COMMISSIONER OF POLICE and DELBOST
[2007] WASAT 315
•13 DECEMBER 2007
COMMISSIONER OF POLICE and DELBOST [2007] WASAT 315
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 315 | |
| SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) | |||
| Case No: | VR:194/2007 | 21 NOVEMBER 2007 | |
| Coram: | MR T CAREY (MEMBER) | 12/12/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application unsuccessful | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER OF POLICE ROBERT LAWRIE DELBOST |
Catchwords: | Security officers Security installer's licence Disciplinary action Offences alcoholrelated and course in responsible use of alcohol undertaken |
Legislation: | Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 67 |
Case References: | Tavelli v Johnson (Unreported, Supreme Court of WA; Library No 960693; 25 November 1996) |
Orders | The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : COMMISSIONER OF POLICE and DELBOST [2007] WASAT 315 MEMBER : MR T CAREY (MEMBER) HEARD : 21 NOVEMBER 2007 DELIVERED : 13 DECEMBER 2007 FILE NO/S : VR 194 of 2007 BETWEEN : COMMISSIONER OF POLICE
- Applicant
AND
ROBERT LAWRIE DELBOST
Respondent
Catchwords:
Security officers - Security installer's licence - Disciplinary action - Offences alcoholrelated and course in responsible use of alcohol undertaken
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 67
Result:
Application unsuccessful
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Category: B
Representation:
Counsel:
Applicant : Sgt S Bagley
Respondent : Mr D Schapper
Solicitors:
Applicant : WA Police
Respondent : Derek Schapper
Case(s) referred to in decision(s):
Tavelli v Johnson (Unreported, Supreme Court of WA; Library No 960693; 25 November 1996)
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Summary of Tribunal's decision
1 The respondent committed a number of offences over the past five years, including disorderly conduct, obstructing police and driving offences. They were all committed at a time when the respondent was under the influence of alcohol. They formed the basis of the application to the Tribunal seeking disciplinary action in relation to his security installer's licence on the ground that the applicant was no longer of good character and a fit and proper person.
2 The Tribunal analysed the relevant factors in considering whether a person who had criminal convictions may be regarded as a fit and proper person to hold a licence. After considering those factors, it decided that the respondent should continue to be regarded as a fit and proper person for that purpose. Significant in the Tribunal's reasoning was that the respondent had identified his excessive alcohol use on occasions as the cause of his transgressing and that, at his employer's suggestion, he had addressed this by undertaking a training course in the responsible use of alcohol. The Tribunal was prepared to accept that he would control his drinking habits in future and there would be no repeat of his offending behaviour.
Introduction
3 This is an application under s 67(1) Security and Related Activities (Control) Act 1996 (WA) (Act) in which the applicant alleges that there is proper cause for disciplinary action as mentioned in s 67(1a) of the Act against the respondent, who is the holder of a security installer's licence under the Act. The applicant seeks the revocation of that licence. It relies upon s 67(1a)(a), and specifically that the licensee no longer meets the requirement of s 52(c) of the Act that licensees be of good character and a fit and proper person to hold a licence.
4 The respondent, who is 23 years old, has held his licence since 11 October 2002. He uses his licence in his occupation as an apprentice locksmith. At the time that he first applied for the licence, he disclosed a conviction for disorderly conduct. His security installer's licence was renewed on 11 October 2005.
5 In August 2005, the respondent was convicted of driving with a blood alcohol level greater than 0.08%, for which his driver's licence was disqualified for five months and he was fined $600. On
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- 11 December 2005, the respondent was charged with a number of offences arising from, broadly, one incident. The charges were:
• giving false details to police;
• driving an unroadworthy vehicle;
• driving a motorcycle without a helmet;
• failing to stop;
• reckless driving;
• driving with a blood alcohol level exceeding 0.08%; and
• driving under suspension.
7 On 30 June 2007, the respondent was charged with a number of offences, again arising broadly from the one incident. The charges were:
• disorderly conduct;
• breaching a move-on notice; and
• obstructing police.
8 The charges were dealt with on 4 July 2007. The respondent was convicted on each charge and fined a total of $900.
9 For the sake of completeness, on 23 October 2002, the respondent was convicted of disorderly conduct, for which he received a fine of $100 and a spent conviction; and on 26 September 2003, he was convicted of giving false personal details to police for which he received a fine of $100.
10 The applicant regards the respondent's convictions as being of sufficient moment to disqualify him as a person of good character and fit and proper to hold a security installer's licence. It submits that the public has an expectation and a right to believe that the holder of a security installer's licence is beyond reproach in terms of integrity and honesty, and the respondent's convictions are contraindicative in that regard. Further, it is said, the respondent's general behaviour shows he has a disregard for the law and an anti-police attitude.
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11 In order to consider the applicant's submissions (and indeed the respondent's response, to which reference will be made shortly) it is necessary to delve into the respondent's offending behaviour and the factors leading to it.
The respondent's convictions and underlying factors
12 Although the applicant relies upon the totality of the respondent's offending behaviour, it is his convictions in August and December 2005 and June 2007 which attain primary significance. Thus, the 2005 offences indicated that the respondent had failed to learn from his August 2005 conviction for drink driving when he was charged and convicted with another drink driving offence, but this time he was also driving recklessly whilst under suspension. The 2007 offences occurred at a time he was highly intoxicated, the respondent was abusive towards police, he disobeyed a move-on notice, he obstructed a police officer as he was attempting to move off on his bicycle to another call, and displayed aggressive behaviour towards police when arrested, including offering as an explanation for his conduct that "I just [expletive] hate police". As counsel for the applicant pointed out, the respondent has now been to court on five separate occasions, and, it was submitted, the respondent's incapacity to modify his behaviour was of continuing concern.
13 The respondent filed his own witness statement and gave oral evidence at the hearing. His statement acknowledged each of the convictions to which I have referred, and asserted that each of the offences was committed while the respondent was substantially under the influence of alcohol. The December 2005 offences arose out of the respondent's "skylarking" use of a 110cc mini-cycle which was incapable of being licensed to operate on the road, in relation to which, he said, there was little danger to anyone other than himself. Regarding the June 2007 events, he said that he was so much under the influence of alcohol that he cannot remember much of what happened. Under cross-examination, he said that the offences occurred at the end of a 6 hour drinking session. He specifically denied that he had a problem with the police, saying that in his occupation he often dealt with the police and got on well with them. He could not explain why under the influence of alcohol he would have voiced a hatred for police, which was not indicative at all of his true attitude.
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14 The respondent's statement expressed remorse for his misconduct and noted that he pleaded guilty at the first court date on each occasion. It acknowledged that he can behave stupidly whilst under the influence of alcohol, and said that at his employer's suggestion he was undergoing an alcohol education course with the Salvation Army. The respondent said that he mainly drinks on the weekend with friends and does not drink every day. In his oral evidence, Mr Delbost said that he had now completed the course and that as a result he understood that it was possible to enjoy yourself without drinking or drinking to excess and there were better things to do on the weekend such as playing more sport which he was doing. Under cross-examination, he accepted that he had only commenced the alcohol training course after he had received a warning that his security agent's licence was under review, but said that until then he hadn't appreciated that he had any problem with his alcohol use.
15 The respondent filed a statement of Michael Stronach, a counsellor with the Salvation Army which confirmed the respondent's undertaking of counselling sessions with him (at the time of the statement he had undertaken the first three of five sessions). Mr Stronach said that the respondent appeared not to have an alcohol problem in the sense that he was an alcoholic, but that when he drank he drank too much too quickly. His statement referred to concentrating on teaching the respondent simple techniques to slow and dilute his consumption of alcohol, so that he can continue to enjoy drinking without becoming drunk and conducting himself inappropriately.
16 The respondent also filed a statement of Rodney Croot, his current employer. Mr Croot is the managing director of a locksmithing company which has employed Mr Delbost since November 2004. He said that the respondent is a good worker and has the making of a good tradesman locksmith. He also said that there had not been significant issues with absenteeism and that any alcohol problem is not apparent at work. Under cross-examination, Mr Croot made clear that he was generally aware of the respondent's convictions, both prior to his employment with his company and subsequently. The loss of the respondent's driver's licence was something which impacted upon his work, although it was manageable, and Mr Croot made clear that losing his security installer's licence would further compromise his value as an employee. Mr Croot gave realistic and credible evidence concerning the maturing process which he saw often in young male employees such as Mr Delbost, and noted that both he and his partner had spoken seriously with the respondent regarding his attitude and the potential for any further offences to derail his career. He regards the steps which the respondent has taken
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- to have already been reflected in a change of attitude, and expressed confidence that the respondent has made the necessary adjustment to ensure his place as a law-abiding member of society.
Consideration of the respondent – of good character and a fit and proper person to hold a licence?
17 In Tavelli v Johnson(Unreported, Supreme Court of WA; Library No 960693; 25 November 1996), at pages 6 - 7, Her Honour Wheeler J considered the fit and proper person concept generally, and specifically with the way in which prior convictions ought be dealt with. That case was concerned with a decision taken in relation to an inquiry agent's licence but in my view applies with equal force to a security installer's licence:
"In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156, Dixon CJ and McTiernan and Webb JJ said:
'The expression 'fit and proper person' is, of course, familiar enough as traditional words when used with reference to offices and perhaps vocations but their very purpose is to give the widest scope for judgment and indeed for rejection ... .'
It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.
With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if:
(1) they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420;
(2) they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;
- (3) they occur while the person is the holder of a licence under the Act;
(4) they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
- Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:
(1) where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
(2) if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on additional factors I list and, in appropriate cases, on others;
(3) any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
(4) a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that
- they were made in full knowledge of the fact of the commission of the offences."
18 I make the following observations on the facts of this case regarding the matters referred to in the passage just quoted:
1) None of the offences occurred in the course of or relating to the respondent's duties as a security installer.
2) The offences are in the main not ones involving offences of dishonesty. Rather, they are ones of disorderly or reckless behaviour whilst under the influence of alcohol.
3) The offences, with the exception of the earliest, were committed whilst Mr Delbost was the holder of the security installer's licence.
4) The seriousness of the offences was the subject of fundamental disagreement between the parties. As I have said, the applicant regarded the offences as indicative of a person with a disregard for the law and an anti-police attitude, whereas the respondent submitted that they indicated an inability to handle alcohol and did not reflect badly on Mr Delbost other than to that extent. Although the offences, and in particular those of December 2005 and June 2007, represented a serious lack of self-control, there seems little question that they are attributable to the respondent's issue with alcohol rather than an endemic disregard for the law or authority.
5) The respondent has on the uncontested evidence pleaded guilty to each of the charges at the earliest opportunity, informed his employers of his offences, and (albeit belatedly according to the applicant) adopted a course of action to address the issue of alcohol which has been at work on each occasion. These are the actions of a young man who has faced up to his failures in a responsible manner and he receives credit for that.
6) The offences all occurred in the past period of five years or so, the most some four months ago. They are therefore in the recent past. However, the applicant's age needs to be borne in mind. I am prepared to accept that a 23-year-old is well capable of achieving early rehabilitation, particularly where it is based upon identification and treatment of a single cause, as appears to be the case here.
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- 7) During October and November this year, the respondent completed the Salvation Army course relating to the responsible consumption of alcohol which both he and his employer consider has led to a beneficial change in attitude.
8) There has been some degree of recidivism over the past five years. However, it might be expected that the identification of the root cause (misuse of alcohol) and the respondent's addressing of that cause will pay dividends. The evidence of the respondent's employer, Mr Croot, was instructive as to both Mr Delbost's emotional development and the likelihood that his employer will continue to lend a firm but fair hand in supporting the respondent's efforts to rehabilitate himself.
19 This is a matter which gave rise to rational arguments on both sides as to whether the descriptors of "good character" and "fit and proper person" should apply to the respondent. In the end, I have found that they should, on the basis that his offences are not so heinous that of themselves they disqualified the respondent being so described when taken together with Mr Delbost's frank self-assessment, with his employer's encouragement, of the cause of his offending behaviour, and the subsequent action to address that cause. My finding in favour of Mr Delbost accepts at face value the evidence on his behalf that he now has his social drinking under control. It goes without saying that any further offending (whether alcohol-fuelled or not) relevant to his security installer's licence is likely to be met with the swiftest action.
Order
20 The Tribunal orders that:
1. The application is dismissed.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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