Damien RUFFIN and Secretary, Department of Infrastructure and Transport
[2013] AATA 60
•4 February 2013
[2013] AATA 60
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/3288
Re
Damien RUFFIN
APPLICANT
And
Secretary, Department of Infrastructure and Transport
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 4 February 2013 Place
Melbourne
The Tribunal sets aside the decision under review and orders that Mr Ruffin be granted a maritime security identification card (MSIC) with the following conditions:
(a)the identification card be issued for an initial period of two years; and
(b)Mr Ruffin be subjected to drug testing during this initial period, at the discretion of the Secretary or his or her delegate; and at a frequency and at places reasonably directed by the Secretary or his or her delegate; and
(c)a report be provided to the Secretary as to Mr Ruffin's good conduct by his employer or employers for the initial two year period; and
(d)these conditions be lifted at the end of that two-year period, provided that there have been no positive drug tests, that his conduct has been good and that he has had no further criminal convictions in that period; and
(e)if these conditions are not satisfied for the duration of and at the end of the two‑year period, the Secretary should extend or terminate this probationary period as he or she sees fit.
The Tribunal certifies that the proceedings have terminated in a manner favourable to the applicant.
[sgd].......................................................................
Mr Conrad Ermert, Member
MARITIME SECURITY – maritime security identification card (MSIC) – adverse criminal record – MISC required for work on maritime and offshore facilities – whether applicant is a threat to security – Secretary's discretion to approve issue of MSIC to person with criminal record – discretion to impose conditions – decision set aside
LEGISLATION
Maritime Transport and Offshore Facilities Security Act 2003
Maritime Transport and Offshore Facilities Security Regulations 2003
CASES
Re Kevin Johnson and Secretary, Department of Transport and Regional Services [2006] AATA 573
Re Regan Travers and Secretary, Department of Transport and Regional Services [2007] AATA 1797
R v. Ruffin, Damien [2007] VCC 1614
REASONS FOR DECISION
Mr Conrad Ermert, Member
4 February 2013
INTRODUCTION
In 1991 Mr Damien Ruffin, the applicant, was placed on a good behaviour bond after being convicted of cultivating a cannabis plant. On 14 December 2007 in the County Court of Victoria he pleaded guilty to one count of trafficking a commercial quantity of cannabis. He was sentenced to three year’s imprisonment with a non-parole period of 15 months. In addition to his sentence, Mr Ruffin was ordered to pay a penalty of $160,000 and his two properties were forfeited to the State.
Mr Ruffin was also convicted of possessing an unregistered firearm. However, no penalty was imposed for this conviction.
In March 2009 Mr Ruffin served his minimum sentence of 15 months and was released from custody under various parole conditions. He completed his parole period on 12 December 2010.
Since his release, Mr Ruffin has been employed as a heavy plant operator. He has been running his own business since 2010. He is also a boat skipper and sub-contracts to Ozdive & Boat Charters (Ozdive). In order to do certain work for Ozdive, Mr Ruffin requires a Maritime Security Identification Card (MSIC).
In October 2011 Mr Ruffin applied for an MSIC to Clientview Pty Ltd (Clientview), an issuing body under the relevant regulations. Clientview refused his application on the grounds that Mr Ruffin had been convicted of offences listed in the regulations as relevant offences.
On 4 March 2012 Mr Ruffin applied to the Secretary, Department of Infrastructure and Transport, the respondent, to be issued with an MSIC. On 9 May 2012 a delegate of the respondent decided to refuse the application. On 17 July 2012 this decision was reconsidered and affirmed. Mr Ruffin now seeks a review of that decision by this tribunal.
THE HEARING
Mr Ruffin represented himself at the hearing and gave evidence under affirmation. Mr Daniel Marquet, of Corrs Chambers Westgarth, represented the respondent. I took into evidence:
·the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents);
·Mr Ruffin’s Statement of Facts and Contentions dated 18 October 2012;
·the Respondent’s Statement of Facts and Contentions dated 2 November 2012; and
·a chronology compiled by Mr Marquet.
THE LEGISLATION
The relevant legislation is contained in the Maritime Transport and Offshore Facilities Security Regulations (2003) (the Regulations) made under the provisions of the Maritime Transport and Offshore Facilities Security Act 2003 (the Act).
Regulation 6.08C relevantly provides that a person may be issued with an MSIC if a criminal history check shows that the person does not have an adverse criminal record. Regulation 6.08A states that a person has an adverse criminal record if he has been convicted of a maritime-security-relevant offence and sentenced to imprisonment. Regulation 6.07B defines a maritime-security-relevant offence as an offence relating to a matter included in Schedule 1 of the Regulations. Schedule 1 (at Item 2.30) includes supply, manufacture or cultivate illegal drug or controlled substance.
Regulation 6.08F(1) allows for a person with an adverse criminal record to apply in writing to the Secretary for approval to issue an MSIC to the person. Regulation 6.08F(5) lists the issues the Secretary must consider in determining whether the person constitutes a threat to the security of maritime facilities. They are:
(a) the nature of the offence the person was convicted of; and
(ab)if the person was convicted of the offence before becoming the holder of an MSIC; and
(b)the length of the term of imprisonment imposed on him or her; and
(c)if he or she has served the term, or part of the term – how long it is, and his or her conduct and employment history, since he or she did so; and
(d)if the whole of the sentence was suspended – how long the sentence is, and his or her conduct and employment history, since the sentence was imposed; and
(e)anything else relevant that the Secretary knows about.
Regulation 6.08X(3)(a)(i) allows a person to apply to the Secretary for reconsideration of the decision to refuse the issue of an MSIC. Regulation 6.08Z provides for an application to be made to this Tribunal for review of the decision made by the Secretary under Regulation 6.08X.
THE ISSUES
Mr Ruffin does not dispute his criminal record and accepts that it constitutes an adverse criminal record in accordance with the provisions of the Act. The only issues to be determined are whether Mr Ruffin constitutes a threat to the security of maritime transport or offshore facilities and whether he should be issued with an MSIC.
THE EVIDENCE
Mr Ruffin stated that he did not deny his record. He explained the background to his cannabis growing activities. He said that he had an expensive divorce from his first wife, that he was building a house and had to borrow money to meet the settlement payments. Mr Ruffin said that he was in financial difficulty and could not service the debt payments. He grew cannabis for 18 months. He said he was caught; served his time in gaol; and lost his home, family and reputation.
Mr Ruffin said that he was helped by his present wife and children. He said he tried to be a model prisoner and worked with children’s schools. After 15 months, he was released on parole. He stated that since his release, he has had no contact from police. He has since married but, at age 49, he does not yet own anything. He said he works at an earth-moving business to support his wife and family. He has a second job on a boat for which he needs an MSIC. Mr Ruffin stated he has gone back to school, studied at a TAFE and has acquired a maritime Masters and Engineers ticket. Mr Ruffin now wants to work with friends in the maritime industry.
In answer to questions from Mr Marquet, Mr Ruffin said that he met his present wife in 2002. He further testified that his offences started in 2005 and he bought his second property with borrowed money. He described his maritime work in Western Australia as skippering work boats for the construction of jetties and servicing buoys. Mr Ruffin stated his desire to invest in his friend’s firm, Ozdive.
I asked Mr Ruffin about the conviction for possessing an unregistered firearm. He stated that the item was a decrepit air rifle and that no penalty was imposed for that offence.
In his submissions, Mr Ruffin stated that he had no connection with terrorism. He contended that he was no longer a threat to maritime security and that his efforts to rehabilitate himself should be taken into account. He submitted that it was now five years since his sentence was imposed. In that time, he had worked hard, had changed completely and was genuine and sincere in his determination to make amends. If given the opportunity, provided by an MSIC, he submitted that he would never again put himself in the position of being sent to gaol.
In his submissions, Mr Marquet referred to the Secretary’s Statement of Facts and Contentions. In particular, he contended that trafficking a commercial quantity of cannabis was a very serious offence for which Mr Ruffin was sentenced to three years’ imprisonment. Mr Marquet pointed out that Duckett J in the County Court had imposed a term of imprisonment despite a plea for a wholly suspended sentence.
Mr Marquet acknowledged that Mr Ruffin was released on parole after 15 months. However, he contended that the two years since the end of the parole period was insufficient for the Tribunal to form a view that Mr Ruffin was fully rehabilitated.
Mr Marquet referred me to two prior decisions of the Tribunal relating to the issue of Aviation Security Identification Card (ASIC). He contended that the regulatory regime for the issue of ASIC was similar to that for the issue of MSIC. In Re Trevor Johnson and Secretary, Department of Transport and Regional Services [2006] AATA 573 (30 June 2006), the Tribunal decided that the applicant should not be issued with an ASIC. Mr Marquet contended that the applicant in Re Johnson had committed a number of offenses, more serious than those of Mr Ruffin and had been sentenced to imprisonment for terms of five years, four months, six months, and three and a half years respectively.
In Re Regan Travers and Secretary, Department of Transport and Regional Services [2007] AATA 1797 (24 September 2007), the Tribunal decided that the applicant should be issued with an MSIC with conditions. Mr Marquet contended that in Re Travers the applicant’s offence was not as serious as those of Mr Ruffin. The applicant was sentenced to only 12 months imprisonment, which was wholly suspended.
Mr Marquet contended that Mr Ruffin’s conduct and sentence was more serious than those in Travers but not as serious as those in Re Johnson. He also contended that Duckett J had not entirely accepted the family causes for Mr Ruffin’s offences. He submitted that the decision should be affirmed. In the alternative, he submitted that should the Tribunal decide to approve the issue of an MSIC, the approval should be subject to the same conditions as imposed in Re Travers.
CONSIDERATION
In determining whether Mr Ruffin constitutes a threat to the security of maritime transport or an offshore facility, I am obliged by Regulation 6.08F(5) to consider a number of factors. I will consider each in turn.
The nature of Mr Ruffin’s offence (sub-regulation (a)) was the trafficking of a commercial quantity of cannabis. Mr Marquet contends that this was a very serious offence and referred to Duckett J’s description of the offence as serious in his judgement. Mr Marquet submitted that the criminal conduct was pre‑meditated and planned and executed over a period of nearly three years. Mr Marquet submitted further that a sentence of three-year imprisonment is very significant. He noted further that Mr Ruffin’s parole period ended only two years ago.
In his Statement of Facts and Contentions, Mr Ruffin submits that:
… there was no Maritime component in my crime. At no stage did the police or prosecutors suggest that I had used any port, harbour, or Maritime facility in committing my crime. Only the broadest of terms can connect my crime with Australia’s Maritime Security. ...
In responding to this contention, the Respondent wrote:
The Secretary notes that there is no requirement in the legislation that the maritime-security-relevant offence be committed through or in the vicinity of a maritime facility. (RSF&C, p.11).
Mr Ruffin was convicted of the offence before becoming a holder of an MSIC (sub‑regulation (ab)). Indeed that is the issue.
Mr Ruffin was sentenced to three years’ imprisonment (sub-regulation (b)), of which he served 15 months. For the rest of his sentence, Mr Ruffin was on parole under various conditions for 21 months (sub-regulation (c)). In his Statement of Facts and Contentions, the Secretary states:
The Secretary is not aware of any adverse conduct engaged in by Mr Ruffin since the end of his parole period. Mr Ruffin appears to have been gainfully employed since his release.” (RSF&C p.9).
Mr Ruffin’s unchallenged evidence was that, since his release, he has changed completely and has worked hard to support his wife and family.
Sub-regulation (d) is not relevant in this case, as the whole of the sentence was not suspended.
In regard to other relevant matters (sub-regulation (e)), the Secretary referred to Mr Ruffin’s conviction in 1991 for cultivating a cannabis plant, for which he was placed on a $1,000 good behaviour bond.
In considering whether Mr Ruffin constitutes a threat to the security of maritime and offshore facilities, I note the seriousness and the pre-meditated nature of his offence and the three year term of imprisonment to which he was sentenced. I note also the findings of Duckett J in R v. Ruffin, Damien [2007] VCC 1614.
In his reasons for decision, Duckett J appeared sceptical of Mr Ruffin’s reasons for offending. He observed that, had Mr Ruffin sold his properties, he could have resolved his financial difficulties. However, from the evidence given at the hearing, I accept Mr Ruffin’s evidence that he cultivated cannabis in an attempt to pay off the considerable loans resulting from his divorce settlement. He appears to have taken a deliberate, albeit, extremely unwise decision. In reaching this opinion, I am influenced by his good behaviour during and after his imprisonment and parole period.
After his conviction and imprisonment, Mr Ruffin’s evidence is that he made another deliberate decision to be a model prisoner, to rebuild his life, and to work hard to support his wife and family. Duckett J noted favourably Mr Ruffin’s guilty plea and his cooperation with the police, volunteering information that would have been difficult to uncover. Mr Ruffin’s work history and the character references provided by three work colleagues and friends also support his evidence. I note further that the Secretary was not aware of Mr Ruffin engaging in any adverse conduct since his parole period and that Mr Ruffin appears to have been gainfully employed since his release. Indeed, Mr Ruffin’s evidence is that he has undertaken further studies and achieved the qualifications necessary for him to skipper a boat and provide the services required by Ozdive.
I consider Mr Ruffin’s evidence to be consistent with the history of someone who has made a bad decision in his earlier life, for which he paid a substantial price. However, since then, Mr Ruffin has accepted his responsibilities to his wife and family and is making a determined endeavour to improve himself and his life.
Before reaching a decision I need to consider the two cases cited by Mr Marquet. I agree with Mr Marquet’s contention that this case can be differentiated from Re Johnson. The offences and punishments in the Re Johnson case are considerably more serious than in this case. Mr Marquet contends, however, that the circumstances of this case are more serious than those in Re Travers. In Re Travers, the applicant had been sentenced to only 12 months imprisonment, a sentence which was wholly suspended. Further, Mr Travers had no other criminal convictions, unlike Mr Ruffin.
Nevertheless, in reaching my decision, I take into account Mr Ruffin’s obvious efforts to improve his life and his evidence of a determination to support his wife and family. I accept also his evidence of his intention to never again put himself in such a situation. Accordingly, I consider that on the balance of probabilities Mr Ruffin is not likely to be any more of a risk to maritime security than any other person, if I accede to his request for the issue of an MSIC.
Finally, I have regard for Mr Marquet’s submissions that insufficient time has passed to be sure that Mr Ruffin is following the path he says he has set himself. I consider that the imposition of appropriate conditions will assist in gaining such surety over a reasonable period of time. During submissions at the hearing, I asked for the views of both parties on the applicability and acceptability of the conditions imposed by the Tribunal in Re Travers. Mr Marquet agreed that they would be acceptable and Mr Ruffin stated that he would have no difficulty in complying with them.
Accordingly, I set aside the decision under review and in its place order that Mr Ruffin be granted an MSIC under Regulation 6.08, with the following conditions:
(a)that the identification card be issued for an initial period of two years; and
(b)that Mr Ruffin be subjected to drug testing during this initial period, at the discretion of the Secretary or his or her delegate; and at a frequency and at places reasonably directed by the Secretary or his or her delegate; and
(c)that a report be provided to the Secretary as to Mr Ruffin’s good conduct and performance by his employer annually for the initial two-year period; and
(d)these conditions be lifted at the end of that two-year period, provided that there have been no positive drug tests, unsatisfactory performances and no further criminal convictions in that period; and
(e)if these conditions are not satisfied for the duration of and at the end of the two-year period, the Secretary should extend or terminate this probationary period as he or she sees fit.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of
Mr Conrad Ermert, Member[sgd]........................................................................
K. Randall, Associate
Dated 4 February 2013
Date of hearing 17 December 2012 Applicant In person Solicitors for the Respondent Mr Marquet, Corrs Chambers Westgarth Solicitors
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