In the present case, the Commissioner has submitted that the defendant’s offences disclose a propensity or willingness to resort to violence in confrontational situations and that he is therefore not a fit and proper person to hold a licence and that the only proper course is to cancel his licence.
The defendant’s counsel, on the other hand, has submitted that the defendant’s offences stemmed from a single, short-lived episode of misconduct that did not result in the victim suffering any significant injury and that his conduct was provoked by the victim’s failure to return a guard dog that belonged either to the defendant or AMP Security. Furthermore, his conduct in resisting police was triggered by a legitimate concern for the welfare of his 12-year-old daughter.
Mr Camatta argued that it would be wrong to characterize the defendant as a person unfit to hold a licence, having regard to these extenuating circumstances. He also emphasized that the defendant genuinely regrets his conduct and has since apologized to Mr Taylor. In addition, he tendered a number of references from persons vouching for the defendant’s good character and his competence and professionalism as a security agent.
We accept that the defendant is genuinely contrite and that he is generally held in high regard. However, the circumstances of the defendant’s offences demonstrate an unacceptable lack of self-control. While we accept that the offences were committed in the circumstances outlined above, those circumstances do little to mitigate the defendant’s conduct. There were lawful means by which the defendant could have secured the return of the guard dog but he chose to make his point in an arrogant and violent manner. Though we accept that he was concerned for the welfare of his daughter, the defendant’s conduct in resisting the police was also inexcusable.
The defendant has demonstrated by the commission of these criminal offences that he is susceptible to losing his temper and resorting to unacceptable violence. Security guards who work in the area of crowd control are often exposed to unreasonable and provocative behaviour by members of the public. Nonetheless, they are required to exercise self-control and discharge their responsibilities in a reasonable manner. The defendant’s offences show that he lacks the requisite level of restraint. In light of these events we are satisfied that the defendant is not fit and proper to hold his current licence. Accordingly, the Commissioner has established that there is proper cause for disciplinary action in respect of this matter.
What form of disciplinary action should be taken? In our view the defendant’s behaviour indicates that it would be inappropriate for him to be involved in crowd control work, where he is likely to be exposed to provocative and confrontational situations. However, we are not satisfied that he is unfit to perform the other types of security and investigation work that he is currently licensed to perform.
We have concluded that the appropriate course is to vary the conditions of the defendant’s licence to the extent that he is not permitted to engage in crowd control work. This variation will serve to protect the public whilst enabling the defendant to maintain his employment in the long term.
Orders
Accordingly, pursuant to s29(1)(c)(i) and (e) of the Act we order that the defendant’s security and investigation licence ISL 162750 be varied by prohibiting him from being able to undertake any form of crowd control work. The licence as varied will be suspended for a period of six months. The orders will operate from today.
The defendant is to return his licence to the Commissioner with all reasonable expedition.