COMMISSIONER OF POLICE and AFOA
[2024] WASAT 56
•4 JUNE 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: COMMISSIONER OF POLICE and AFOA [2024] WASAT 56
MEMBER: MS N EAGLING, MEMBER
HEARD: 11 MARCH 2024
DELIVERED : 4 JUNE 2024
FILE NO/S: CC 47 of 2024
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
JOHN SIONE AFOA
Respondent
Catchwords:
Security officer and crowd controller - Licences - Suspension - Review - Extenuating circumstances
Legislation:
Crimes Act 1914 (Cth), s 19B(1)
Criminal Code Compilation Act 1913 (WA), s 313, s 317(1)
Security and Related Activities (Control) Act 1996 (WA), s 3, s 4A(3), s 12, s 15, s 35, s 36, s 52, s 52A, s 67A, s 67A(2)(c), s 67A(4)(a), Pt 3, Pt 5, Pt 7
Security and Related Activities (Control) Amendment Bill 2007 (WA)
Security and Related Activities (Control) Regulations 1997 (WA), reg 24, reg 25, Sch 2, Div 1, Div 2
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 29
Result:
Decision to suspend set aside and replaced with a decision not to suspend
Category: B
Representation:
Counsel:
| Applicant | : | Ms Jodie la Spina and Ms Seiminie Kottage |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | WA Police Legal Services |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Anderson v Racing Penalties Appeal Tribunal of Western Australia & Anor, (unreported, WASCA (Full Bench), Library No 970504C, 3 October 1997)
Commissioner of Police and Albert [2012] WASAT 34
Commissioner of Police and Kanyimbu [2010] WASAT 61
Commissioner of Police and Lilii [2014] WASAT 85
Commissioner of Police and Wheeler [2014] WASAT 9
Mansfield v Evans [2003] WASCA 193
Mohammadi v Bethune [2018] WASCA 98
Nitschke v Halliday (1982) 30 SASR 119
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 18 January 2024, a delegate of the Commissioner of Police (applicant) issued to Mr John Sione Afoa (respondent), a Notice of Licence Suspension (Notice). The Notice suspended the security officer, security monitoring officer and crowd control licences (Licences) held by the respondent under s 67A(2)(c) of the Security and Related Activities (Control) Act 1996 (WA) (Security Act).
The Notice stated that the Licences were suspended on the grounds that the respondent had been charged with a disqualifying offence, namely common assault and there were no extenuating circumstances.
Prior to the Notice being served, the applicant was served with a 'Notice of Intention to Suspend Your Licenses' on 3 January 2024 which invited him to 'give the details of any extenuating circumstances you believe exist in relation to the pending charge'. The applicant's response was to the effect that he was innocent of the charge which was made up and a lie.[1]
[1] Exhibit 1, page 7.
The Notice stated that the suspension would remain in force until 14 days after the charge of common assault had been determined by a court and informed the respondent that the matter had been referred to the State Administrative Tribunal (Tribunal).[2]
[2] Pursuant to s 67A(4)(a) of the Security Act, the applicant is required to refer the decision to suspend the respondent's licences to the Tribunal, within 14 days of making the reviewable decision. The applicant referred the matter to the Tribunal on 25 January 2024, within the 14 day timeframe.
On 5 March 2024 the parties attended a mediation conference at the Tribunal which was unsuccessful in resolving the dispute and the matter was listed for a hearing on 11 March 2024.
The matter was heard in the Tribunal on 11 March 2024. The Hearing Book was tendered as Exhibit 1. The applicant did not call any evidence. However, at the Tribunal's suggestion, the Body Worn Camera (BWC) footage of the incident giving rise to the criminal charge (Exhibit 2) and the footage of the incident which was filmed by the complainant on her mobile phone (Exhibit 3), were played. The respondent gave evidence and was cross-examined.
At the conclusion of the hearing the Tribunal made orders setting aside the decision of the applicant to suspend the Licences and substituted the decision with a decision not to suspend the Licences. The Tribunal indicated that it would publish its reasons for decision in relation to the matter which now follow below.
Statutory regime and legal principles
The long title of the Act is:
An Act to provide for the licensing of persons engaged in work relating to –
·the protection of persons and property;
·investigation or surveillance; and
·crowd control,
and of agents who supply the services of persons to carry out such work, to prohibit unauthorised persons from acting as armed bodyguards, and for related purposes.
Consistent with that title, the Security Act provides for a system for licensing of various categories of licence holders, including security officers and crowd controllers.[3] The system of licensing specifies various criteria which licence holders must satisfy (for example, they must be a fit and proper person) and also provides for the imposition of conditions and restrictions under which the licences may be held.[4]
[3] Part 3 of the Security Act concerns the licensing of security activities. Section 12 defines 'security officer' and section 15 provides that a security officer must be licensed. Part 5 of the Security Act concerns the licensing of crowd control activities. Section 35 defines 'crowd controller' and section 36 provides that a crowd controller must be licensed.
[4] See Part 7 of the Security Act which is entitled 'Licensing procedures' and in particular s 52 and s 52A of the Security Act which sets out the matters which must be considered when deciding whether to issue a licence.
It is obvious that one of the purposes of this licensing regime is to ensure that only suitable persons are able to hold the licences under the Security Act and therefore provide protection to the public. In the Second Reading Speech to the Security and Related Activities (Control) Amendment Bill 2007 (which provided for comprehensive reforms to the legislation), the Hon Jon Ford, MLA, stated as follows:
It is the government's view that the bill will greatly improve the regulation of the security and related industries and, as a result will be a great benefit to the general public … Upon enactment the act will significantly reform and improve the security and related industries and will result in a greater level of protection for the public of Western Australia.
Division 4 of Pt 7 of the Security Act is entitled 'Disciplinary proceedings' and sets out when a licence may be revoked and suspended. Section 67 of the Security Act is entitled 'Power to revoke licence' and provides for a process whereby the Commissioner of Police may apply to the Tribunal for an order revoking a licence on the basis that there is proper cause for disciplinary action against a licence holder (including when they no longer meet the requirements to hold a licence, including that they are of good character and are a fit and proper person).
Section 67A of the Security Act is entitled 'Summary power to revoke and suspend licences' and relevantly provides that:
…
(2)If the Commissioner is satisfied that —
…
(c)there is a charge pending in relation to a licensee for a disqualifying offence and that no extenuating circumstances exist,
the Commissioner must give to the licensee written notice of the suspension of every licence held by the licensee —
(d)stating that the licence is, or licences are, suspended under this subsection and —
…
(iii)if the suspension is, or suspensions are, under paragraph (c), referring to the charge on which the decision was based;
and
(e)stating —
(i)the period of time for which the licence, or licences, are suspended; or
(ii)that the suspension is, or suspensions are, until the occurrence of a specified event;
and
(f)advising that the Commissioner will refer the matter to the State Administrative Tribunal within 14 days of the making of the notice,
and the licence is, or licences are, suspended when the notice is received by the licensee.
Under s 67A(2)(c) of the Security Act, if the Commissioner is satisfied that a charge is pending in relation to a 'disqualifying offence' and that no 'extenuating circumstances' exist, the Commissioner must give the notice of suspension (emphasis added).
A 'disqualifying offence' is defined in s 3 of the Security Act as 'an offence of a kind prescribed as being a disqualifying offence'.
Regulation 24 of the Security and Related Activities (Control) Regulations 1997 (WA) (Security Regulations) provides, relevantly, that offences described in Sch 2 to the Regulations are prescribed as being disqualifying offences for the purpose of the definition of disqualifying offence in s 3 of the Security Act.
Schedule 2 of the Security Regulations consists of two divisions. Division 1 lists 'Division 1 offences' which, speaking generally, include the more serious offences under the Criminal Code as well as indictable offences under the Firearms Act 1973 (WA) and Misuse of Drugs Act 1981 (WA), together with certain Commonwealth terrorism offences under the Criminal Code Act 1995 (Cth).
Division 2 of Schedule 2 lists 'Division 2 offences' which, speaking generally, are those less serious offences under the Criminal Code 1913 (WA) as well as certain offences under other legislation.
It is common ground that the respondent has been charged with common assault pursuant to s 313 of the Criminal Code which is a Schedule 2 offence. There is no dispute about this fact or the fact that he has no criminal record. Given there are no circumstances of aggravation which have been alleged, if convicted, the respondent is liable to a maximum penalty of imprisonment of 18 months and a fine of $18,000.
The distinction between a Schedule 1 and Schedule 2 offence is important as regulation 25 of the Security Regulations prescribes disqualifying periods dependent upon the type of offence (Division 1 or 2) in respect of which a finding of guilt occurs. Regulation 25 states as follows:
(1)In this regulation —
Division 1 offence means an offence described in Schedule 2 Division 1;
Division 2 incident, in respect of a person, means an act, omission or course of conduct involving the person which has resulted in the person being charged with one or more offences described in Schedule 2 Division 2.
(2)For the purposes of section 4A, the disqualifying period prescribed in respect of a disqualifying offence committed by a person is —
(a)in the case of a Division 1 offence, unless the finding of guilt in relation to the offence is a spent conviction — 10 years commencing on the date the finding of guilt was made; or
(b)otherwise — 5 years commencing on the date the finding of guilt was made.
(3)Subregulation (2) does not apply to a disqualifying offence described in Schedule 2 Division 2 —
(a)if the offence arose from the first Division 2 incident involving the person; and
(b)no penalty, or a penalty of, or in total of, less than $500 is imposed on the person in respect of the offence and all other offences described in Schedule 2 Division 2 arising from the same incident.
Some interesting points arise in relation to regulation 25. The first is that the general situation is that if a person is convicted of a Division 2 offence, then the disqualifying period is for 5 years. There is no discretion for the Tribunal to determine otherwise. However, 'if the offence arose from the first Division 2 incident involving the person' and 'no penalty or a penalty of less than $500 is imposed in respect of the offence and all other offences described in Schedule 2 arising from the same incident', then no period of disqualification applies.
It is unclear as to why regulation 25 defines a Division 1 offence as 'means an offence in Schedule 2 Division 1' yet refers to a Division 2 offence which arose from an 'incident involving the person'.
The present position therefore is that if the respondent is convicted of the offence of common assault and a penalty is imposed of more than $500, he will be disqualified for 5 years. This cannot be reviewed by the Tribunal. If a penalty of less than $500 is imposed, then no period of disqualification applies.
The role of the Tribunal in this matter is to decide whether the Licences should be suspended pending the determination of the charge by the Magistrates Court. Given there is no dispute that the respondent has been charged with a disqualifying offence, this turns on whether there are 'extenuating circumstances'.
The Tribunal in making this decision sits in its review jurisdiction pursuant to s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). When exercising the review jurisdiction, the Tribunal exercises the functions and discretions of the corresponding decisionmaker and has the discretion (amongst other orders) to affirm, vary or set aside the decision being reviewed (s 29 SAT Act). The nature of review proceedings is by way of a fresh hearing and accordingly the Tribunal may consider additional or new information not before the original decision-maker. The purpose is to produce the correct and preferable decision, as at the time of the review (s 27 SAT Act).
Issue for determination
The only issue for determination is whether the Tribunal is satisfied that extenuating circumstances exist.
Factual background
The Statement of Material Facts (SOMF) states as follows:[5]
[5] Exhibit 1, page 11.
The accused in this matter is a 42 year old male, approximately 170cm with a solid muscular build. The victim in this matter is a 52 year old female, approximately 165cm, with a solid build.
On Sunday 26th November 2023 between 1.35pm and 1.50pm the accused was working for the City of Cockburn as a ranger. As part of his duties he had cause to approach a motor home parked at the Spearwood Public Library car park located at 9 Coleville Crescent, SPEARWOOD, 6163.
The victim was present seated inside her motor home with the registration KO11830.
The accused had cause to approach the victim and explained to her that she was not allowed to camp in this location as it was outside of business hours and illegal. The accused had his body worn camera activated. The accused was stood in front of the door of the motor home.
The victim was stood inside the door frame of her motor home and filmed the interaction on her mobile phone. A verbal disagreement began between the two parties lasting a few minutes.
During the disagreement the accused took a step forward and swung a closed fist with his right hand at the victim. The punch made contact with the hand the victim was holding her mobile phone with and her chest area.
The victim received minor injuries to her hand. The victim attended Fiona Stanley Hospital via Saint Johns Ambulance as a result of the incident.
On Thursday 14th December 2023, the accused attended the Cockburn Police Station to participate in an Audio Electronic Record of Interview as an accompanying person.
The accused was summonsed with the present charge preferred.
Explanation: I tried to grab her phone out of her hand to confiscate it, I did not assault her or touch her[.]
It is not disputed that the respondent does not have a criminal record and that he has entered a plea of not guilty to the charge.
At the hearing the applicant's representative called no oral evidence and also did not provide any evidence relating to the alleged injury to the complainant's hand. The applicant indicated that it was relying on the facts as contained in the SOMF, which along with the video footage in Exhibits 1 and 2, was the totality of the evidence it relied upon.
The BWC Footage (Exhibit 1) was played. The camera was attached to the respondent and therefore showed the actions and demeanour of the complainant and also recorded the voices of both the complainant and the respondent. The footage shows that the respondent approached the complainant as he believed she was camping illegally. The respondent was polite and calmly asked her to move. The complainant escalated very quickly and started shouting in a hysterical manner at the respondent and commenced recording the incident on her phone. The footage shows the respondent remaining calm during the incident but then at the end of the incident moving quickly towards the complainant before the footage ends.
The footage recorded by the complainant on her mobile phone was also played (Exhibit 2). In the Tribunal's view the footage does not show, as the SOMF alleges, that the respondent 'swung a closed fist with his right hand at the victim'. Nor does it show that 'the punch made contact with the hand the victim was holding her mobile phone with and her chest areas'. Exhibit 1 shows the respondent reaching out towards the complainant and then immediately afterwards what appears to be her phone on the ground, the respondent picking the phone up and the complainant screaming at him to 'give me my phone back'.
Submissions of the applicant
The applicant's submissions were that the extenuating circumstances must be directly related to the offence alleged to have been committed and are limited to matters which reduce the magnitude of the wrongdoing. The applicant argued that financial hardship was not an extenuating circumstance and that matters going to a defence were also not an extenuating circumstance. Whilst accepting that common assault was towards the lower end of the categories of offence which are included as disqualifying offences, the applicant nevertheless contended that this was not a trivial incident given:
(a)it occurred in the course of the respondent's duties;
(b)the facts show a loss of control and professionalism; and
(c)the respondent used violence to confiscate the complainant's phone when he had no power to do so.
In opening submissions, the applicant stated it relied on the facts as stated in the SOMF, namely that the respondent punched the complainant with a closed fist. However, in cross-examination and closing submissions the applicant conducted its case based on the respondent's version of events – i.e. that he obtained the phone by force but did not punch the complainant. The applicant did not put to the respondent that he did in fact punch the complainant and, in closing submissions, the applicant made the submission that the use of force was in the taking of the phone without consent.
Evidence of the respondent
The respondent gave evidence that he had worked as a prison officer for the previous 18 years without incident, seven years in New Zealand and the last 11 years in Western Australia at Casuarina Prison. He stated that 'he has lots of experience but that doesn't mean I always do everything right'. He denied punching the complainant. He gave evidence that he confiscated the phone as he believed at the time he could confiscate property which was used for illegal activities and, given that he believed it was a private place, the complainant was not allowed to film him. He said that if he did punch her, then the footage would have recorded her yelling and screaming that he did punch her. He tried to grab the phone which ended up on the ground, he grabbed the phone, and she grabbed his radio which led to a tug of war over the radio. He said in his view if there was an injury to her hand it was as a result of the tug of war.
He stated that he could have done better by walking away from the incident. However, he accepted that he made a mistake despite his training and the situation has taught him that he can do better and in future he would walk away from similar situations.
The respondent also gave evidence that he has been unable to work, he is a father of two children aged 17 and 13 years old and is the main provider. The family is now experiencing financial difficulties – he has been given a reduced mortgage for this month but he is not sure what will happen after that, he is struggling to pay daily bills and feels like a useless father to his kids.
He resigned from his job as a ranger after this experience and has now been offered a new job with a company which offers security for mining services in Newman, one week on and one week off. He stated that he needs his Licences for this job and the job offer expired the next day. His role would be as team leader of a team of three to four people looking after the health and safety of persons who work in the mine including first aid response and emergency services. He confirmed that this position would involve less interaction with members of the public.
Under cross-examination he stated that after speaking to his lawyer he now knows he did not have the authority to take the phone. He maintained that he only made contact with the phone but denied he lost his cool or snapped. He readily agreed that he could have done better and walked away.
The meaning of extenuating circumstances
Previous decisions on the meaning of extenuating circumstances
The Tribunal has previously considered the meaning of 'extenuating circumstances' in the Security Act. Those decisions generally start from a discussion of the meaning of those terms in a criminal or quasi criminal context such as decisions such as Mansfield v Evans [2003] WASCA 193 (Mansfield v Evans). Mansfield v Evans involved an appeal from a sentencing decision and considered the interpretation of s 19B(1)(b)(iii) of the Crimes Act 1914 (Cth) which specifically refers to 'the extent (if any) to which the offence was committed under extenuating circumstances'. Pullin J stated at [20] as follows:
… Extenuating circumstances may be many and varied, but there must be some link between the extenuating circumstances and the commission of the offence. That is because the provision does not allow the court to have regard to extenuating circumstances generally[.]
In Anderson v Racing Penalties Appeal Tribunal of Western Australia & Anor, (unreported, WASCA (Full Bench), Library No 970504C, 3 October 1997) (Anderson) the Court considered the meaning of 'extenuating circumstances' in the Rules of Trotting, r 55A which provided for a minimum period of disqualification unless the Stewards decide otherwise 'having regard to the extenuating circumstances under which the offence [the offence being the drugging of horses in that case] was committed'. His Honour Steytler J stated at page 11 as follows:
… the extenuating circumstances which are there referred to are circumstances which reduce the culpability attaching to the commission of the offence in such a way as to warrant the imposition of a penalty less than the minimum which should ordinarily attach to the offence. It seems to me, in that circumstance, to be necessarily implicit in the rule that the circumstances referred to must be circumstances under which the offence was committed other than those which are ordinarily present in the case of offences of the kind under consideration and which are unusual or exceptional in that sense[.]
Both the above decisions therefore recognise that the concept of extenuating circumstances may exist more generally and do not always have to be limited to the circumstances under which the offence was committed.
In Commissioner of Police and Kanyimbu [2010] WASAT 61 (Kanyimbu), at [13] the Tribunal referred to the statement of King CJ in Nitschke v Halliday (1982) 30 SASR 119, where he stated:
The essential character of an extenuating circumstance under which an offence is committed is that it in some way reduces the culpability attaching to the offender.
The Tribunal noted that that statement was approved by Steytler J in the matter of Anderson and went on to say at [14] as follows:
… That statement must, of course, be adapted to a licensing context and in particular to considerations of whether or not someone is a fit and proper person to hold a licence. It is not appropriate to attempt to make any exhaustive statement of what might constitute extenuating circumstances. What may constitute extenuating circumstances should be developed on a case by case basis, particularly given the range of conduct which can constitute or result in a charge for a disqualifying offence.
At [21] the Tribunal in Kanyimbu went on to say:
In a case such as this where the offence for which a licensee is charged relates to conduct outside activities for which he is licensed, and if the circumstances do not suggest that the licensee has a propensity towards violence which renders him unsuitable to be licensed as a security agent, the circumstances may be regarded as extenuating. For example, that may be the case where there has been a one-off assault not of a particularly severe nature in the context of an emotionally charged breakdown of a relationship.
In Commissioner of Police and Albert [2012] WASAT 34 (Albert) the respondent, after raising as extenuating circumstances that: this was his first offence (drug related); he was dependent upon his security officer's licence for his employment and he was remorseful, ultimately accepted the suspension of his licence. However, the Tribunal stated by way of obiter dicta at [26]:
… The facts raised by the respondent lack the essential character of extenuating circumstances, which is that, individually and collectively, those factors do not reduce the culpability or tend to reduce the culpability attaching to the respondent in committing the offence: (Nitschke v Halliday (1982) 30 SASR 119, Anderson v Racing Penalties Appeal Tribunal of Western Australia & Anor, (unreported, WASCA (Full Bench), Library No 970504C, 3 October 1997; Commissioner of Police and Kanyimbu [2010] WASAT 61)[.]
In the decision of Commissioner of Police and Wheeler [2014] WASAT 9, the Tribunal at [8] stated that it agreed with the authorities in Mansfield and Evans, Kanyimbu and Albert and the statement referred to that the ordinary meaning of 'extenuating' is to serve and make the offence seem less serious and includes circumstances that explain and lessen the seeming magnitude of the offence.
In that case the respondent had been charged with assault occasioning bodily harm and raised the following by way of extenuating circumstances:
(a)The victim of the assault was at the club with the intention of attacking officers 'by his own admission'.
(b)The victim was escorted from the club.
(c)The victim had made threats and intimidated the guards.
(d)The victim was aggressive and threatening and evermore so at an escalating rate before the assault.
The Tribunal said that the facts as alleged by the respondent were very different from those presented in the SOMF and 'which version of the event is proved is for a different jurisdiction to determine' [at 10].
At [11] – [12] the Tribunal stated:
11In the Tribunal's view, the facts referred to by the respondent do not amount to extenuating circumstances. Those facts are not mitigating factors alone. They are facts that go to the elements of the offence with which the respondent has been charged and to the partial and complete defences which the respondent may raise in defence to the prosecution of the charge.
12The extenuating circumstances cannot extend to whether the offence was committed or not, or the strength of the prosecution case.
In Commissioner of Police and Lilii [2014] WASAT 85 (Lilii), Mr Lilii's licences under the Security Act were suspended after he was charged with an offence of grievous bodily harm (it is noted that the victim in that case died after being pushed backwards by Mr Lilii). Member Mr T Carey noted at [22] that most of the authorities dealing with the meaning of 'extenuating circumstances' are concerned with a criminal or quasi criminal context and generally the statutes impose an explicit link between the extenuating circumstances and the commission of the offence. Member Carey went on to state at [23] that although s 67A(2)(c) of the Security Act does not express such a linkage, in his view:
23… extenuating circumstances for the purposes of this provision must nevertheless be concerned with matters capable of reducing the magnitude of wrongdoing normally associated with the commission of offences of the type alleged. This is for two reasons:
1)The ordinary meaning of 'extenuating': The Macquarie Concise Dictionary (3rd ed, 2004) defines 'extenuate' as:
1.To represent (a fault, offence, etc.) as less serious…to extenuate a crime. 2. To serve to make (fault, offence, etc.) seem less serious: extenuating circumstances …
The references in the definition to 'offence' is entirely apt in the context of s 67A(2)(c) of the SRA Act, given the juxtaposition of 'a disqualifying offence' and 'extenuating circumstances.'
2)The scheme of the SRA Act: As I have indicated, where someone is found guilty of a disqualifying offence, he or she is ineligible to hold a licence under the SRA Act. It would be curious if a person charged with a disqualifying offence could rely upon some circumstance unrelated to the offence alleged to have been committed to avoid suspension.
Member Carey went on at [26] to state that the reference in Kanyimbu to 'fit and proper person' and the reference to the factors of the offence being unrelated to the activities for which the person was licensed and also whether or not they have a propensity for violence, 'unnecessary cloud the issue'.
Member Carey went on to say further that extenuating circumstances should be limited to 'factors tending to reduce the degree of wrongdoing normally associated with an offence,' or 'mitigate the seriousness of the offence'. The Member found that none of the factors raised by the respondent in that case amounted to such factors including the fact that the incident did not occur in the course of his employment and that he was the sole income earner. Further, other factors relied on such as the allegation that the victim threw himself at Mr Lilii placing him in a headlock or that the victim was heavily intoxicated were not found to be relevant as they are 'matters seeking exoneration for the grievous bodily harm charge' or 'in other words are elements of his defence to the offence with which he is charged' (at [34]). At [37] the Tribunal stated that it accepted that matters claimed to amount to an absolute defence cannot be extenuating circumstances.
Analysis of extenuating circumstances
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Mohammadi v Bethune [2018] WASCA 98 at [32].
The term 'extenuating circumstances' is not defined in the legislation. Section 67A(2)(c) states 'there is a charge pending in relation to a licensee for a disqualifying offence and that no extenuating circumstances exist ...'
It is noted that the section does not say 'and that no extenuating circumstances exist in relation to the charge'. The section merely refers to 'extenuating circumstances' after an 'and.'
As stated above, the purpose of the Security Act is to provide a scheme of regulation for the security and related industries and thereby provide for the protection of the public.
Under s 67A of the Security Act, the Commissioner may suspend the licence and then must apply to the Tribunal for an order essentially confirming that decision. This can be contrasted with the more general power to revoke licences under s 67 of the Security Act where the Commissioner must apply to the Tribunal for the licences to be revoked.
The previous cases of the Tribunal have concluded that extenuating circumstances are those matters which are 'capable of reducing the magnitude of wrongdoing normally associated with the commission of offences of the type alleged'. Another way it has been expressed is 'factors which mitigate the seriousness of the offence'.
In my view, the presence of the word 'and' in s 67A(2) of the Security Act indicates that there must be some sort of linkage between the circumstances which reduce the seriousness of the offence and the extenuating circumstances.
Further, in my view, the factors which may constitute extenuating circumstances should be developed on a case-by-case basis depending on the circumstances of the particular case.
In this case, there is objective evidence (by way of video footage) of almost the entirety of the incident from the perspective of both parties to the incident which suggests that the facts of the alleged offence are not as they are stated in the SOMF and that, if an offence was committed, it is less serious than has been alleged. This is not a case where the Tribunal is relying on an assessment of the credibility of witnesses, rather it has had regard to the objective material before it and the objective lack of seriousness of the offence.
In the circumstances of this case, I consider that even if the respondent is convicted of the alleged offence (which is itself towards the less serious type of those offences which are categorised as disqualifying offences), in the exercise of sentencing discretion it is likely that the magistrate will take into account mitigating factors such as the lack of seriousness of the offence and the respondent's prior good character and will likely impose a punishment of a fine of less than $500. In the Tribunal's view these are matters which amount to extenuating circumstances.
Further, I consider that whether or not the offence with which the person has been charged is linked to the employment in relation to which the person holds a licence is not determinative of whether extenuating circumstances exist under s 67A(2) of the Security Act – rather each case must be assessed on its facts. Depending on the facts of the particular case, it may be the case that an alleged assault which occurs in a domestic violence context is more serious, and therefore less extenuating, than an alleged assault which occurs during employment under a licence.
Some other interesting questions arise when considering the meaning of extenuating circumstances under s 67A(2) of the Security Act, which are not necessary for me resolve in this case.
The fact that the power under s 67A(2) of the Security Act is a power to suspend licences on an interim basis may be relevant to the proper construction of what are 'extenuating circumstances.' Given that one of the purposes of the legislation is to protect the public, it may be appropriate for the Tribunal to assess the risk posed to the public from a respondent continuing to hold their licence(s) during the period before the criminal case is determined by a court. In this case, I am comforted in my decision by the fact that the risk posed by the respondent appears to be very low given the factors that: this is the first incident of this type, the incident is towards the lower end, his insight into his behaviour and the fact that he is now engaged in a different type of employment which involves less interaction with the public.
It is noted that generally the previous decisions of the Tribunal refer to the broad statement that extenuating circumstances must be those which are capable of reducing the culpability of the offence, and then provide a list of what factors do not amount to extenuating circumstances. For example, factors going to the strength of the elements of the offence, factors going to a complete defence, and financial hardship have been referred to as not being extenuating circumstances. In Kanyimbu the Tribunal gave an example of when extenuating circumstances may arise (namely a one off situation in a domestic relationship context), however this was criticised in the decision of Lilii on the basis that this went more to the 'fit and proper person test.'
However, when considering defences such as provocation and self‑defence, what is said to be a complete defence may also be mitigatory in nature in that even if the defence is not established, the factual circumstances underlying the defence may remain relevant, as they may be taken into account as mitigatory factors. Therefore, depending on the facts of the particular case, the reference to a complete defence not being able to amount to extenuating circumstances may be an artificial distinction in practice and it may well be relevant for the Tribunal to consider matters relevant to the establishment of a defence when considering whether extenuating circumstances exist.
Further, it may be difficult for the Tribunal to assess whether factors which are capable of reducing the magnitude of the offending exist, without undertaking some sort of evaluation of the evidence going to the elements of the offence. In this particular case, there was objective evidence available which went to those elements. It may well be appropriate for the Tribunal to consider, in some cases, the strength of the prosecution case. Again this should be assessed on a case by case basis depending on the facts of the particular case.
Lastly, I agree with the previous decisions of the Tribunal that financial hardship of itself cannot amount to extenuating circumstances. However, in circumstances such as the present case (where for the reasons outlined above it is likely that even if the respondent is convicted, he will not lose his Licences), it may well be that the financial impact the suspension will have on the respondent during the interim period may be taken into account as a factor when determining whether extenuating circumstances exist.
Consideration
The Tribunal is satisfied that extenuating circumstances within the meaning of s 67A(2)(c) of the Security Act exist in this case and that the correct and preferable decision is that the decision of the applicant to suspend the respondent's licences is set aside and substituted with a decision not to suspend the Licences.
Orders
The Tribunal orders:
1.The decision of the applicant made on 18 January 2024 to suspend the respondent's licences pursuant to s 67A(2) of the Security and Related Activities (Control) Act 1996 (WA) is set aside and substituted with the decision not to suspend the licences.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
4 JUNE 2024
6
6