COMMISSIONER OF POLICE and BAIG
[2024] WASAT 66
•10 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: COMMISSIONER OF POLICE and BAIG [2024] WASAT 66
MEMBER: MS A KING, MEMBER
HEARD: 25 JUNE 2024
DELIVERED : 8 JULY 2024
PUBLISHED : 10 JULY 2024
FILE NO/S: CC 356 of 2024
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
USAMA BAIG
Respondent
Catchwords:
Security officer and crowd controller – Licences – Suspension – Review – No extenuating circumstances
Legislation:
Criminal Code Compilation 1913 (WA), s 378, Pt 3
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 67, s 67A, s 67A(2)(c), s 67A(4), s 67A(4)(a), Pt 5, Pt 7, Div 3, Div 4
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 affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr Gad Yaw Coffie and Mr Jacob Orley (representing the applicant) |
| 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 Afoa [2024] WASAT 56
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:
(These reasons for decision were delivered extemporaneously on 8 July 2024 and have been edited only to add headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof.)
The applicant suspended the respondent's security officer and crowd controller licences because of pending charges faced by the respondent for 44 counts of stealing. The respondent disagrees with the decision to suspend his licence and is seeking to be able to continue to work as a security guard.
History of the matter
On 4 June 2024 the Commissioner of Police (applicant) lodged an application pursuant to s 67A(4) of the Security and Related Activities (Control) Act 1996 (WA) (the Security Act) for an order to '[A]ffirm the decision of the Commissioner's delegate to suspend the respondent's licences'. The applicant is required by s 67A(4)(a) of the Security Act to make the application to refer to the Tribunal the reviewable decision to suspend the respondent's security officer and crowd controller licences within 14 days of having made that reviewable decision. Mr Usama Baig the (respondent) opposes the application.
On 28 May 2024, a delegate of the applicant issued to the respondent, a Notice of Licence Suspension (Notice).[1] The Notice suspended the licences SG/CC48777 (Licences) held by the respondent under s 67A(2)(c) of the Security Act.
[1] Exihibit 1, page 7.
The Notice states that the Licences were suspended on the grounds that the respondent had pending charges which are a disqualifying offence, namely stealing (44 counts) and that the delegate of the applicant was satisfied that there were no extenuating circumstances.
Prior to the Notice being served, the respondent was served with a 'Notice of Intention to Suspend Your Licences' on 29 April 2024 which provided him with a period of 14 days to 'giving the details of any extenuating circumstances you believe exist in relation to the pending charge'.
On 25 June 2024 the parties attended a mediation at the Tribunal. The mediation failed to resolve the dispute and the matter was listed for a hearing later the same day.
The parties lodged various documents in relation to the matter and neither party sought to lodge any further material at the time of the hearing. A hearing book was tendered by consent of the parties and marked as Exhibit 1.
At the conclusion of the hearing the Tribunal listed the matter for decision and oral reasons to be delivered on 8 July 2024.
Statutory regime
The Security 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.[2]
[2] The Security Act, page 1.
The Security Act provides Pt 3 for a system of licensing of security activities and various categories of licence holders, including security officers and crowd controllers.[3] Part 7 of the Security Act sets out a system of licensing procedures and Div 3 sets out the criteria for the issue and renewal of licences which includes that the person is of good character and is a fit and proper person to hold a licence and where there is a charge pending in relation to a disqualifying offence, that extenuating circumstances exist.[4]
[3] Section 12 defines 'security officer' and s 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 s 36 provides that a crowd controller must be licensed.
[4] See s 52 and s 52A of the Security Act.
In the matter of Commissioner of Police and Afoa[5] the Tribunal found that the purpose of the licensing regime (amongst others) is to ensure that only suitable persons are able to hold the licences and therefore provide protection to the public. The Member in Afoa[6] referred to the second Reading Speech of the Security and Related Activities (Control) Amendment Bill 2007 (WA) (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.
[5] Commissioner of Police and Afoa [2024] WASAT 56, pages 4 and 5.
[6] Ibid, para 10.
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).[7]
[7] Ibid, para 11.
The decision to suspend the respondent's licences was made pursuant to the Commissioner's power to summarily revoke and suspend licences, found in s 67A of the Security Act.
Section 67A of the Security Act is titled 'Summary power to revoke and suspend licences' 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.
In accordance with s 67A(2)(c) of the Security Act, 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 —
'Disqualifying offence' is defined in s 3 of the Security Act as 'an offence of a kind prescribed as being a disqualifying offence'.
The following offences are prescribed as being disqualifying offences for the purposes of the definition of disqualifying offence in s 3.
(a)an offence described in Schedule 2[.][8]
[8] Regulations, reg 24.
Schedule 2 of the Security and Related Activities (Control) Regulations 1997 (WA) (the Regulations), headed 'Disqualifying offences', comprises two divisions. Division 1, headed 'Division 1 offences', refers, among other offences, to 'The Criminal Code: All indictable offences with a maximum penalty exceeding 3 years imprisonment (whether or not a summary conviction penalty applies in respect of the offence), other than an offence under s 378'.
Division 2 headed 'Division 2 offences' refers to Offences under s 378 of the Criminal Code[9] other than an offence that falls within the description of a special case under the heading 'punishment in special cases' in that section.
[9] Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).
There is no dispute in this matter that the respondent is the subject of a criminal charge for a disqualifying offence (being stealing pursuant to s 378 of the Criminal Code, it being a disqualifying offence as defined in s 3 of the Security Act and being an offence described in Sch 2 to the Regulations.
Issue for determination
It follows that the issue in this matter for determination is whether there are any extenuating circumstances and if the Tribunal should affirm the decision of the applicant.
Matters not in dispute between the parties
The respondent is 33 years of age and married with three children.
The respondent is from Pakistan and became a permanent resident of Australia in 2021.
It is agreed between the parties that the respondent has held a 'Security Officer and Crowd Controller' licence which expires on 6 August 2024 and that he held such a licence at the time of the alleged offending.
It is agreed between the parties that the respondent was charged on 29 April 2024 with 44 counts of stealing pursuant to s 378 of the Criminal Code.[10]
[10] Ibid.
It is agreed that the details of each offence are set out in the statement of material facts[11] and the respondent is said to have made full admissions at the time. At the time of the hearing of these proceedings, the respondent resiled from that position stating that he did not have a proper understanding at the time and gave as an example, one of the items alleged is not correct.
[11] Exhibit 1, pages 15 – 38.
The parties agreed that full reparations for stealing to the Woolworths Group are calculated in the total sum of $752.10 and that the last offence occurred on 11 March 2024. It is agreed that the sum has not been paid by the respondent.
It was agreed between the parties that on 10 April 2017 the respondent committed the offence of 'no authority to drive' and was fined $400 and disqualified for 9 months.
It is not disputed that the respondent has not entered a plea in relation to the current charges of stealing and that the matter has been adjourned twice to enable the respondent to obtain legal advice.
The matter is next before the Magistrates Court on 16 July 2024.
Submissions of the applicant
At the hearing the applicant's representative did not call any oral evidence and relied on the documents[12] lodged with the Tribunal and the matters agreed between the parties. The applicant's submissions in sum were that no extenuating circumstances existed in relation to the matter and the decision of the Commissioner of Police should be affirmed.
[12] Exhibit 1, page 42.
The applicant referred to para [23] of Commissioner of Police and Lilii[13] and submitted that any 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.[14] It does not matter that the offending in the present case did not occur in the course of the respondent's employment. That in it itself, does not amount to extenuating circumstances.[15]
[13] Commissioner of Police and Lilii [2014] WASAT 85 at [23].
[14] Ibid.
[15] Ibid.
The applicant further referred to the matter of Afoa[16] where the Tribunal found that similarly, financial hardship of itself does not lead to the existence of extenuating circumstance.[17]
[16] Commissioner of Police and Afoa [2024] WASAT 56.
[17] Commissioner of Police and Afoa at [68].
It was submitted by the applicant that the determination of whether extenuating circumstances exist in relation to a disqualifying offence does not extend to the likely outcome of the criminal charges. The intent of parliament was not the use of the power to pre-empt the decision of the Magistrate.
In the present circumstances the respondent is starting to challenge some of the evidence and his position may shift further prior to the hearing in the Magistrates Court. Because of this, any potential outcome in that court is an irrelevant consideration in determining whether extenuating circumstances exist.
The applicant noted that in the present case there was not a single offence but multiple incidents of offending. In accordance with the Detected Incidents Report[18] 60 separate transactions were recorded over more than 25 different dates. The respondent was noted as having attended multiple stores owned in various suburbs operated by Woolworths.
[18] Exhibit 1, page 82.
Further, the behaviour in this matter cannot be characterised as a reaction to a circumstance and the information in the letter of MSS Security[19] cannot amount to extenuating circumstances as it is written after the alleged offending occurred and goes to his character rather than the circumstances of his alleged offending.
[19] Exhibit 1, page 84.
Similarly, the applicant submitted that the report from Mr Ian Lawrence Kerr[20] does not establish any matters in mitigation. All counselling sessions occurred after the alleged last offence and speaks to the likely negative impact of the outcome of the criminal proceedings upon him and his family.
[20] Exhibit 1, page 90.
The applicant referred to the email of the respondent[21] which attempts to explain the context of his behaviour stating that he was experiencing extreme stress and emotional turmoil and personal pressures which weighed heavily on him leading him to seek a momentary escape.
…
The actions taken were impulsive and driven by a temporary lapse in judgment rather than a deliberate intent to deceive or to take intentionally. The situation was a result of a temporary lapse in judgment rather than a calculated act of deceit where the possibility of being stopped by Woolworth] was always present at each time of the event.[22][.]
[21] Exhibit 1, page 50.
[22] Ibid.
The Tribunal has difficulty accepting that submission because of the repeated and consistent nature of the alleged offending.
In summary, it was submitted that no extenuating circumstances have been established.
Submissions of the respondent
The respondent gave evidence to the Tribunal that he was first issued with the licences in 2014 and has never been in this situation before. He is required to apply for renewal of his licences about every 3 years.
The respondent stated he had been going through some emotional experiences. He has now had some counselling and his counsellor is available to him in the future should he be required.
He has no criminal record prior to the traffic violation matter.
He was given two weeks to respond to the Commissioner and referred the Tribunal to his email dated 13 May 2024.[23] Further information provided detailed the huge impact a negative decision would have on the respondent's family, and he requested that there be a delay in the proceedings.
[23] Exhibit 1, page 8.
The respondent relies on the letters of support referred to above.[24]
[24] Exhibit 1, pages 84 and 90.
The respondent submitted he is proud to work as a security person and this is not a representation of himself.
Consideration by the Tribunal
The role of the Tribunal in this matter is to decide whether the respondent's licences should continue to be suspended pending the determination of the charges 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 has previously considered the meaning of 'extenuating circumstances' in the Security Act and I refer to the decision of Afoa[25] which sets out a useful summary of the relevant cases.
[25] At [13] above.
The decision starts with a discussion of Mansfield v Evans [2003] WASCA 193 (Mansfield v Evans) 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 relied on and the commission of the offence. This 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[.]
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 Kanyimbu [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 Commissioner of Police and Lilii, Mr Lilii's licences under the Security Act were suspended after he was charged with an offence of grievous bodily harm. Member Carey went on to state at [23]:
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. o 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'.
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'.[26]
[26] Afoa at para 51
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.
In the matter of Afoa[27] the Tribunal referred to the primary object of statutory construction which 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].
[27] Ibid.
I accept the applicant's submissions that 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.
I am satisfied that the sum of the previous cases of the Tribunal have confirmed 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' or alternatively, are factors which mitigate the seriousness of the offence.
In the present circumstances I accept the evidence of the respondent that the pending charges are embarrassing for him and that he deeply regrets his actions.[28]
[28] Exhibit 1, page 8.
The respondent provided a letter of support from his employer having been made aware of the 'transgressions of the law' and noting that any convictions will have the ability to impact on the respondent's future employment. I accept that evidence.
The letter of Mr Kerr dated 22 May 2024 likewise demonstrates that the respondent made his counsellor aware of the pending charges and further provides an opinion, that the respondent is of very good character and has a level of remorse. The respondent reported to Mr Kerr that lately he had unusually high bills, rent and living expenses.[29]
[29] Exhibit 1, page 90.
Adopting the approach of the previous decisions[30] of the Tribunal I find that the respondents financial hardship of itself cannot amount to extenuating circumstances and that remorse and previous good character are separate matters which do not mitigate the seriousness of the offence.[31] Likewise I am satisfied and so find that the impact on him and his family of a finding of guilt also is not capable of reducing the magnitude of wrongdoing normally associated with the commission of the offences.
[30] Refer to above at
[31] Lilii at [30] and [31].
The available evidence to the applicant includes closed-circuit television footage of the respondent and refers to 60 separate transactions with a value in excess of $1,900. At the time of this hearing, he had been charged with 44 counts to the value of $752.10.[32]
[32] Exhibit 1, page 82.
The evidence of the respondent leads me to believe that he may challenge some of the facts contained in the statements of material facts or seek to defend one or more of the alleged offences but does not seek to defend all the charges. Whilst I note the approach taken in Afoa I make no finding on whether those matters are a relevant consideration. In my view the likely outcome of the proceedings in the Magistrates Court in the current circumstances cannot be anticipated. The case of Afoa is distinguishable as in that case there was a single charge and on one occasion.
The email of the respondent dated 13 May 2024[33] states that he is committed to demonstrating accountability and making amends for any harm caused. The respondent adds that he is not trying to justify or excuse his behaviour but seeks to explain it in the context in which it occurred.
[33] Exhibit 1, page 8.
The object of the Security Act for the licensing of persons engaged in security work, investigation or surveillance work and crowd control is the protection of the public. Section 67A of the Security Act provides summary powers to the Commissioner following notice, and in the case of pending charges for a disqualifying offence (where no extenuating circumstances exist) to suspend a licence if of the opinion that the safety or welfare of members of the public is or may be at risk from the continuance in force of a licence.
I have considered all of the evidence and submissions made by the parties. I am satisfied that the respondent has failed to demonstrate the presence of any extenuating circumstances. Accordingly, the decision to suspend the licences held by him is the correct and preferable decision and must be affirmed.
Conclusion
The Tribunal will issue the following order.
Orders
The Tribunal orders:
1.The decision of the applicant made on 28 May 2024 to suspend the respondent's licences pursuant to s 67A(2) of the Security and Related Activities (Control) Act 1996 (WA) is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS A King, MEMBER
10 JULY 2024
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