COMMISSIONER OF POLICE and ALBERT
[2012] WASAT 34
•15 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: COMMISSIONER OF POLICE and ALBERT [2012] WASAT 34
MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 15 FEBRUARY 2012
FILE NO/S: VR 217 of 2011
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
MICHAEL STEPHEN ALBERT
Respondent
Catchwords:
Suspension of security officer's licence Disqualifying offences No evidence or information of extenuating circumstances Statutory review
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Security and Related Activities (Control) Act 1996 (WA), s 3, s 7, s 7(1)(b), s 16, s 67A, s 67A(2), s 67A(4)
Security and Related Activities (Control) Regulations 1997 (WA), reg 24, Sch 2 Div 1, Sch 2 Div 2
State Administrative Tribunal Act 2004 (WA), s 78
Result:
Applicant's decision to suspend respondent's security officer's licence is affirmed by the Tribunal
Category: B
Representation:
Counsel:
Applicant: Ms A Sukoski
Respondent: Mr T Allen
Solicitors:
Applicant: Licensing Enforcement Legal Unit
Respondent: Legal Aid Commission of Western Australia
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 Kanyimbu [2010] WASAT 61
Nitschke v Halliday (1982) 30 SASR 119
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 6 December 2011 the Commissioner of Police made an application to the State Administrative Tribunal pursuant to s 67A(4) of the Security and Related Activities (Control) Act 1996 (WA). The Commissioner of Police sought an order affirming a decision of the Commissioner of Police's delegate made on 29 November 2011 suspending Mr Michael Stephen Albert's security officer's licence, pursuant to s 67A(2) of the Security and Related Activities (Control) Act 1996 (WA). The decision was made upon the basis that Mr Albert had been charged with a disqualifying offence as defined by s 3 of the Security and Related Activities (Control) Act 1996 (WA) and there were no extenuating circumstances.
The Tribunal affirmed the Commissioner of Police's decision to suspend Mr Albert's security officer's licence from the date he received the notice or from two days following the issue of the notice of suspension until 14 days following the determination of the disqualifying charges by a court.
The proceedings
The Commissioner of Police (applicant) made an application to the Tribunal pursuant to s 67A(2) of the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act) on 6 December 2011 and within the 14 day period from the date of the decision as proscribed by s 67A(4) of the SRAC Act for review of a decision made on 8 November 2011. The grounds of the application are that Mr Albert (respondent):
… has been charged with Possession of Prohibited Drugs with Intent to Sell or Supply pursuant to section 6(1)(a) of the Misuse of Drugs Act 1981 which states that a person who with intent to sell or supply it to another, has in his possession a prohibited drug commits a crime. Schedule 2 Division 1 of the Security and Related Activities (Control) Regulations 1997 states that all indictable offences under the Misuse of Drugs Act are a disqualifying offence.
The grounds of the application further state that the applicant 'is satisfied there are no extenuating circumstances that exist' justifying the nonsuspension.
The application was listed for a directions hearing on 22 December 2011. The respondent appeared by telephone. The application was adjourned to a further directions hearing on 12 January 2012 to enable the respondent to obtain legal advice and representation. On 12 January 2012, the respondent appeared by his counsel, Mr Allen, who informed the Tribunal that the respondent accepted the suspension of the licence. Counsel for the applicant indicated that the respondent had pleaded guilty to the charge and was awaiting sentence. No documents were supplied in support of that assertion, but no objection was made by Mr Allen on behalf of the respondent.
On 12 January 2012 the Tribunal directed that the application be determined entirely upon the papers filed in the Tribunal unless there was a contrary subsequent order.
The facts
Mr G Hicks, a licensing officer appointed by the applicant pursuant to s 7 of the SRAC Act, issued a certificate dated 29 November 2011 to establish that the respondent is the holder of a security officer's licence, which on its face is valid until 28 June 2014.
On 2 November 2011 the respondent was charged with possession of prohibited drugs with intent to sell or supply pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MD Act). A statement of material facts is annexed to the application. Briefly, it is asserted that the respondent was found to be in possession of 7.5 grams of cannabis in his glove. On 12 January 2012, the Tribunal was informed by counsel for the applicant and the respondent that the respondent had entered a plea of guilty to the charge laid.
On 14 November 2011 the applicant wrote to the respondent. The letter bears the reference:
NOTICE OF INTENTION TO SUSPEND YOUR LICENCE.
The letter was issued by Mr G Marti, a licensing officer appointed pursuant to s 7(1)(b) of the SRAC Act by the applicant. The letter notifies the respondent of Mr Marti's intention (as the applicant's s 7(1)(b) SRAC Act delegate) to suspend the respondent's security officer's licence because of the pending charge laid against the respondent referred to above. Mr Marti asserts that the charge is a disqualifying offence for the purposes of s 3 of the SRAC Act and Sch 2 of the Security and Related Activities (Control) Regulations 1997 (WA) (Regulations) 'and that no extenuating circumstances exist'.
Mr Marti invited the respondent to respond within 14 days from the date of the letter and to provide Mr Marti with details of any:
…extenuating circumstances which you believe exist in relation to the pending charges (emphasis added).
Mr Marti concluded his letter with an assurance to the respondent that any:
submissions will be considered in conjunction with the material originally relied upon to consider the suspension of your licence.
On 28 November 2011 the respondent wrote a letter as follows:
To whom it may concern
My name is Michael Albert[.] I have been employed as a Security Guard for Total Task International for approximately 3 months. Just recently I have been charged with carrying prohibited drugs[. I]t is a[n] offense [sic] that I am deeply ashamed and embarrassed of and I apologize deeply for this and for any inconvenience this may have caused. This is my first and last offence, and it's usually out of character for me so I ask you [to] please reconsider lifting the intention of suspending my license[.] I know what I have done is wrong but my employment with Total Task is my livelihood, my only source of income, and [a] great source of motivation for me.
If my license [sic] is not suspended I promise nothing like this will happen again[. L]ike I stated before I am truly deeply ashamed by my actions[. I]t was wrong and I've learnt from this incident.
On 29 November 2011 Mr Hicks issued a letter to the respondent, the reference being:
NOTICE OF LICENCE SUSPENSION.
In that notice, Mr Hicks states:
… I hereby serve notice pursuant to s 67(A) (2) of the Act, informing you of my decision to suspend your Security Officer's Licence following a recent charges [sic] being preferred [sic] against you for alleged Possession of Prohibited Drugs with Intent to Sell or Supply.
Licensing Officer Hicks states that he is satisfied that the charge amounts to a disqualifying offence for the purposes of s 3 of the SRAC Act and Sch 2 of the Regulations made pursuant to that Act, and he is satisfied that there are 'no extenuating circumstances'. Mr Hicks also states that the suspension will take effect immediately from the receipt of the notice or, alternatively, within two days from the date of the notice, whichever occurs first, and will remain in force until 14 days following the conclusion of the pending charges having been determined by a court. Since that date, the applicant has indicated to the relevant court that he intends to plead guilty to the charge and is awaiting sentence. No notice of conviction has been issued and supplied to the Tribunal in this matter.
In addition, the respondent has, through his counsel, Mr Allen, indicated to the Tribunal that he accepts the suspension of the respondent's security officer's licence.
The law
Section 67A(2) of the SRAC Act relevantly provides:
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. (Emphasis added)
…
Section 3 of the SRAC Act provides that a licensee 'means a person who holds a licence', and that licence 'means a licence under this Act'. Section 3 of the SRAC Act also provides that a security officer's licence is one issued for the purposes of s 16 of the Act. The respondent's security officer's licence is therefore one which may be the subject of an order for suspension pursuant to s 67A of the SRAC Act.
A disqualifying offence is an offence prescribed as such in the Regulations made pursuant to the SRAC Act (see s 3 of the SRAC Act). Regulation 24 provides, relevantly, that the offences listed in Sch 2 of the Regulations are disqualifying offences. Schedule 2 of the Regulations provides for two categories of offences:
1)Division 1 disqualifying offences;
2)Division 2 disqualifying offences.
Division 1 is expressed to apply to all indictable offences under the MD Act. Division 2 is expressed to apply to all offences under the MD Act other than indictable offences. The charge in issue is an indictable offence and a Division 1 disqualifying offence.
The review
The Tribunal is satisfied that the charge laid against the respondent pursuant to s 6(1)(a) of the MD Act is a 'disqualifying offence' for the purposes of the SRAC Act. The provisions of s 67A of the SRAC Act compel the applicant to issue a notice of suspension to the respondent where there are no extenuating circumstances. In this case, the applicant issued a notice of intention to the respondent dated 14 November 2011 revealing to the respondent the applicant's pending decision to suspend the respondent's security officer's licence in the event that there were no extenuating circumstances. The applicant's notice of intention called upon the respondent to produce any information or material that the respondent considered might amount to extenuating circumstances so that the applicant could consider that information before making a decision.
The respondent originally contended that he had extenuating circumstances, being that:
1)this was his first offence;
2)he was dependent upon his security officer's licence for his employment; and
3)he was remorseful for the commission of the offence.
The applicant implicitly considered that such factors did not amount to extenuating circumstances in this matter.
Ultimately, at the directions hearing on 12 January 2012, the respondent, through his counsel, implicitly accepted that such factors do not amount to extenuating circumstances as his counsel informed the Tribunal that he did not oppose the suspension and had pleaded guilty to the charge laid. Given that position, it is not necessary for the Tribunal to determine whether such factors amount to extenuating circumstances.
However, to the extent that it is necessary to review that aspect of the decision, notwithstanding the implicit admissions by the respondent's counsel or position of the respondent, the Tribunal concludes that such factors are not extenuating circumstances. 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, King CJ; 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). The Tribunal concludes that the factors raised by the respondent in his letter dated 28 November 2011 do not amount to extenuating circumstances and the applicant was correct to conclude that no extenuating circumstances existed.
In the Tribunal's view, the applicant has applied the law correctly to the facts as outlined herein, and the applicant was compelled to suspend the respondent's security officer's licence and issue the notice of suspension pursuant to s 67A(2) of the SRAC Act.
Order
The decision made on 29 November 2011 by the applicant to suspend the respondent's security officer's licence made 29 November 2011 is affirmed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS NATASHA OWEN-CONWAY, MEMBER
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