COMMISSIONER OF POLICE and KANYIMBU
[2010] WASAT 61
•30 APRIL 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: COMMISSIONER OF POLICE and KANYIMBU [2010] WASAT 61
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 20 APRIL 2010
DELIVERED : 30 APRIL 2010
FILE NO/S: VR 31 of 2010
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
MOSES KANYIMBU
Respondent
Catchwords:
Security and Related Activities (Control) Act 1996 (WA) - Security officers licence suspended Whether extenuating circumstances exist - Consideration of what constitutes extenuating circumstances
Legislation:
Criminal Code Act 1913 (WA), s 317, s 317(1)
Security and Related Activities (Control) Act 1996 (WA), s 67A(2)
Security and Related Activities (Control) Regulations 1997 (WA), s 67A, Reg 24, Sch 2 Div 1
State Administration Tribunal Act 2004 (WA), s 48, s 48(1)(f), s 48(2)
Result:
Application granted
Decision under review affirmed
Category: B
Representation:
Counsel:
Applicant: Senior Constable Bagley
Respondent: N/A
Solicitors:
Applicant: N/A
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
Nitschke v Halliday (1982) 30 SASR 119
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 2 February 2010 the applicant suspended the respondent's security officers licence by notice issued pursuant to s 67A(2) of the Security and Related Activities (Control) Act 1996 (WA). That decision was made on the basis that criminal charges were pending in relation to the respondent for a disqualifying offence and the applicant was not satisfied that extenuating circumstances existed.
The respondent was present at a directions hearing when orders were made, among others, for the respondent to file a response to the applicant's statement of issues of facts and contentions attaching any documents upon which he wished to rely, and listing the matter for final hearing on an agreed date. The respondent failed to file any response to the application and to appear at the final hearing. The applicant sought an order for the decision under review to be affirmed, based on the merits of the application and also under s 48(1)(f) of the State Administrative Tribunal Act 2004 (WA) by reason of the respondent's failure to attend the hearing thereby causing disadvantage to the applicant.
The Tribunal acted upon all of the materials filed by the applicant and concluded that the respondent had been charged with a disqualifying offence. The Tribunal also considered whether extenuating circumstances existed. The Tribunal held that the essential character of an extenuating circumstance was that it in some way reduces the culpability attaching to the alleged offender. In this case, the alleged offence of aggravated assault occasioning bodily harm under s 317 of the Criminal Code Act 1913 (WA), related to a domestic incident unconnected with the respondent's performance of his duties as a security officer.
The Tribunal expressed the view that there was a potential in such circumstances for a licensee to show that a one off event, in the context of an emotionally charged break down of a relationship, where the assault was not of a particularly severe nature, constituted an extenuating circumstance. However, as the respondent had not put any evidence before the Tribunal relating to matters of that nature, the Tribunal was satisfied that no extenuating circumstances existed.
Consequently, the Tribunal held that the decision under review should be affirmed having regard to the merits of the application. The Tribunal did not accept that the circumstances warranted the matter being determined in favour of the application under s 48 of the State Administrative Tribunal Act 2004 because the respondent's failure to respond to the applicant's statement of issues, facts and contentions and to appear at the hearing had not disadvantaged the applicant but, to the contrary, had, if anything, facilitated the prompt disposal of the matter in a way favourable to the applicant.
The application
The Commissioner of Police has referred this matter to the Tribunal for review of his decision to suspend the respondent's licence as a security officer pursuant to the provisions of s 67A of the Security and Related Activities (Control) Act 1996 (WA).
At the conclusion of the final hearing of this matter on 28 April 2010 I delivered oral reasons for decision. I indicated that I would obtain a copy of the transcript, which I would cause to be published, subject to minor editing to ensure that it was in a form suitable for publication. The reasons for decision which follow reflect that oral decision subject to minor editing as indicated.
Factual findings
The Tribunal accepted into evidence all of the information contained within and attached to the applicant's statement of issues, facts and contentions. The statement reflects that the respondent is the holder of a security officer's licence, following an application made by him on 21 January 2009.
Approximately one year later, that is, on 24 January 2010, an incident occurred at the respondent's partner's residence in Gosnells, where she was hosting a party to which the respondent was not invited. A statement provided by the respondent's partner, Lucia Faria Dhlakama, reflects that she had not invited her partner as he is from the Congo and she was having what she referred to as a Zimbabwean party. Apparently the respondent did not always get along with Ms Dhlakama's friends.
In any event, as appears from Ms Dhlakama's statement, the respondent showed up at her home at approximately midnight. It appears that he had been drinking before he arrived. Ms Dhlakama noted that the respondent was agitated. At about 4.30 am, when the guests were in the process of departing, the alleged assault is said to have occurred, which has resulted in the respondent being charged.
The charge is one under s 317 of the Criminal Code Act 1913 (Criminal Code), being a charge of aggravated assault occasioning bodily harm. It appears from Ms Dhlakama's statement that she alleges that she was headbutted, causing injury to her top lip, which commenced to bleed. A male friend of Ms Dhlakama attempted to restrain the respondent but was unsuccessful. Ms Dhlakama alleges that the respondent headbutted her again. He then allegedly picked up Ms Dhlakama's laptop computer and threw it against a wall. Ms Dhlakama states that she had an opportunity to call the police. It is evident that someone must also have thought that the injury caused to Ms Dhlakama was sufficient to call an ambulance, because she states that an ambulance arrived shortly after. That, I take to be shortly after she had made a telephone call to the police. Following the laying of the criminal charge, the Commissioner issued a notice to the respondent on 2 February 2010, suspending his licence. Following advice from the Commissioner's legal unit, a further notice was provided to the respondent on 3 March 2010, informing him of an intention to suspend the licence if, within 14 days, information was not provided regarding the offence, which might amount to extenuating circumstances.
Considerations
It must be noted that it is the decision made on 2 February 2010 which is the subject of this review proceeding.
On a review, the Tribunal effectively stands in the shoes of the Commissioner, and therefore the decision to suspend must be affirmed unless there are extenuating circumstances found to exist. It is necessary, therefore, to say something about what may constitute extenuating circumstances. In Nitschke v Halliday (1982) 30 SASR 119, King CJ 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.
That statement was approved by Steytler J, in the matter of Anderson v Racing Penalties Appeal Tribunal of Western Australia & Anor, (unreported, WASCA (Full Bench), Library No 970504C, 3 October 1997. 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.
In that regard I refer to the Act, and the definition of disqualifying offence, which states:
It means an offence of the kind prescribed as being a disqualifying offence.
The Security and Related Activities (Control) Regulations 1997 (WA), by reg 24, prescribe that:
An offence described in schedule 2 constitutes a disqualifying offence.
Schedule 2 division 1 provides:
All indictable offences with a maximum penalty exceeding three years' imprisonment constitutes a disqualifying offence.
Section 317(1) of the Criminal Code provides:
Any person who unlawfully assaults another and thereby does that person bodily harm, is guilty of a crime and is liable:
(a)If the offence is committed in circumstances of aggravation, or in circumstances of racial aggravation, to imprisonment for seven years.
In this case, of course, it is alleged that the offence was committed in circumstances of aggravation.
I am satisfied, therefore, that this is a disqualifying offence as prescribed. It is necessary, then, to consider whether having regard to the facts known to the Tribunal extenuating circumstances might exist.
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 this case, the injury appears to have been sufficiently serious for someone to have made a decision to call an ambulance. I should add that the ambulance officers, according to Ms Dhlakama, wanted her to attend hospital, but she declined to do so. This suggests that the injury was of a reasonably severe nature. Apart from that, the circumstances might have been such as to give potential for the respondent to bring himself within the scope of circumstances which might constitute extenuation. The respondent, however, has not taken the opportunity to provide the Tribunal with more information about the history of the relationship. Taking all of these factors into account, I cannot find that extenuating circumstances exist.
It was submitted on behalf of the Commissioner that the decision should be affirmed on two bases, firstly, based on a consideration of the merits, with which for the above reasons, I agree, and secondly, under s 48(1)(f) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). That provision applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding, by conduct such as, relevantly, under s 48(1)(f) by failing to attend any hearing in the proceeding. Section 48(2) of the SAT Act then provides:
The Tribunal may, if the party causing the disadvantage is not the applicant, determine the proceeding in favour of the applicant and make any appropriate orders.
I am not satisfied that the failure of the respondent to attend has unnecessarily disadvantaged the Commissioner. If anything, the failure of the respondent to appear has facilitated the prompt disposal of the matter in a way favourable to the applicant. In the circumstances, I am not prepared to determine the proceeding in favour of the applicant under s 48 of the SAT Act. However, on the merits I consider that the decision under review should be affirmed.
For the above reasons an order was made that the decision under review is affirmed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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