COMMISSIONER OF POLICE and GAZZONE
[2005] WASAT 228
•26 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: COMMISSIONER OF POLICE and GAZZONE [2005] WASAT 228
MEMBER: DR B DE VILLIERS (MEMBER)
MR R SCAIFE (SESSIONAL MEMBER)
MS M ANGUS (SESSIONAL MEMBER)
HEARD: PRIMARY HEARING 19 AUGUST 2005
DELIVERED : 26 AUGUST 2005
FILE NO/S: VR 305 of 2005
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
FRANK N GAZZONE
Respondent
Catchwords:
Evidence - Security officer - Character - Fit and proper - Referral to revoke security officer licence for disciplinary reasons - Recent criminal record of seven incidents of driving away from petrol stations without paying
Legislation:
Security and Related Activities (Control) Act1996 (WA), s 52(c), s 67(2)
State Administrative Tribunal Act 2004 (WA)
Result:
Orders made
Category: B
Representation:
Counsel:
Applicant: Sgt S Bagley
Respondent: Self-represented
Solicitors:
Applicant: Commissioner of Police
Respondent: Self-represented
Case(s) referred to in decision(s):
A and Commissioner of Police [2005] WASAT 121
Coulthard v Henneker [2003] WASCA 187
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Issue
The applicant sought an order to revoke the security officer licence of the respondent on grounds that the Tribunal is satisfied that a proper cause exist for disciplinary action pursuant to s 67(2) of the Security and Related Activities (Control) Act 1996 (WA) (the Act) and that the Tribunal is therefore of the opinion that the respondent no longer meets the requirements of a fit and proper person of good character to continue to hold a licence under s 52(c) (any reference to a section of an Act is, unless otherwise specified, a reference to the said Act).
The applicant contended that there is proper cause for disciplinary action on grounds of the recent criminal record of the respondent. The respondent was convicted of seven stealing (petrol station drive-off) offences between October 2004 and December 2004.
The respondent contended that the actions for which he was charged were out of character and did not reflect on his duties as security officer. He realises that it was wrong to drive‑off without paying but he was depressed at the time due to financial difficulties he had experienced. He is young and has changed his ways. He took once‑off counselling, was feeling much more positive and he wants to get on with his life.
The Tribunal is satisfied that a proper cause for disciplinary action exists. The nature of the offences relates to dishonesty and abuse of trust. A security officer is required to comply with a high degree of trust as he is responsible for looking after the property of other persons. The respondent acted unlawfully in a repeated way that suggests a strong disregard for the law and the interests of others. The Tribunal is to revoke a licence if it is satisfied that the respondent is no longer of good character and a fit and proper person to continue to hold the licence.
The Tribunal notes that the respondent may again in future apply for a security officer licence and therefore encourages him to stand by his undertakings not to re‑offend in any way.
Orders are made for the security officer licence of the respondent to be revoked and for the respondent to return the licence immediately.
Background
The respondent applied for a security officer licence on 15 April 2003 and was issued with a licence (SG19803) due to expire on 15 April 2006.
During the period October 2004 to end of December 2004 the respondent committed seven acts of stealing by filling up his car and driving off without paying. He was convicted of four incidents on 24 January 2005 and of another three incidents on 19 July 2005.
On 27 January 2005 he wrote to the licensing officer to bring the conviction of 24 January 2005 to his attention. In the letter he expressed his remorse at the incidents and expressed concern that his licence may be revoked.
The licensing officer had a discussion with the respondent on 28 January 2005 and warned him that his actions may have compromised his licensing as a security officer. He was told that no further "indiscretions would be tolerated".
As noted above, the respondent was convicted on 19 July 2005 of a further three stealing incidents of driving off without paying for the petrol.
Information the Tribunal takes into account
The Tribunal notes the submissions by the applicant in regard to s 52(c) and in particular what information may be taken into account by the licensing officer in the exercise of his discretion. In the recent decision of A and Commissioner of Police [2005] WASAT 121 the Tribunal referred to several authorities dealing with the fit and proper test. In par 61 of the decision the Tribunal concluded as follows:
"Members of the public, in particular those that visit facilities where licensees are on duty, expect licensees to comply with the high standards set by the Act and to demonstrate a level of moral integrity and rectitude of character commensurate with their duties. We have a duty to protect the interests of the public and maintain public confidence in the security industry."
The Act does not define what the legislator intended with the words "good character" or "fit and proper". The Macquarie Dictionary (Moore A, (ed) "Macquarie Concise Dictionary", Macquarie University Library, Sydney, 2004) defines "character" as "the aggregate of qualities that distinguishes one person or thing from another", "moral constitution of a person", "reputation" and "good repute". "Fit and proper" is not defined in a simple way. The legislature intended for the licensing officer to exercise his judgement and discretion based on all the information at his disposal in regard to the application, to make a decision.
We regard the finding by Barker J in Coulthard v Henneker [2003] WASCA 187 at par [60] particularly instructive namely that the issue before the licensing officer requires him to "balance factors for or against (own emphasis added) the view that the respondent satisfied this (s 52(c)) requirement".
The information the Tribunal can take into account includes the objectives of the Act, the interests of the public, the nature of the duties that the respondent is required to discharge, the circumstances in which the duties may be discharged, the criminal record of the respondent, the circumstances in which those offences were committed, the personal circumstance of the respondent and information regarding his character, and his ability to fulfil the duties required of him. It is not an exercise in theory but a decision based on the practical situation of the respondent.
Consideration of information
The actions of the respondent by repeatedly driving off without paying (seven times) over a period from October to December 2004, are completely unacceptable. The respondent could not offer the Tribunal a coherent or justifiable explanation for his actions. At best he had a "don't care" approach and at worst he showed a complete disregard for the property of others. His comment during evidence that "it was not murder" might be correct, but it illustrates his ongoing lack of appreciation of the seriousness of repeat offences of this nature for a person holding a security officer licence.
We accept that the monetary amount involved was not substantial but the offences were conducted in a situation of trust where Mr Gazzone was expected to pay after filling up his car. He repeatedly drove off in complete disregard for the trust placed in him by the owners of the petrol stations. Lack of funds for payment of personal expenses does not justify the offences he committed.
In light of the fact that in the course of his duties the respondent is required to uphold the law and protect the property of others against abuse and theft, his actions are even more reprehensible. In evidence he confirmed that his duties as security officer may include watching over petrol stations. He admitted that he would endeavour to obtain the registration number of anyone "driving off" while he was on duty and notify any drive‑off to the police for proper action to be taken against the culprit.
A security officer is responsible for guarding, watching and protecting another person's property. That places the respondent in a position of utmost responsibility and trust and the client in a position of vulnerability.
The Tribunal as licensing officer has a duty to the community to take disciplinary action against the respondent by revoking his licence to work as a security officer. The public interest demands no less. The public has empowered the Tribunal to deal with these matters knowing that the Tribunal, as licensing officer, will uphold the standards set in the Act.
We commend the respondent for the open and honest way in which he gave evidence. The respondent has taken the initiative to undergo counselling and demonstrates remorse for what has happened.
Finding
Following from the above, the Tribunal is satisfied that a proper cause exists for disciplinary action against Mr Gazzone under s 67(2). His security licence should be revoked on grounds that the Tribunal is satisfied that Mr Gazzone no longer meets the requirements of being a fit and proper person to hold a licence.
The Tribunal notes that respondent may apply again in future for a security officer licence and the Commissioner may decide to issue it if the respondent can show that he has mended his ways. The respondent would however have to demonstrate over a period of time that he can be trusted not to breach the trust others have placed in him.
Orders
1.Pursuant to s 67(2) the security licence (CC19803) of the respondent is revoked.
2.The respondent must return the licence immediately to the Commissioner of Police.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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