Haynes v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 52

CITATION:	Haynes -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 52
DIVISION:	General Division
PARTIES:	APPLICANT Michael Conrad Haynes RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003214; 003256
HEARING DATES:	2 March 2001
SUBMISSIONS CLOSED:	03/02/2001
DATE OF DECISION:	03/28/2001
BEFORE:	Wilson K - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996 Security Industry Act 1997 Mental Health Act 1990
CASES CITED:	Tran No. 2 -v- The Commissioner of Police, New South Wales Police Service (2000) NSWADT36 Botros-v-Commissioner of Police, New South Wales Police Service (2000) NSWADT6
REPRESENTATION:	B Niven, barrister J Tunks, solicitor
ORDERS:	1. The decision of the Commissioner to revoke the master licence under the Security Industry Act and to revoke a firearms licence under the Firearms Act is set aside.

Introduction

1 On 28th August 1998 a Master Licence was issued to the Applicant under the name of Haynes Holdings Pty Ltd under the Security Industry Act 1997. On 19th March 1999 the Applicant lodged an application for a Class 1ABC and 2BC licence under that same Act.

2 The Applicant, Mr Haynes was also issued with a Category H Firearms Licence on the basis of having a genuine reason for business purposes, that is his work as a security guard, on 16th February, 1998.

3 On 19th June 1999 the Applicant was charged with the offence of shoplifting and because this matter had not been dealt with, the Licence, which he applied for in March 1999, was approved.

4 On 11th May, 2000, the Applicant appeared at Penrith Local Court and was found guilty of the offence of shop-lifting with no conviction being recorded and a requirement that he enter into a Good Behaviour Bond for a period of 12 months.

5 As a result of these proceedings, on 15th June, 2000, Notices of Revocation of the Security Industry Licences was served on him and on the 12th July 2000 a Revocation Order was served on him for his Category H Licence, under Clause 69 of the Firearms (General) Regulation, 1997, on the basis that a current Firearms Accreditation training course had not been completed. The nexus between both licences is that Mr. Haynes held the Firearms Licence on the basis that he had a business reason to hold the licence, that is it related to his security industry business.

6 Both decisions were subject of an Application for Internal Review which on both occasions came to the conclusion that the original revocation decision should stand.

The Issue

7 The main focus of the issue before the Tribunal is the question as to whether or not Mr. Haynes is a fit and proper person to hold a licence under the Security Industry Act and whether it is in the public interest for him to hold such a licence. See Section 15 (1) (a) and Section 15 (3) of the Security Industry Act.

8 The previous decision makers took the view that since Mr. Haynes had been convicted of an offence of dishonesty, which is a prescribed offence under the Regulations, then he would not have been issued a licence had he applied for one and accordingly that was sufficient grounds for the Commissioner to exercise his discretion to revoke the licence.

9 There was uncontested evidence before the Tribunal that Mr. Haynes has been involved in the Security Industry for some twenty years. He came to the Industry after he had been involved in a severe work-related accident, which left him with on-going and high-level pain and discomfort in his shoulder and arm area. It was also uncontested that Mr. Haynes has been receiving on-going treatment for the management of this pain, which involves taking drugs under controlled circumstances to alleviate his on-going suffering.

10 The matter originally came to the Tribunal on the basis that Mr. Haynes submitted that his state of mind at the time that the offence was committed was not such that he could be deemed to have intended to have carried out the act for which he was convicted. There was significant amount of evidence from psychologists as to his background and circumstances and there was some evidence submitted by the Commissioner of Police in relation to this question as it affected his state of mind at the time that the offence was committed.

11 The physical aspects of the offence involved the circumstances where Mr. Haynes had gone to a retail outlet and had picked up two DVD disks for home viewing. He says that his attention was then taken to some other software products and since he was holding a large bank deposit book under his arm, he had the two DVD disks near that book. However, he said that they were slipping out of his grasp and while he was looking at the other software products, which he then decided that he would like to buy, he had placed the two disks inside the book to secure them.

12 He said that he realised that he didn’t have his cheque book with him and he decided to leave the store and go to his vehicle which was some hundred metres away, to get this cheque book and return to the store and buy the software package that he had come upon.

13 As he left the store, he was followed by store security personnel, and when he got close to his vehicle he was apprehended.

14 The police were called and Mr. Haynes was charged.

15 At the Hearing in the Local Court there was a challenge under the Mental Health Act as to whether or not his state of mind was sufficient at the time to satisfy the requirement of criminal intent. The basis on which this case was run was similar to the matters that were being put to the Tribunal. As well as Mr. Haynes’ on-going treatment for his chronic pain, he had, approximately one week before the incident, had all of his teeth removed, including his wisdom teeth. At the time that the offence was committed he was taking strong Panadol tablets for pain relief and he submitted to the Local Court that he was suffering from the after effects of the anaesthesia, some one week before, and the on-going ingestion of pain relief tablets. He said that his wife had noticed him being forgetful about some issues.

16 It was agreed by both Counsel before the Tribunal that this matter was addressed before the Local Court however the submission was not accepted and the Applicant was then given the opportunity to have the matter dealt with then and there in the Local Court. His plea followed, and the matter was dealt with by a conviction not being recorded and him being placed on a twelve months Good Behaviour Bond.

17 The Tribunal indicated to the Applicant that it would not see its role as revisiting the issues determined under the Criminal Justice System in the Local Court. However, the Tribunal was concerned, particularly in relation to the question of whether or not the Applicant was a fit and proper person to establish the degree to which he accepted his culpability for these events.

18 In evidence before the Tribunal, Mr. Haynes indicated that he still had no idea how he managed to behave in such a way, that he left the store with the items that were not paid for. However in his evidence he indicated that some time just prior to getting to his vehicle and before he’d been apprehended by the security personnel, he had realised that he had the two items with him. His decision at that time was to continue to the vehicle to get his cheque book and then return to the store and pay for the two items he had with him plus the software package. He accepted, before the Tribunal, that this decision involved the fact that he understood that there was a moment in time in which he was cognisant of the fact that he had material from the store that had not been paid for.

The question of ‘fit and proper’

19 As previously indicated, Mr. Haynes has been involved in the Security Industry for over twenty years. In that time there is no evidence of any complaint against him in terms of the manner in which he carries on his business. There are no outstanding issues under the new licensing regime.

20 Mr. Haynes’s business involves him working for some regular clients for whom he provides a variety of services. When he has a larger task to carry out, he subcontracts to various personnel to achieve those particular tasks. His business does involve safe carriage of cash and other financial security issues as well as what might be described as patrol work.

21 There is no doubt that he has faced significant difficulties with managing the chronic pain that he has from the severe injuries he received many years ago. It is also fair to assume that the affects of the oral surgery which he had undertaken a week before the incident in question, would have also had some impact on him.

22 The question before the Tribunal was whether in all these circumstances Mr. Haynes is still a fit and proper person to hold a Security Industry licence. In coming to a view in this, the Tribunal believes that it is appropriate to look at all the circumstances of the case before it. The Tribunal is also aware that in the recent decision of Tran No. 2 -v- The Commissioner of Police, New South Wales Police Service (2000) NSWADT36, where it was held that the obligations and responsibilities on people who hold Master Licences under the Security Industry Act are more onerous than those that apply to a person who is merely employed in the industry.

23 In the matter of Tran No.2-v-The Commissioner of Police there were a number of criminal offences and Mr. Tran is described as a young man who is starting out in the industry.

24 The Tribunal believes that Mr. Haynes’s case can be distinguished due to the fact that he is a middle-aged man who has been running the security business for some twenty years. There is nothing in the material before the Tribunal that suggests that apart from this particular incident, that Mr. Haynes has carried on his business in anything other than an appropriate manner. The other distinguishing fact is that this is one isolated incident which undoubtedly comes within the range of prescribed offences which would enliven the mandatory refusal provisions if the application were being made for a new licence. However the incident, in context, does not demonstrate a departure from standards in such a manner that it should outweigh the other factors before the Tribunal. The Tribunal therefore believes that there are matters which distinguish this case from the matter of Tran No.2-v- The Commissioner of Police.

25 In the Tribunal’s decision in Botros-v-Commissioner of Police, New South Wales Police Service (2000) NSWADT6, the distinction between the exercise of mandatory refusal on an application and the discretionary power that relates to the revocation of a licence is clearly stated in that the revocation issue does involve the exercise of judgement. Discretion, in essence, is judgement and should be carried out on the basis of commonsense and having available all the particular information that it applies in the context of the particular matter under consideration.

26 In a case such as this where there is one isolated incident, the Tribunal believes that the proper exercise of discretion is to consider all the relevant factors in the particular case before coming to a decision. In this case the Tribunal does not believe that the original decision maker and the reviewing officer took into account a sufficiently wide number of matters before exercising that discretion. As has been stated above, the Tribunal considers that the Applicant’s track record in the industry, in which he has been operating for a considerable time, should be taken into account, as well as the particular circumstances that surrounded the incident that led to the applicants appearance in court on the shoplifting charge.

27 For these reasons, the Tribunal has come to the view that the proper exercise of discretion should be in the Applicant’s favour, on the basis of all the particular matters involved in this case.

28 As was indicated above, the issue of whether or not the Applicant continues to hold his Firearms Licence, is directly related to the question of his capacity and need for such a licence to carry out his business in the Security Industry. Whilst the revocation of the Firearms Licence related to the non-attendance of an accreditation course, this came about due to the fact of the question as whether or not the Applicant would be able to hold a Firearms Licence if he were no longer in the Security business.

DETERMINATION

29 The decision of the Commissioner of Police to revoke the Applicant’s Security Industry licence is set aside. The decision of the Commissioner of Police to revoke the Applicant’s Firearms Licence is also set aside on the basis that the Applicant still needs to satisfy the Commissioner’s requirements in relation to the Firearms Accreditation Course and this needs to be completed within a reasonable time.