Commissioner of Police, New South Wales Police v Soreh (GD)

[2007] NSWADTAP 40

Appeal Panel - Internal

CITATION:	Commissioner of Police, New South Wales Police v Soreh (GD) [2007] NSWADTAP 40
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police RESPONDENT Amir Soreh
FILE NUMBER:	079035
HEARING DATES:	24 July 2007
SUBMISSIONS CLOSED:	24 July 2007
DATE OF DECISION:	30 July 2007
BEFORE:	O'Connor K - DCJ (President); Wilson R - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	Commercial Agents and Private Inquiry Agents - Disqualified Individual - Conviction - Spent Convictions Scheme - Applicablility
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	073066
DATE OF DECISION UNDER APPEAL:	06/22/2007
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Commercial Agents and Private Inquiry Agents Act 2004 Crimes (Sentencing Procedure) Act 1999 Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 Criminal Records Act 1991 Victims Compensation Act 1996
CASES CITED:	Soreh v Commissioner of Police, NSW Police [2007] NSWADT 139 Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358
REPRESENTATION:	APPELLANT W Pisani, solicitor, New South Wales Police RESPONDENT In person
ORDERS:	1. Appeal upheld; 2. Decision under appeal set aside; 3. Determination under review affirmed

1 Under the Commercial Agents and Private Inquiry Agents Act 2004 (the CAPIA Act) the administrator, the Commissioner of Police, must refuse to grant a licence to an applicant who is a ‘disqualified individual’: s 13(1). The respondent to this appeal, Mr Soreh, applied for a licence and was refused on the basis that he was a disqualified individual. Mr Soreh applied to the Tribunal to review the decision. The Tribunal ruled that Mr Soreh was not a disqualified individual, and set the Commissioner’s decision aside: Soreh v Commissioner of Police, NSW Police [2007] NSWADT 139. The Commissioner immediately appealed, and sought a stay of the Tribunal’s decision, which was granted.

2 The statutory definition of a ‘disqualified individual’ includes ‘(d) an individual who has been convicted or found guilty of a major offence’: s 4. The Tribunal gave the following background:

‘11 On 22 January 2001, Mr Soreh was convicted of "Assault Occasioning Actual Bodily Harm". That offence carries a maximum penalty of 2 years imprisonment however the Court did not impose a custodial sentence. Instead, the Court made an order pursuant to section 9 of the Crimes (Sentencing Procedure) Act1999 directing that Mr Soreh enter into a good behaviour bond for a period of twelve months.

12 The terms of the good behaviour bond were: (a) to appear before the court if called on to do so at any time during the term of the bond; and (b) to be of good behaviour. Mr Soreh completed the terms of [the] good behaviour bond on 22 January 2002. He has not been convicted of any other criminal offences since that time.’

3 There is no dispute that assault occasioning actual bodily harm is a ‘major offence’, as that term is defined by the CAPIA Act.

4 Mr Soreh’s submission was accepted by the Tribunal that the Commissioner is not able to take account of this conviction because, by the time of his application, it was a spent conviction. The general principle in this regard is found in s 12 of the Criminal Records Act 1991 (the Criminal Records Act), which provides relevantly:

‘If a conviction of a person is spent: …

(c) in the application to the person of a provision of an Act or statutory instrument:

(i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent.’

5 The Tribunal accepted that the order made on 22 January 2001 was the kind of order referred to in s 8(4) of that Act:

‘(4) A finding that an offence has been proved, or that a person is guilty of an offence, and:

(a) the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or

(b) the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit,

is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require.’

6 This provision refers to a ‘finding that an offence has been proved, or that a person is guilty of an offence’. The finding that an offence has been proved or that a person is guilty of an offence belongs to the first of the order-making stages of the criminal trial. These expressions refer to the ruling made by the trier of fact (the magistrate at the local court, the jury in indictable matters) as to whether the elements of the offence have been made out. The next stage involves a further decision, left to the judge, whether to record a conviction. The final stage involves a sentence or other disposition.

7 The order in this case was made under s 9 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). This type of order is commonly referred to as a conviction bond, and is to be contrasted with the non-conviction bonds permitted by s 10 of the CSP Act.

8 In an earlier case, Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358, the presiding member of this Appeal Panel, the President (sitting at first instance) decided that a non-conviction s 10 bond, once expiated satisfactorily became a spent conviction within the meaning of s 8(4) of the Criminal Records Act; and therefore by virtue of s 12 could not be taken into account by the Commissioner in processing applications under the CAPIA Act. (Applied in a s 10 bond case involving firearms licensing: Oliver v Commissioner of Police, NSW Police Service [2007] NSWADT 153.)

9 In the present case, the Tribunal relied on the authority of Mahabir in reaching the same conclusion in respect of the imposition of a s 9 bond. In our view the Mahabir reasoning is not applicable to the present circumstances. In our view, s 8(4) only has application to a s 10 bond.

10 Differentiation in Criminal Records Act. Section 8(4) is part of the following provision:

‘ 8 When is a conviction spent?

(1) A conviction is spent on completion of the relevant crime-free period, except as provided by this section.

(2) A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made.

(3) An order of the Children’s Court dismissing a charge and administering a caution is spent immediately after the caution is administered.

(4) A finding that an offence has been proved, or that a person is guilty of an offence, and:

(a) the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or

(b) the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit,

is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require.

(5) A conviction in respect of an offence of a kind which has ceased, by operation of law, to be an offence is spent immediately the offence ceased to be an offence, if the offence is prescribed by the regulations to be an offence to which this subsection applies.

(6) A conviction which is spent is not revived by a subsequent conviction.

(7) A reference in subsection (4) (a) (as substituted by the Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002) to a good behaviour bond includes a reference to a recognizance to be of good behaviour made before the commencement of the Crimes (Sentencing Procedure) Act 1999.’

11 The way the term ‘conviction’ is used in this provision has to be understood against the extended meaning given to that term in the definition section of the Criminal Records Act, s 4 read in conjunction with s 5. Section 4 provides:

‘ conviction means a conviction, whether summary or on indictment, for an offence and includes a finding or order which, under section 5, is treated as a conviction for the purposes of this Act.’
Section 5 provides:
‘ 5 Findings and orders treated as convictions for the purposes of this Act

The following findings or orders of a court are treated as convictions for the purposes of this Act:

(a) a finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction,

(b) a finding that an offence has been proved, or that a person is guilty of an offence, and the discharging of, or the making of an order releasing, the offender conditionally on entering into a recognizance to be of good behaviour for a specified period or on other conditions determined by the court,

(c) in the case of the Children’s Court, an order under section 33 of the Children (Criminal Proceedings) Act 1987, other than an order dismissing a charge.’

12 It is clear, we think, that at s 8 the legislature was dealing with the lower-order dispositions made by criminal courts. It will be seen that protections are given to non-conviction outcomes at sub-s (2) and sub-s (4).

13 Higher-order dispositions where a conviction has been imposed are dealt with by s 9 of the Criminal Records Act, as follows:

‘ 9 What is the crime-free period for convictions of courts (other than the Children’s Court)?

(1) The crime-free period in the case of a conviction of a court (other than the Children’s Court) is any period of not less than 10 consecutive years after the date of the person’s conviction during which:

(a) the person has not been convicted of an offence punishable by imprisonment, and

(b) the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.

(2) The crime-free period may commence before the date of commencement of section 7.’

14 It will be seen that the usual rule in respect of a conviction which is not excepted from the scheme is that it becomes spent after 10 years.

15 Matching Differentiation in CSP Act. Finally, it will be seen that the same kind of dichotomy is reflected in ss 9 and 10 of the CSP Act. Section 9 deals with the higher-order disposition, the conviction bond.

16 It provides:

‘ 9 Good behaviour bonds

(1) Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term.

(2) The term of a good behaviour bond must not exceed 5 years.

(3) This section is subject to the provisions of Part 8.’

17 In order for a court to be considering a sentence of imprisonment there would need to be a conviction. Moreover, Part 8 is a detailed code headed ‘Sentencing Procedures for Good Behaviour Bonds’ dealing with the setting of conditions for participation in intervention programs and referring offenders for assessment.

18 This scheme of regulation is to be contrasted with s 10 which provides:

‘ 10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.’

19 It will be seen that this is a provision dealing with the imposition of a bond ‘without proceeding to a conviction’ – the same words used in connection with the extended definition of ‘conviction’ for the purposes of the Criminal Records Act: see s 5(a) of the Criminal Records Act cited earlier. The section is clearly designed to provide for disposition with a strong emphasis on the prospects of rehabilitation of the offender. It is intended to be confined to cases that meet the criteria set out in sub-s (3). This provision, for the reasons already explained, deals with the type of order to which s 8(4) of the Criminal Records Act is addressed.

20 Conclusion. Accordingly, the Tribunal’s decision must be set aside. As there is no other issue in contention between the parties a final order should be entered affirming the Commissioner’s decision.

Order

1. Appeal upheld.

2. Decision under appeal set aside.

3. Determination under review affirmed.