COMMISSIONER OF POLICE and BARKMAN - [2012] WASAT 16

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)

CITATION: COMMISSIONER OF POLICE and BARKMAN [2012] WASAT 16

MEMBER: MS N OWEN-CONWAY (MEMBER)

HEARD: 12 JANUARY 2012

DELIVERED : 23 JANUARY 2012

FILE NO/S: VR 216 of 2011

BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
BENJAMIN JOHN BARKMAN
Respondent

Catchwords:

Suspension of security installer's licence Disqualifying offences No evidence or information of extenuating circumstances

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 378, s 378(7)
Security and Related Activities (Control) Act 1996 (WA), s 3, s 7, s 7(1)(b), s 18, s 67A, s 67A(2), s 67A(4), s 67B
Security and Related Activities (Control) Regulations 1997 (WA), reg 24, Div 1 Sch 2

Result:

The applicant's decision to suspend the respondent's security installer's licence is affirmed

Category: B

Representation:

Counsel:

Applicant: Ms A Sukoski
Respondent: No appearance

Solicitors:

Applicant: Licensing Enforcement Legal Unit
Respondent: N/A

Case(s) referred to in decision(s):

Nil

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 Benjamin John Barkman's security installer'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 Barkman had been charged with disqualifying offences 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 Barkman's security installer's licence from the date when 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. The grounds of the application are stated to be that Mr Barkman (respondent) 'has been charged with 20 counts of Stealing as a Servant pursuant to s 378(7) of the Criminal Code [Act Compilation Act] 1913', being disqualifying offences for the purposes of the SRAC Act and there being 'no extenuating circumstances' justifying the nonsuspension of the respondent's security installer's licence.
The application was listed for a directions hearing on 22 December 2011. Although there was no appearance by the respondent on that occasion, the presiding member was satisfied that the application had been served upon him as he had written to the Tribunal on 20 December 2011 acknowledging the proceedings and the directions hearing listed for 22 December 2011. The application was adjourned to a further directions hearing on 12 January 2012, and on that day the respondent made no appearance. However, the respondent again wrote to the Tribunal on 12 January 2012 acknowledging the proceedings, and the directions hearing listed that day indicated that he did not intend to oppose the application.
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 installer's licence, which on its face is valid until 18 April 2014.
On 22 September 2011 the respondent was charged with 20 counts of stealing as a servant pursuant to s 378(7) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code). The applicant has annexed a statement of material facts concerning the total number of counts of the s 378(7) offences with which the respondent was charged on 22 September 2011. Briefly, the respondent was employed as an accredited locksmith. In summary, each count of stealing as a servant alleges that the respondent failed to account to his employer for monies given to him for the benefit of the employer, and that the respondent misused his position to alter the accounting records maintained by his employer to avoid detection of his conduct. The offences are alleged to have occurred between 12 November 2009 and 24 March 2010. The total sum of monies in respect of which the respondent is alleged to have diverted to his own use is $1,944.20.
The charges have not yet been heard and determined.
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 Licensing Officer Marti's intention (as the applicant's s 7(1)(b) SRAC Act delegate) to suspend the respondent's security installer's licence because of the pending charges laid against the respondent referred to above. Licensing Officer Marti asserts that the charges are disqualifying offences 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'.
Licensing Officer 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).
Licensing Officer 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.
No information at all was provided by the respondent to the applicant.
On 29 November 2011, Licensing Officer Hicks issued a letter to the respondent, the reference being:
NOTICE OF LICENCE SUSPENSION.
In that notice, Licensing Officer Hicks states:
… I hereby serve notice pursuant to s 67(A)(2) of the Act, informing you of my decision to suspend your Security Installer's Licence following a recent charges [sic] being preferred [sic] against you for alleged Stealing as a Servant.
Licensing Officer Hicks states that he is satisfied that the charges amount to disqualifying offences 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'. Licensing Officer 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.
On 20 December 2011 the respondent wrote to the Tribunal by facsimile and stated:
I am writing to you in regards to the hearing that is scheduled for 22 December 2011. I am [c]urrently unable to make it to the hearing, as I have recently started a new job and have no leave available yet. I would also like to bring to your attention that I have tried on two different occasions to turn in my security licence and have been told on both occasions that it can't be turned [in to] a police station.
Although I disagree with the way this has been handled, I am, and have been willing to turn in my licence. I just don't know where to hand it in.
The presiding member directed that the directions hearing be adjourned to 12 January 2012 'pending further discussions between the parties regarding the basis on which the applicant may voluntarily hand his security licence and crowd controllers licence back to the respondent [sic] Commissioner'.
At the hearing on 12 January 2012, the applicant's counsel informed the Tribunal that she had had no communication with the respondent. She added that she believed that what the respondent intended to do was hand back his identification card and any documents concerning his security installer's licence, rather than attempt to avoid the suspension by volunteering to cancel the respondent's security installer's licence.
The presiding member intended to refer the respondent's security installer's licence. The Tribunal is satisfied from the correspondence both on 20 December 2011 and 12 January 2012 that, in fact, what the respondent wanted to do was ascertain where, physically, he could return his identity card and any documents concerning his licence and that he had no objection to the decision to suspend his security installer's licence.
On 12 January 2012 the respondent wrote to the Tribunal:
I am writing to you in regards to the hearing that is scheduled for 12 January 2012. I am again [c]urrently unable to make it to the hearing, as I have recently started a new job and have no leave available yet. I would also like to bring to your attention that I have tried on two different occasions to turn in my security license [sic] to two different [p]olice stations and have been told on both occasions that it can't be turned in to a police station.
Although I disagree with the way this has been handled, I am, and have been willing to turn in my license [sic]. I just don't know where to hand it in. I do not believe we need to waste everyone's time and money [w]hen [a]ll I need is to be told where to turn my license [sic] in. If I do not here [sic] from your department in the next few days I will just be posting all the relevant information to the commercial licensing department.

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 installer's licence is one issued for the purposes of s 18 of the SRAC Act. The respondent's security installer'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; and
2)Division 2 disqualifying offences.
Division 1 of Sch 2 of the Regulations relevantly refers to offences under s 378 of the Criminal Code if the offence falls within the description of a special case under the heading 'Punishment in special cases' in that section.
Section 378(7) of the Criminal Code appears under the heading 'Punishment in special cases'.
The pending offences with which the respondent has been charged, therefore, are Division 1 disqualifying offence.

The review

The Tribunal is satisfied that any one of the 20 pending charges of stealing as a servant made pursuant to s 378(7) of the Criminal Code is a 'disqualifying offence' for the purposes of the SRAC Act. In that case, 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 dated 14 November 2011 to the respondent revealing to the respondent the applicant's pending decision to suspend the respondent's security installer'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.
Upon the application for a statutory review of the applicant's decision to suspend, the respondent provided the Tribunal with no information concerning any extenuating circumstances.
In the circumstances of this particular case the applicant was compelled by s 67A(2) of the SRAC Act to suspend the respondent's licence. In the Tribunal's view, the applicant has applied the law correctly to the facts as outlined herein, and there being no information made available to the applicant (and the applicant not being aware of any information) concerning any extenuating circumstances in the respondent's favour, the applicant was compelled to suspend the respondent's security installer's licence and was compelled to issue the notice of suspension pursuant to s 67A(2) of the SRAC Act.

Other matters

The applicant's letter dated 29 November 2011 notifying the respondent of the applicant's decision to suspend the respondent's security installer's licence concludes with a direction to the respondent that he is to deliver his licence and identity card to a member of the Western Australian Police within 24 hours of the suspension taking effect. The Tribunal notes that the power to make this direction is found in s 67B of the SRAC Act. The Tribunal notes that the respondent has informed the Tribunal that he has attempted to comply with this direction but the police stations where he has attended to hand in his licence and identity card have refused to accept the same. Counsel for the applicant informed the Tribunal on 12 January 2012 that the respondent could not hand in his identity card and licence at a police station. Assuming that 'a member of the Western Australian Police' was in attendance at the police stations where the respondent attended, the respondent seems to have made all reasonable efforts to comply with the direction in Licensing Officer Hick's letter of 29 November 2012.

Order

The decision made by the applicant to suspend the respondent's security installer's licence made 29 November 2011 is affirmed.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS NATASHA OWEN-CONWAY, MEMBER