Hanna v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 32

CITATION:	Hanna -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 32
DIVISION:	General Division
PARTIES:	APPLICANT Fikri Hanna RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	993235
HEARING DATES:	14/02/00
SUBMISSIONS CLOSED:	02/28/2000
DATE OF DECISION:	03/29/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Security Industry Act 1997
CASES CITED:	Fenton -v- Commissioner of Police 2000 NSWADT 16 (23 February 2000) Derisi -v- Vaughan [1983] 3 NSWLR 17 Botros -v- Commissioner of Police [2000] NSWADT 6
REPRESENTATION:	APPLICANT In Person RESPONDENT Commissioner of Police, New South Wales Police Service
ORDERS:	1. Decision of the Commissioner of Police to revoke the applicant's licence is affirmed.

1 On 11 June 1999 Mr Hanna was notified by the Security Industry Registry attached to the Police Service that his security licence had been revoked because he had been convicted of a prescribed offence involving fraud, dishonesty or stealing. Mr Hanna had been convicted of larceny for which he was fined $800 on 15 March 1999.

2 At Mr Hanna’s request the Commissioner conducted an internal review of this decision. On 15 September 1999 the Commissioner notified Mr Hanna that the original decision was affirmed for the same reason.

3 On 11 October 1999 Mr Hanna lodged an application with the Tribunal seeking a review of the decision of the Police Commissioner to revoke his security licence.

4 On 27 January 2000 the Commissioner filed an Amended Statement of Reasons changing the basis of his decision to revoke Mr Hanna’s licence. The amended reasons relied on three grounds for revoking the licence:

• that Mr Hanna was no longer a fit and proper person to hold a licence;
• that it would not be in the public interest for Mr Hanna to continue to hold a licence; and
• the Commissioner would be required to refuse Mr Hanna a licence if he was applying for a licence.
Legislation

5 The three ground for revocation relied on by the Commissioner in the Amended Statement of Reasons are set out in the Security Industry Act 1997 (the Act) and the Security Industry Regulation 1998 (the Regulation) in the following terms:

Section 26 of the Act

(1) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of that class, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

Clause 18 of the Regulation

The Commissioner may, in accordance with s 26(1)(d) of the Act, revoke a licence, if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

6 The Act allows the Commissioner to revoke a licence merely by advising the person concerned that the licence is revoked. Under s 26(2) of the Act:

2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.

Findings of fact

7 The offence in this case involved stealing $84.00 worth of toiletries. Mr Hanna stole the items from a shop in the complex in which he was employed as a security guard. The incident took place when Mr Hanna had his security guard uniform on but after he had finished work. He admitted stealing the items and paid for them after he was arrested. He pleaded guilty to the offence. The only explanation he could offer was that he and his wife had just had a new baby and he did not want to use his savings.

8 Mr Hanna has been working in the security industry since December 1998. He provided the Tribunal with a short statement and two references. The statement stated, in part, that:

I regret on what I did and I will promise not to do it again.

I need this license very badly, because I need work in the security force. As it is my best qualification in this country.

So please forgive me for this is my first crime in my life and I will promise it will be the last and I assure you I am fit and proper person to hold a security licence.

9 One of the references was from the Parish Priest at the Archangel Michael and St Bishoy Coptic Orthodox Church. The Priest said that:

Since the incident in question, Mr Hanna has expressed great regrets in relation to what he has done. He has shown great efforts towards repentance by regular confession and attendance to church services.

10 The other reference was from the Managing Director of Alfadi Services Pty Limited, a security company, stating that he is respected within the community and he would recommend him for any position in the company.

Tribunal’s reasoning and decision

11 The most obvious source of the Commissioner’s power to revoke Mr Hanna’s licence is in s 26(1)(a) of the Act. As stated above, that section allows the Commissioner to revoke a licence for any reason for which the licensee would be required to be refused a licence of that class.

12 Section 16(1)(a) of the Act states that:

1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law

13 The Regulations prescribe offences involving fraud, dishonesty or stealing in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more. Section 117 of the Crimes Act 1900 provides that:

117. Whosoever commits larceny, or any felony by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to penal servitude for five years.

14 Consequently, if Mr Hanna applied for a licence now, the Commissioner would be required to refuse it. In Fenton v Commissioner of Police 2000 NSW ADT 16 (23 February 2000) I discussed the meaning of s 26(1)(a) at [15] in the following terms:

In this case, s 26(1)(a) confers a power on the Commissioner to revoke a licence. This conclusion is supported by the fact that the word "must" is used in s 16 (1) in relation to applications for licences but "may" is used in s 26(1)(a) in relation to revocations. The conclusion is further supported by the analysis of the Court of Appeal in Derisi v Vaughan [1983] 3 NSWLR 17. In that case, the Court was considering a similar licensing scheme under the Commercial Agents and Private Inquiry Agents Act 1963 . The provision in question was s 11(1) which provided that a person who is licensed as a private inquiry agent may be required to show cause before a magistrate why his licence should not be cancelled. Section 11(2) provides that on being satisfied of the truth of any of the grounds specified in s 11(1) the court "may" order cancellation. The Court of Appeal interpreted "may" in this context as conferring a discretionary power on the court. Their Honours, Glass, Mahoney and Priestley JJA stated at 22 that:
It is conceivable that there could be some reason, such as completion of work for some particular client, why a magistrate might allow a licensee to retain his license for the balance of the then current year; it might well have been also that the occasions when a magistrate could be so persuaded would be very few; one would think that in most cases the existence of the ground would incline the court to exercise its discretion in favour of cancellation rather than the opposite. The point was however that the policy of the Act to prevent the grant or renewal of a license when one of the relevant grounds existed does not seem inconsistent with the court being left with the very limited discretion involved in permitting a licensee to retain his license for the balance of its current year, if a sufficiently strong case had been made to persuade the magistrate to do so.

15 There was no evidence of any particular reason why Mr Hanna should be allowed to retain his licence for the balance of its current period. In any event, the Commissioner will be required to refuse Mr Hanna’s next application for a licence when the current licence expires. In these circumstances I am of the view that the Commissioner made the correct decision in revoking Mr Hanna’s licence under s 26(1)(a) of the Act.

16 This conclusion makes it unnecessary for me to consider the other two grounds for revocation.

17 I would like to make a final comment in relation to the law as set out in the Commissioner’s Amended Statement of Reasons at paragraph 3. I do not agree with the statement of law in relation to the comments about evidence of remorse and contrition. The Commissioner suggested that evidence of remorse and contrition and solid testimonials do not assist when deciding whether an administrator has made the correct and preferable decision (Botros v Commissioner of Police [2000] NSW ADT 6 at 30). I do not agree that Botros is authority for that proposition. The Tribunal decided in that case that “evidence of remorse and contrition and the solid testimonials tendered” did not assist the applicant in that case. However, evidence of remorse and the testimonials of others is generally relevant to the question of whether a person is a fit and proper person to hold a security licence. Whether or not that evidence alone or in combination with other evidence persuades the Tribunal to set aside the administrator's decision is another matter.