| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : HERRINGTON and COMMISSIONER OF POLICE [2014] WASAT 22 MEMBER : MR T CAREY (MEMBER) HEARD : 14 JANUARY 2014 DELIVERED : 24 FEBRUARY 2014 FILE NO/S : VR 127 of 2013 BETWEEN : PETER HERRINGTON Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords: Security agent's and other licences under Security and Related Activities (Control) Act 1996 (WA) Grant of licences refused Fit and proper person Effect if prior convictions Failure to disclose old convictions Legislation: Inquiry Licensing Agents Act 1954 (WA)
Security and Related Activities (Control) Act 1996 (WA), s 4A, s 21, s 46, s 52(1)(c), s 72(1)
Security and Related Activities (Control) Regulations 1997 (WA), r 25(2) Result: Application for review successful
Summary of Tribunal's decision: The applicant sought review of decisions of the Commissioner of Police not to grant his applications allowing him to act as a security agent, security installer and security consultant under the Security and Related Activities (Control) Act 1996 (WA) (Act). The Commissioner had refused the applications on the ground that he is not a fit and proper person, having regard to the applicant's criminal record, charges then pending for breaching the licensing provisions of the Act, and failing to disclose his full history of convictions.
At the hearing, the Commissioner also relied upon more recent conduct, which he contended constituted a breach of a different section of the Act. By the time the proceeding was heard, the applicant had been convicted on three of the charges against him.
The Tribunal examined the meaning of 'fit and proper person' and how the concept is to be applied to a person with a criminal record, before dealing with the different elements of the Commissioner's case against the applicant.
The Tribunal considered all the applicant's convictions for offences under the Act. It found that as a result of his experiences, he now accepted the need for the licences sought in order to undertake activities he previously considered did not require a licence. The insight thus demonstrated went to his credit.
The Tribunal declined to attach any weight to the claim that the applicant had continued to breach the Act, on the basis that the claim had not formed part of the Commissioner's documentary case, the evidence relied upon at the hearing to support the claim was limited, and no charges had been laid in relation to the matter.
The Tribunal also rejected a contention that a number of serious offences for which the applicant was convicted 18 years earlier indicated a general disregard for the law, given the absence of similar conduct over such a lengthy intervening period.
The Tribunal expressed some concerns over the applicant's evidence regarding his failure to disclose, in the written application for the licences, his older convictions. However, it concluded that the failure was attributable to carelessness rather than deliberate evasion. The lack of materiality of the convictions in question also militated against the impact of the omission on the fit and proper issue.
The Tribunal set aside the Commissioner's decision and ordered that the licences applied for be issued.
Category: B
Representation: Counsel:
Applicant : Mr JA Sutherland
Respondent : Ms A Sukoski (Acting as Agent)
Solicitors:
Applicant : McDonald & Sutherland
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Chan and Director-General Department of Transport [2013] WASAT 144
Grover v Commissioner of Police [2005] WASC 263
Minitti v Commissioner of Police [2010] WASCA 198
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 6 May 2013, Mr Peter Herrington (Mr Herrington) applied under s 46 of the Security and Related Activities (Control) Act 1996 (WA) (Act) for a security agent's, security installer's and security consultant's licence under the Act. 2 By letter dated 6 June 2013, the Commissioner of Police (Commissioner), through his delegate licensing officer, Mr Hicks, notified Mr Herrington of his decision not to grant Mr Herrington the licences applied for on the basis that Mr Hicks was not satisfied that Mr Herrington was a 'fit and proper person' to hold them as required by s 52(1)(c) of the Act. According to the letter, this was due to the following: 3 On 4 July 2012, Mr Herrington filed his application with the Tribunal seeking review of the refusal decision under s 72(1) of the Act. The review proceeding took much longer than normal for matters of this kind to get to a hearing, by reason principally of Mr Herrington's desire that the pending charges be heard and determined, and the Commissioner's acquiescence with that course. In the event, three of the six charges pending at the time of the original decision were sustained. 4 Mr Herrington has what can reasonably be described as a lengthy criminal history dating back to the early 1980s. The history can also be characterised as comprising three quite distinct phases. During the 1980s, Mr Herrington was convicted of a number of offences of dishonesty, including forgery, uttering and false pretences. In 1996, he was convicted on 10 charges concerning improper sexual dealings with a child under 16, for which he received a sentence of imprisonment for seven years, of which he served three. Finally, in 2012 and 2013, he was convicted on five charges of acting without a licence under the Act when a licence was required. 5 Although relying upon the entirety of Mr Herrington's criminal history, understandably, the Commissioner places greatest emphasis upon the relatively recent offences under the Act. He also relies upon the 1996 sexual offences as indicative of Mr Herrington's alleged disregard for the law. 6 In addition to the criminal history, the Commissioner contends that particular negotiations undertaken by Mr Herrington with the Shire of East Pilbara during 2013 contravened a provision of the Act prohibiting a person from holding himself out as willing to supply various security services unless he holds a security agent's licence. 7 Finally, the Commissioner points, as a further factor militating against the claim to be a fit and proper person, to the omission from the written application completed by Mr Herrington for the issue of the three licences of any of his convictions more than 10 years old. 8 The issue for the Tribunal is whether, having regard to the matters upon which the Commissioner relies, Mr Herrington is or is not to be regarded as a fit and proper person for the purposes of his application for the licences sought. 9 After dealing briefly with the meaning of the central concept of 'fit and proper person' and its application, I will consider the matters relied upon by the Commissioner under the following headings: (a) Recent convictions under the Act. (b) Allegation of further recent breach of the Act. (c) 1996 sexual convictions. (d) Omissions from application document. (e) Responses to observations in Tavelli v Johnson, to the extent not already discussed (I make reference to this authority shortly).
What does 'fit and proper person' mean? 10 There has, of course, been much judicial comment on the application of a 'fit and proper person' test in a variety of contexts. The following instructive example appears in the decision of the Western Australian Court of Appeal in Minitti v Commissioner of Police [2010] WASCA 198 at [11]: … The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2](1955) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey[2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson(Unreported, WASC, Library No 960693, 25 November 1996); Re Jones; Ex parte The Commissioner of Police[1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321, 348. In Tavelli, Wheeler JA observed that prior convictions may be relevant to an application if they represent a course of disregard for the law as to reflect adversely on the character of the person committing them[.] 11 In Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996 (Tavelli), the final decision referred to in the above excerpt, Wheeler JA (as she then was) was concerned with the application of the 'fit and proper person' test in the context of a precursor of the Act, the Inquiry Agents Licensing Act 1954 (WA). Her Honour made a number of observations about the significance of prior convictions. Having noted that there can be no inflexible rules nor policy, but the discretion falls to be exercised anew in the circumstances of each application in light of the statutory framework, Her Honour said: … some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if: (1) they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420; (2) they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty; (3) they occur while the person is the holder of a licence under the Act; (4) they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them. Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors: (1) where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words; (2) if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others; (3) any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; (4) a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
Convictions under the Act in 2012 and 2013 12 Although determined on two different dates, the five relevant convictions can conveniently be dealt with together. Subject to one aspect to which I will refer, the second set of convictions cannot be regarded as instances of recidivist behaviour, because the offences occurred prior to the first two convictions. 13 On 18 May 2012, Mr Herrington was convicted on one charge of acting as a security consultant without a licence and one charge of acting as a security installer without a licence. He was fined $5,000 and received spent convictions for both offences. 14 The offences arose out of the same course of conduct, involving Mr Herrington contracting with the City of Stirling to install CCTV cameras in an area known as the Beaufort Street Precinct, and, with another person, installing them. 15 In contesting the charges that, in each case, he acted without a licence when only licensed persons could so act, Mr Herrington contended that the system he contracted to, and did, install was not for the purpose of security, but for surveillance. The Magistrate not agreeing with his argument, Mr Herrington was convicted on both charges. 16 On 28 November 2013, Mr Herrington was convicted on two further counts of acting as a security installer without a licence and one count of acting as a security agent without a licence. In relation to one of the unlicensed installation charges, Mr Herrington was found to have undertaken maintenance work of security cameras at the Perth Zoo. Mr Herrington's defence was along the lines that he was able to inform the Perth Zoo's officer, upon the officer simply turning the power on and off, that a camera she thought not to be working was operable, and most of his time spent at the Perth Zoo on the relevant day concerned transfer of images from the Perth Zoo's computer. The Magistrate rejected Mr Herrington's characterisation of events. 17 The other unlicensed installation conviction, and the conviction for acting as a security agent without a licence, concerned a CCTV security system at a facility within the Town of Kwinana. One aspect of Mr Herrington's defence was that the $300 he charged was to cover his travel. Mr Herrington also said that he did nothing to any camera, although admitted discovering a faulty wireless device, to which he attended. Once again, the Magistrate rejected Mr Herrington's defence and found that he had engaged in an act of security installation. By reason of the same circumstances, he was found to have also acted as a security agent. 18 In reaching his decisions in relation to the Town of Kwinana offences, the Magistrate found that the relevant work of Mr Herrington was performed between 26 April 2012 and 15 June 2012. The invoice for the work (which Mr Herrington argued, unsuccessfully, was for travel) was rendered on 15 June 2012. Part of the period of the unlicensed activity, including the rendering of the invoice, was thus after the 18 May 2012 convictions concerning the Beaufort Street Precinct. This fact, although mentioned by the Commissioner's representative, received little prominence. Given the quite specific defence relied upon in relation to the Beaufort Street Precinct charges, I do not regard the convictions on those charges as reasonably putting Mr Herrington on any higher degree of alert in relation to his Town of Kwinana activities than he otherwise should have been by reference to the licensing provisions of the Act. 19 The first of the Tavelli factors tending towards a conviction being regarded as more serious is where it occurs in the course of, or related to, the carrying out of the relevant occupation. It might be expected that any decision-maker would take a dim view of someone seeking the very licence the need for which he chose to ignore. On the other hand, where a putative licensee previously considered, incorrectly, that certain conduct fell within the range of activities for which a licence under the Act is required, and accepts the need for the licence by applying for it, it might also be considered that the person has, by his experience, gained the insight included in one of the Tavelli factors in mitigation so as to be still amenable to recognition as fit and proper. 20 Despite Mr Herrington persisting with his view that none of his actions the subject of the charges against him, and upon which he was convicted, represented the activities of a security installer, security consultant or security agent, he has, by his actions, accepted the reality that he requires the relevant licences in order to engage in similar conduct in the future. Indeed, his application for the three licences and his subsequent application to the Tribunal manifest a certain determination to regularise his position to that extent. I have decided on this basis that Mr Herrington's offences should not be considered as invoking the first Tavelli factor, and further, that his subsequent conduct constitutes an example of insight which is to his credit. 21 I will deal with Mr Herrington's protestation of innocence in relation to his recent convictions in the final substantive section of these reasons.
Alleged recent contravention of the Act 22 At the hearing, for the first time (the Commissioner not referring to it in any of its filed documents, most notably its statement of issues, facts and contentions), the Commissioner sought to establish that in the latter half of 2013, Mr Herrington, through IP Cameras Australia, dealt with the Shire of East Pilbara in relation to the latter's requirements for a CCTV system connecting with the police station in the town of Newman in a manner contrary to s 21 of the Act. Mr Herrington denies the allegation. 23 Section 21 of the Act prohibits a person not a holder of a security agent's licence from, relevantly to the Commissioner's claim, holding out that he is willing to supply the services of security installers. That Mr Herrington had breached this prohibition is clear, according to the Commissioner, from a letter signed by him and the principal of another firm, Zenien, advising that IP Cameras Australia and Zenien were willing to contract with the Shire to supply it with 'wireless connectivity to the Police station for the existing and future surveillance CCTV system'. 24 In cross examination, Mr Herrington confirmed that negotiations occurred with the Shire as reflected in the co-signed letter, which, if successful, would have resulted in Zenien providing any installation services. Once again, Mr Herrington relied on the lack of any payment for his 'consultation service', as distinct from the cost of any hardware supplied. As the Commissioner points out, payment does not constitute an element of an offence under the relevant section. 25 It is important that the main elements of a party's case before the Tribunal be disclosed in that party's statement of issues and contentions (and, to the extent this has not occurred in the original statement, the position be rectified by the filing of an amended or supplementary statement). The observations I made on the same topic in Chan and Director-General Department of Transport [2013] WASAT 144 at [18] are apposite. 26 In this matter, the importance of the allegation of a recent breach of the Act to the Commissioner's case became clear in the Commissioner's closing oral submissions, when it was submitted that the alleged breach represented the latest example of Mr Herrington's erroneous interpretation of the legislation, which, according to the Commissioner, has been his 'downfall'. 27 Despite the lack of any objection at the hearing to the introduction of this new ground for affirming the refusal decision, as a matter of fairness, I have approached it on the basis that the evidentiary basis for the ground requires a level of critical analysis over and above what might otherwise be applied in cases of this kind. 28 The scope of the evidence before me is limited. Of all the potential evidence from each of the players in the relevant dealings, the evidence is limited to a letter co-signed by Mr Herrington, and a truncated version of the events adduced from Mr Herrington in cross examination and re-examination. 29 Although I was concerned enough, based on the evidence, to suggest to Mr Herrington that he obtain legal advice specifically on the implications for his business of s 21 of the Act, no charges have been laid under the provision. Mr Herrington in re-examination stated that his negotiations with the Shire of East Pilbara were discontinued due to doubts about the legality of his involvement. 30 I am unable to invoke the observations of Johnson J in Grover v Commissioner of Police [2005] WASC 263, particularly at [47], concerning the relevance of as yet unproven criminal charges to a determination of whether the person charged is of 'good character' (being the accompanying qualification found is s 52(1)(c) of the Act of 'fit and proper person'). This follows as I do not have the benefit which exists in such cases of a police officer having considered that prima facie evidence existed in relation to the offence being alleged. It might be different if and when any charge is laid against Mr Herrington. 31 For these reasons, I place no weight upon the Commissioner's allegation that Mr Herrington has recently acted in breach of s 21 of the Act, nor upon the evidence brought before the Tribunal in support of that allegation.
Sexual convictions in 1996 32 In 1996, Mr Herrington was convicted on seven counts of indecent dealing with a child under 16 and three counts of sexually penetrating a child under 16. He received a prison sentence of seven years of which he served three. His convictions were the subject of an unsuccessful appeal. At the hearing before me, Mr Herrington maintained that he was wrongfully convicted. 33 Given their age, the sexual misconduct convictions are not claimed by the Commissioner of themselves to disqualify Mr Herrington. However, they are relied upon, consistent with the fourth of the factors identified in Tavelli as tending to show that convictions are the more serious, as representing a course of disregard for the law so as to reflect particularly adversely on the perpetrator's character. 34 There is no question that the 1996 convictions reflected poorly on the character and propriety of Mr Herrington when he was a young man (at that time, they may well have properly been considered together with his dishonesty convictions in the 1980s). However, in the 18 years which have passed, with no suggestion of similar misconduct, I disagree that they can now reasonably be regarded as indicative of a continuing general disregard for the law. It is the offences under the Act in recent times, of a completely unrelated character, which need to be assessed in order to make a determination on the fit and proper question.
Omissions from Mr Herrington's licence application 35 There is no question that Mr Herrington omitted, in response to a question in the application document 'Have you ever been convicted of any offence in a Court of Western Australia or elsewhere?', to refer to any of his convictions which were more than 10 years old. His evidence about the antecedents to this failure was somewhat problematic. 36 In his witness statement, Mr Herrington said that as he filled out the application form in the Commissioner's licensing branch office, he told a lady behind the counter that he had two convictions under the Act, further prosecutions were to occur, and he had some convictions more than 10 years old. According to the statement, the lady left the room and after a few minutes came back and told him 'that the convictions under the Act and the 10 year plus convictions did not bar my application, so she could process it'. 37 The effect of Mr Herrington's oral evidence is that he mentioned to the female officer with whom he dealt that under the Security and Related Activities (Control) Regulations 1997 (WA) (Regulations), the disqualifying period applying to persons convicted of a serious (Division 1) offence ends after 10 years (see s 4A of the Act and r 25(2) of the Regulations). The officer was not aware of the provision and went out the back to obtain information. Mr Herrington's evidence as to what the officer told him on her return varied, across a number of occasions he was asked to recount it, from being limited to the comment in his written statement (that the convictions did not bar his application), to including, as either the additional, or only, comment, that it was not necessary to refer to the old convictions in the application form. 38 The Commissioner relies upon the clear instruction in the form, which Mr Herrington, a person with more knowledge than most in relation to licensing requirements under the Act, should have been aware needed to be followed. It was also submitted (a submission which has some force) that any reference by the officer at the counter to offences not being listed in the form is likely to have been to Mr Herrington's pending charges, and not his old convictions. 39 Despite my impression, based on his oral evidence, that, at times, Mr Herrington is willing to maintain a stance previously adopted despite indications that the stance is incorrect or needs adjustment, and he remains unperturbed by established inconsistences in his own evidence on the way to settling upon a final version, I found his evidence as finally given to be essentially credible. 40 On this basis, I consider it more likely than not that Mr Herrington misunderstood the relevance of the 10 year stipulation throughout his discussion with the licensing branch officer. That stipulation had a bearing on the significance of convictions of greater than 10 years to whether or not Mr Herrington was a 'disqualified person' under s 4A of the Act, but, on the face of it, not on the issue of their disclosure in the application form. I also consider it more likely than not that, regardless of what the officer actually said to Mr Herrington following her absence from the room, he inferred (wrongly) from whatever she said that it was not necessary to include his aged convictions in the form, despite the written instruction. His error is therefore one of carelessness, rather than deliberate evasion. 41 Further, even if, contrary to my finding, Mr Herrington made his own independent decision not to include his old convictions on the application form, the lack of materiality of those convictions militates against the non-disclosure having more than a marginal impact on the final assessment.
Consideration of other Tavelli factors 42 My reasoning to this point encapsulates those factors which Wheeler J considered might result in convictions being considered more serious in the evaluation of character or fitness and propriety, and also two of her Honour's mitigating factors. In this section I will deal with the remaining factors of mitigation to the extent this is necessary. 43 I have already found that Mr Herrington does qualify for mitigation under the first factor; any demonstration of genuine remorse, contrition, 'true insight and understanding of the earlier turpitudes'. I did so on the basis that, by his conduct seeking to regularising his unlicensed status, he has demonstrated insight. 44 The Commissioner points out that Mr Herrington's continued protestations of innocence, specifically in relation to his convictions under the Act, inevitably results in the absence of any remorse or contrition. That much might be accepted. But, in a sense, his continuing refusal to accept the umpire's decision might be said to heighten the insight Mr Herrington has gained into his predicament. Despite having been of the belief at the time of his offending that particular conduct did not breach the Act, and, as a matter of principle, continuing to be of that view, he is now prepared to accept the magistrates' contrary decisions to the point of obtaining the licences in question. It is perhaps an indication of Mr Herrington's honesty (but equally his obstinacy) that he maintains that the two magistrates erred. 45 The timing of the recent convictions is not a mitigating factor in this case. 46 As for any change in Mr Herrington's circumstances, the most obvious is that, following his experiences in the courts in the last two years, he now accepts the need for the licences he seeks. The Commissioner relied upon the Shire of East Pilbara negotiations as demonstrating the lack of any change, but, for reasons I have given, I have declined to place any weight on them. 47 Regarding character generally since the offences, it was said for Mr Herrington that he is 56 years old and married with two children. He founded (with an associate no longer with him) his present business which he has operated for six years. Mr Herrington's counsel reinforced that the purpose of the review is as one of a number of steps taken to ensure that his professional activities are in accordance with the Act. 48 One character reference (of Mr Peter Clifford) has been submitted, and Mr Clifford attended the hearing and answered some questions I put to him. Although Mr Clifford was only vaguely aware of the detail of the recent convictions, which tends to diminish the value of his evidence, he did paint a picture that Mr Herrington is now a much more mature individual than in the early years of their acquaintance (they have known each other for over 30 years, having met when working together at a television station), who is seeking to become a 'concrete member of society'. The totality of the evidence seems to support Mr Clifford's observations.
Conclusion 49 Taking all relevant considerations into account, I have concluded that the correct and preferable decision in this case is that Mr Herrington should be granted the licences sought, on the basis that he is a fit and proper person to hold them. The decision under review will be set aside, and the Commissioner required to issue the licences sought. 50 Mr Herrington will do well to appreciate that the privileges with which he is about to be entrusted are subject to various obligations and responsibilities, all of which are to be taken seriously. In the case of any doubt regarding their application in his work, he should consider taking appropriate advice.
Orders The Tribunal shall issue an order in the following terms: 1. The decision of the respondent's delegate to refuse to grant the application a security agent's, security installer's and security consultant's licence is set aside. 2. The respondent shall, as soon as practicable, and subject to payment of any applicable fee, issue to the applicant the licences applied for. |