| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : COMMISSIONER OF POLICE and WHEELER [2014] WASAT 9 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 17 JANUARY 2014 FILE NO/S : VR 192 of 2013 BETWEEN : COMMISSIONER OF POLICE Applicant
AND
MATTHEW BRIAN WHEELER
Respondent
Catchwords: Security officer and crowd controller licences Suspension Review No extenuating circumstances Turns on its own facts Legislation: Criminal Code Act Compilation Act 1913 (WA), s 317(1)
Security and Related Activities (Control) Act 1996 (WA), s 3, s 4A(3), s 67A(2)(c), s 67A(4)(a)
Security and Related Activities (Control) Regulations 1997 (WA), reg 24, Sch 2
State Administrative Tribunal Act 2004 (WA), s 17, s 17(1), s 17(3) Result: Applicant's decision affirmed
Summary of Tribunal's decision: The respondent was charged with assault occasioning bodily harm following an incident in the course of his duties as a security officer. The offence is a disqualifying offence. The respondent failed to establish any extenuating circumstances militating against a decision to suspend the respondent's security officer and crowd controller licences.
Category: B
Representation: Counsel:
Applicant : Ms A Sukoski
Respondent : In Person
Solicitors:
Applicant : Commissioner of Police Office of General Counsel
Respondent : N/A
Case(s) referred to in decision(s):
Commissioner of Police and Albert [2012] WASAT 34
Commissioner of Police and Kanyimbua [2013] WASAT 6
Mansfield and Evans [2003] WASCA 193
REASONS FOR DECISION OF THE TRIBUNAL:
Application 1 On 7 October 2013 the Commissioner of Police (applicant) made application to the Tribunal for an order to 'affirm the decision of the Commissioner's delegate to suspend the Security Officer and Crowd Controller's licences on issue to the Respondent'. The application is made pursuant to s 67A(4)(a) of the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act). The applicant is required by s 67A(4)(a) of the SRAC Act to make the application to refer to the Tribunal the reviewable decision, to suspend the respondent's security officer and crowd controller licences, within 14 days of having made that reviewable decision.
The respondent 2 The respondent is the holder of security officer and crowd controller licences SG/CC44331. The Tribunal notes that on 9 September 2012 the licensing officer, Mr Hicks, posted a letter of 'notice of intention to suspend your licence' to the respondent at an address which he notes as being the 'last recorded address of the abovementioned licence holder at 25 Quincy Loop, Iluka WA 6028'. It is to that address that the subsequent notice of licence suspension recording the reviewable decision to suspend the respondent's security officer and crowd controller licence, was issued.
Jurisdiction 3 The application is made pursuant to s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the SRAC Act being the relevant 'enabling Act' for the purpose of s 17(1) of the SAT Act. The applicant's delegate's decision to suspend the respondent's security officer and crowd controller licences is the 'reviewable decision' for the purposes of s 17(3) of the SAT Act.
The reviewable decision 4 The respondent's security officer and crowd controller licences have been suspended following a decision made by the applicant pursuant to s 67A(2)(c) of the SRAC Act on the grounds that: 5 There is no dispute in this matter that the respondent is the subject of a criminal charge for a disqualifying offence (being assault occasioning bodily harm pursuant to s 317(1) of the Criminal Code Act Compilation Act 1913 (WA), it being a disqualifying offence as defined by s 3 and s 4A(3) of the SRAC Act, and being an offence described in Sch 2 to the Security and Related Activities (Control) Regulations 1997 (WA) as an indictable offence with a maximum penalty not exceeding three years imprisonment (see reg 24 of the Regulations)).
The issue 6 The issue in this matter is whether there are any extenuating circumstances such that the correct and preferable decision by the Tribunal is to set aside the reviewable decision.
What amounts to extenuating circumstances? 7 The applicant in its statement of issues, facts and contentions at paragraph 20 through to 22 relies on the authority cited therein including Mansfield and Evans [2003] WASCA 193;Commissioner of Police and Kanyimbua[2013] WASAT 6 and Commissioner of Police and Albert [2012] WASAT 34. 8 The Tribunal agrees with those authorities, and the statement referred to that the ordinary meaning of 'extenuating' is to serve to make the offence seem less serious and includes circumstances that explain and lessen the seeming magnitude of the offence. In this case, the respondent by his letter to the applicant (undated but attached to the applicant's application), identifies the following to be his extenuating circumstances: a) The victim of the assault was at the club with the intention of attacking officers 'by his own admission'. b) The victim was escorted from the club. c) The victim had made threats and intimidated the guards. d) The victim was aggressive and threatening and evermore so at an escalating rate before the assault. 9 The respondent alleges that he thought the victim was about to attack the respondent's partner and perceived the victim's conduct as a physical threat to his partner. The respondent asserts that he intervened so as to prevent the victim from attacking and assaulting the respondent's partner. The respondent maintains that he was simply doing his job. 10 There is no doubt that the task of a security officer and crowd controller can be difficult in these circumstances but the Tribunal notes that the victim was hit by the respondent with significant force and required hospitalisation according to the applicant's statement of material facts. The reference to the victim intending to attack the security officer 'by his own admission' is not supported in the material before the Tribunal. The statement of material facts presents a different version of the events and which version of the event is proved is for a different jurisdiction to determine. 11 In the Tribunal's view, the facts referred to by the respondent do not amount to extenuating circumstances. Those facts are not mitigating factors alone. They are facts that go to the elements of the offence with which the respondent has been charged and to the partial and complete defences which the respondent may raise in defence to the prosecution of the charge. 12 The extenuating circumstances cannot extend to whether the offence was committed or not, or the strength of the prosecution case.
The hearing 13 This matter was listed for hearing on 17 December 2013. The orders made on 31 October 2013 facilitated the respondent filing a statement of issues, facts and contentions, a paginated bundle of documents upon which he intended to rely and all other evidence upon which he intended to rely by 5 December 2013. 14 The respondent did not file any documents by 5 December 2013, or at all. Pursuant to that order and on the applicant's application to vacate the hearing and determine the matter entirely upon the documents made on 16 December 2013, the Tribunal vacated the final hearing and ordered the matter be determined on the documents. The Tribunal considers that the respondent has been served with: • a notice of intention to suspend by the applicant; • the notice of suspension; • the application in this proceedings; • the hearing notices for the directions hearing; • the order made on 31 October 2013; and • the notice of hearing on 17 December 2013. 15 The Tribunal is satisfied that the respondent has had every opportunity to advance his case and be heard.
Consideration 16 The Tribunal is satisfied that the respondent has not disclosed any extenuating circumstances as required by s 67A(2)(c) of the SRAC Act. As such, the applicant was entitled by reason of that provision to make the decision to suspend the respondent's security officer and crowd controller licences. The Tribunal is satisfied that the decision was the correct and preferable decision. 17 The Tribunal notes that the scheme of the SRAC Act provides that the holder of a security officer and/or crowd controller's licence is prohibited from continuing to hold such a licence upon being found guilty and convicted of a disqualifying offence, such as the offence with which the respondent has been charged. The Tribunal concludes that the legislature intended that in the interests of public safety such charged licensees should be suspended from exercising the functions and having the control conferred on them by the issue of a licence unless there are compelling circumstances. 18 In the circumstances of this case where the victim required hospitalisation following a significant assault and there are no extenuating circumstances, the Tribunal considers that the correct and preferable decision is that the respondent's licences be suspended. For this reason the Tribunal shall affirm the applicant's decision.
Order 19 The order is as follows: |