COMMISSIONER OF POLICE and LILII
[2014] WASAT 85
•7 JULY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: COMMISSIONER OF POLICE and LILII [2014] WASAT 85
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 JULY 2014
FILE NO/S: VR 85 of 2014
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
PATRICK SUNILL LILII
Respondent
Catchwords:
Security agents - Suspension of licence where licensee charged with disqualifying offence - Whether extenuating circumstances exist
Legislation:
Crimes Act 1914 (Cth), s 19B(1)
Security and Related Activities (Control) Act 1996 (WA), s 3, s 4A, s 52(1), s 52(1)(c)(a), s 67A, s 67A(2)(c)
Security and Related Activities (Control) Regulations 1997 (WA), reg 24, reg 25, reg 25(2)(a), reg 25(2)(b), reg 25(3), Pt 5A, Div 1, Div 2, Sch 2
Result:
Decision to suspend affirmed
Summary of Tribunal's decision:
The applicant suspended the respondent's security officer's and crowd controller's licences because of a pending charge faced by the respondent for grievous bodily harm, a 'disqualifying offence' under the relevant legislation.
The parties disagreed over a further prerequisite for the decision to suspend the licences - that no 'extenuating circumstances' exist. It was this issue which the Tribunal, on the referral of the matter to it, was required to determine.
The Tribunal considered the meaning of 'extenuating circumstances' for the relevant purpose by reference to the scheme of the legislation and legal authorities dealing with the same expression of the courts in a criminal and quasicriminal context and the Tribunal under the same legislation. It found the ordinary meaning of 'extenuating' to apply, and consequently that 'extenuating circumstances' should be limited to factors which mitigate the seriousness of the alleged offence.
The Tribunal found that none of the particular matters relied upon by the respondent, individually or taken together, amounted to an extenuating circumstance in the relevant sense. It accordingly affirmed the decision to suspend the respondent's licences.
Category: B
Representation:
Counsel:
Applicant: Senior Constable S Bagley (Acting as Agent)
Respondent: Dr M G Saupin
Solicitors:
Applicant: Commissioner of Police
Respondent: Saupin Legal
Case(s) referred to in decision(s):
Commissioner of Police and Kanyimbu [2010] WASAT 61
Commissioner of Police and Wheeler [2014] WASAT 9
Lanham v Brake (1983) 74 FLR 284
Mansfield v Evans [2003] WASCA 193
Nitschke v Halliday (1982) 30 SASR 119
O'Sullivan v Wilkinson [1952] SASR 213
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 24 April 2014, a delegate of the Commissioner of Police (Commissioner) gave notice to Mr Patrick Sunill Lilii (Mr Lilii) of his intention to suspend Mr Lilii's security officer's and crowd controller's licences under the Security and Related Activities (Control) Act 1996 (WA) (SRA Act) by reason of Mr Lilii having been charged with a 'disqualifying offence', namely, grievous bodily harm. The notice indicated that the delegate was satisfied that no 'extenuating circumstances' existed, being a further condition placed on the exercise of the Commissioner's power to suspend the licences. The notice invited Mr Lilii to respond to the notice, and, specifically, to provide details of any extenuating circumstances he considered to exist.
Through his lawyers, Saupin Legal, Mr Lilii indicated that he objected to the suspension of his licences, and provided details of what he believed to be extenuating circumstances. The details were provided under two headings, 'Background and Employment' and 'Circumstances of the Offence'. By reason of the various claims for the existence of extenuating circumstances, it was contended that the Commissioner should not suspend Mr Lilii's licences.
The Commissioner's delegate did not accept any of the matters advanced by Saupin Legal to be extenuating circumstances, and proceeded to suspend the licences by notice dated 9 May 2014, effective immediately on receipt of the notice to remain in force until 14 days after the determination of the charge by a court.
The parties having maintained their respective positions on the referral of the matter to the Tribunal, the issue for me to determine is whether any of the details provided to the Commissioner by Saupin Legal, either individually or in combination, qualifies as an extenuating circumstance or extenuating circumstances so as to warrant the setting aside of the suspension decision.
Legislative framework
The decision to suspend Mr Lilii's licences was made pursuant to the Commissioner's power to summarily revoke and suspend licences, found in s 67A of the SRA Act.
Section 67A of the SRA Act, so far as it is relevant to the present matter, provides:
…
(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
(i)if the suspension is, or suspensions are, under paragraph (a), giving details of the prescribed medical examination; or
(ii)if the suspension is, or suspensions are, under paragraph (b), giving details of the request made under section 68A(2); or
(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.
…
(4)Within 14 days of a notice being given under subsection (1)(a) or (2) the Commissioner must
(a)refer the matter in respect of which the notice was given to the State Administrative Tribunal; and
(b)ensure that any other proceedings under this Division in respect of the matter commenced before the notice was given are discontinued.
…
'Disqualifying offence' is defined in the definitional s 3 of the SRA Act as follows:
disqualifying offence means an offence of a kind prescribed as being a disqualifying offence[.]
Part 5A of the Security and Related Activities (Control) Regulations 1997 (WA) (SRA Regulations) deals with disqualifying offences and disqualifying periods.
Regulation 24 of the SRA Regulations states relevantly:
Disqualifying offences prescribed (Act s. 3)
The following offences are prescribed as being disqualifying offences for the purposes of the definition of disqualifying offence in section 3
(a)an offence described in Schedule 2[.]
Schedule 2 of the SRA 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 three years imprisonment (whether or not a summary conviction penalty applies in respect of the offence), other than an offence under s 378'.
There is no issue that the offence of grievous bodily harm falls within the group of offences just mentioned.
Section 4A of the SRA Act, which deals with the meaning of 'prohibited person', states:
(1)In this Act, a person is a prohibited person
(a)if there has been a finding of guilt in relation to a disqualifying offence committed by the person; and
(b)during the disqualifying period prescribed in respect of the offence.
…
Regulation 25 of the SRA Regulations prescribes disqualifying periods, dependent upon the offence in respect of which a finding of guilt occurs. 'Division 1 offences' are subject to a disqualifying period of 10 years commencing on the date the finding of guilt was made, except in the case of a spent conviction: reg 25(2)(a) of the SRA Regulations. 'Division 2 offences' are subject to a disqualifying period of five years (reg 25(2)(b) of the SRA Regulations), unless circumstances giving rise to the exclusion in reg 25(3) of the SRA Regulations apply.
Factual circumstances of alleged offence
The Commissioner relies upon a statement of material facts, in standard form, which contains details of an incident involving Mr Lilii shortly after 5am on 20 April 2014. The statement is unsigned, but no issue has been taken as to this, nor has it been suggested that any of the details in the statement will not form the basis of the prosecution case against Mr Lilii.
According to the statement of material facts:
•Mr Lilii was on the footpath outside a nightclub in central Perth, standing with a group of associates among a small crowd of people who had just exited the nightclub upon closing.
•The victim, heavily affected by alcohol, approached and hugged several people amongst the crowd.
•The victim approached Mr Lilii, face to face, and put both his arms around the back of Mr Lilii's neck, attempting to hug him.
•Mr Lilii stepped back, ducking under the victim's arms, and pushed him forcefully backwards.
•The victim fell heavily onto his back, striking the back of his head against the footpath, rendering him unconscious.
•The victim suffered trauma to the brain, and on 21 April 2014, life support was discontinued and the victim died.
•On 20 April 2014, Mr Lilii participated in a record of interview. He admitted pushing the victim to the ground, but said that he did so because of the way the victim had grabbed him.
Extenuating circumstances upon which Mr Lilii relies
I reproduce below the two lists provided by Saupin Legal as constituting extenuating circumstances:
Background and Employment
1.The accused works on Barrow Island for Omega Security as a security [o]fficer and relief manager[;]
2.He has worked for the firm for two years as a flyinfly[‑]out employee to Barrow Island;
3.His duties as a Security Officer are only on Barrow Island;
4He has never been involved in a disciplinary incident with his employer;
5.The alleged offence did not occur in the course of our client's employment as a Security Officer;
6. The alleged offence did not occur on company property or had (sic) anything to do with the accused (sic) place of work, fellow employees or management;
7.Our client does not engage in security or crowd control duties outside of his duties with his current employer;
8.Our client's duties as Security Officer does (sic) not bring him into contact with the general public;
9.His employer appears not to have taken any steps to remove our client from his current position as Security Officer, suspend or in any way restrict his duties; and,
10.Our client is married with a young family and he is the sole income earner.
Circumstances of the Offence
1.The victim in this matter approached Mr Lilii and his brother in the early hours of the morning on the street outside a nightclub;
2.The victim threw himself at Mr Lilii placing him in a reverse headlock;
3.Mr Lilii was sober and the victim highly intoxicated;
4.Mr Lilii responded by placing his palm on the victim's chest and leveraged the victim backwards and away; and,
5.The victim slouched to the floor, sat down and then on his own leaned backwards striking his head on the pavement in the process.
According to Saupin Legal's letter, the details provided under 'Background and Employment' demonstrated no connection between the alleged offence and Mr Lilii's occupation as a security officer, and those provided under 'Circumstances of the Offence' are in keeping with what the Supreme Court said in Mansfieldv Evans [2003] WASCA 193 (Mansfield) in relation to the expression 'extenuating circumstances'.
Further, regarding the circumstances of the offence, Mr Lilii's solicitor's letter characterised what occurred as the victim making the first move towards Mr Lilii, with Mr Lilii responding in the manner in which he did in keeping with his training as a security person.
Consideration
I will consider each category of extenuating circumstances for which Mr Lilii contends. However, before doing so, I will make some general observations regarding the legislative scheme applying to this case and refer to some of the relevant legal authorities on the meaning of extenuating circumstances.
It needs to be borne in mind that for the purposes of the licencing provisions under the SRA Act, any person who is found guilty of a disqualifying offence thereby becomes a prohibited person who cannot be considered for the grant of a licence: s 52(1)(c)(a) of the SRA Act. Further, any prohibited person is subject to a disqualifying period, depending upon the offence, of either five or 10 years from the date of the finding of guilt. As I have said, the disqualifying period for a person found guilty of grievous bodily harm is 10 years.
In any case, where the Commissioner is satisfied that a charge for a disqualifying offence is pending against a licensee, and subject to the question of existence of extenuating circumstances, the Commissioner must suspend the licence or licences held by the licensee. The Commissioner must be satisfied that no extenuating circumstances exist in order for that result to follow: s 67A(2)(c) of the SRA Act.
Most of the authorities dealing with the expression 'extenuating circumstances' are concerned with a criminal or quasicriminal context, where the establishment of extenuating circumstances has the effect of extinguishing guilt or mitigating penalty. It is unsurprising, therefore, that those authorities speak of extenuating circumstances in terms of their tendency to excuse the commission of an offence or reduce culpability: see, for example, Mansfield, Lanham v Brake (1983) 74 FLR 284; O'Sullivan v Wilkinson [1952] SASR 213; Nitschke v Halliday (1982) 30 SASR 119 (Nitschke). In the criminal context, the statute generally imposes, explicitly, a link between the extenuating circumstances and commission of the offence: s 19B(1) of the Crimes Act 1914 (Cth), with which Mansfield was concerned, is an example.
Although s 67A(2)(c) of the SRA Act does not express such a linkage, in my view, 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. to 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'.
2)The scheme of the SRA Act: As I have indicated, where someone is found guilty of a disqualifying offence, he or she is ineligible to hold a licence under the SRA Act. It would be curious if a person charged with a disqualifying offence could rely upon some circumstance unrelated to the offence alleged to have been committed to avoid suspension.
I note that, subject to one aspect of the first decision to which I refer below, the construction I have adopted of 'extenuating circumstances' is consistent with that previously accepted by the Tribunal in at least two matters: Commissioner of Police and Kanyimbu [2010] WASAT 61 (Kanyimbu) and Commissioner of Police and Wheeler [2014] WASAT 9.
In Kanyimbu, Senior Member Raymond, having referred to the following comment of King J in Nitschke:
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 … ,
indicated that this statement needed to 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' (Kanyimbu at [21]).
Senior Member Raymond, after referring to some provisions of the SRA Act and SRA Regulations, then said (Kanyimbu at [21]):
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. ...
With respect, I consider that the reference in Kanyimbu to fit and proper person, and the gloss on the meaning of extenuating circumstances appearing in the reproduced passage (which picks up factors commonly associated with the fit and proper test), unnecessarily cloud the issue.
Under s 52(1) of the SRA Act, a licensing officer, before issuing a licence, must be satisfied, among a range of matters:
…
(c)that the applicant is of good character and is a fit and proper person to hold a licence; and
(ca)that the applicant is not a prohibited person; and
(cb)where there is a charge pending in relation to the applicant for a disqualifying offence, that extenuating circumstances exist[.]
Each of the three matters listed is a condition as to which the licensing officer must be satisfied before issuing a licence. They are separate matters, to be considered independently of each other. There is no reason, to my mind, why the 'extenuating circumstances' concept in the third criterion might pick up the 'fit and proper person' requirement of the first criterion. In fact, consistent with applicable statutory construction principles, each should be regarded as dealing with entirely separate subjects.
There may be some overlapping, in the case of a person charged with a disqualifying offence, where an extenuating circumstance might be seen to enhance the person's claim to be a fit and proper person. But that is a different thing from using, as an aid in determining whether a circumstance is extenuating, a positive impact of the same circumstance on the person's fitness and propriety.
The separate requirements set out in s 52(1) of the SRA Act before a licence may be issued reinforces me in the conclusion I have reached that the ordinary dictionary meaning of 'extenuating' should apply, so as to limit extenuating circumstances to factors tending to reduce the degree of wrongdoing normally associated with an offence, or, to adopt language more commonly used to describe the same concept, mitigate the seriousness of the offence.
By reason of the construction of extenuating circumstances I have adopted, Mr Lilii is unable to rely upon factors enumerated by Saupin Legal under the category of 'Background and Employment'.
Factors three, five, six, seven and eight under 'Background and Employment', and the general statement of lack of connection between the alleged offence and Mr Lilii's occupation as a security officer, may have had some relevance, had I adopted the gloss in Kanyimbu invoking the fit and proper person test. For the reasons I have given, I decline to do so. None of the other factors in the first category go to mitigation of the seriousness of the alleged offence.
As for the second category headed 'Circumstances of the Offence', all the listed factors, and the general statement concerning the nature of Mr Lilii's response, are matters seeking Mr Lilii's exoneration for the grievous bodily harm charge. In other words, they are elements of his defence to the offence with which he is charged.
This is clear from a comparison of the assertions made by the police and Mr Lilii referred to here:
Western Australian Police Service Statement Of Material Facts
… The accused stepped back, ducking under the arms of the victim and pushed him forcefully backward.
The victim fell heavily onto his back, striking the back of his head against the paved footpath, rendering him unconscious.
…
Saupin Legal's letter
…
4.Mr Lilii responded by placing his palm on the victim's chest and leveraged the victim backwards and away; and,
5.The victim slouched to the floor, sat down and then on his own leaned backwards striking his head on the pavement in the process.
Saupin Legal's letter appears to be alive to the necessity of avoiding, in a claim for extenuating circumstances, recourse to any defence sought to be relied upon, when it referred to the agreed facts that the victim approached Mr Lilii with a view to hugging him along with others present as being 'led by the prosecution in the case and not defences'. But the facts just mentioned do not constitute elements of the alleged offence. Rather, it is Mr Lilli's response to the victim's approach that is pivotal, in relation to which the police and Mr Lilii rely on strikingly different facts.
Although it is unnecessary for me to deal with the submission for the Commissioner that, in order to rely on an 'extenuating circumstance', Mr Lilii would first need to admit culpability - which he has not done, having pleaded not guilty to the charge, presumably on the basis set out in Saupin Legal's letter under 'Circumstances of the Offence' I do accept that matters claimed to amount to an absolute defence cannot be 'extenuating circumstances', given the appropriate meaning of that expression.
For the reasons I have given, Mr Lilii has failed to demonstrate the presence of any extenuating circumstances. Accordingly, the decision to suspend both licences held by him is the correct and preferable decision and must be affirmed.
Order
The Tribunal will issue the following order:
1.The decision of the delegate of the Commissioner of Police to suspend the respondent's security officer's and crowd controller's licences is affirmed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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