Howells v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 120

CITATION:	Howells -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 120
DIVISION:	General Division
PARTIES:	APPLICANT Martin Howells RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	993260
HEARING DATES:	17/03/2000
SUBMISSIONS CLOSED:	08/08/2000
DATE OF DECISION:	08/31/2000
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:	Sobey v Commercial Agents Board (1979) 22 SASR O’Sullivan v Farrer (1989) 168 CLR 210 Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657 Derisi v Vaughan [1983] 3 NSWLR
REPRESENTATION:	In person J Tunks, solicitor
ORDERS:	The decision of the Commissioner to revoke the applicant's licence is set aside

Introduction

1 On 25 November 1999 Mr Howells applied to the Tribunal for a review of a decision of the Commissioner of Police revoking his security industry licence. Mr Howells was issued with a security licence on 8 April 1999. The licences were for class 1A, 1B and 2B licences (issued on 8 April 1999) and Class 2B and 2C (issued on 24 May 1999). These licences were revoked on 10 November 1999.

2 The reason for the revocation was that it had come to the Commissioner’s attention that on 6 August 1991, nearly 9 years previously, Mr Howells had been convicted of a series of offences including break and enter and malicious damage to property by fire. He was ordered by the Newcastle District Court to enter into a good behaviour bond for 5 years, to pay compensation, to perform community service work and to be subject to the supervision of the Probation and Parole Service.

3 Initially the basis for the Commissioner’s decision revoking the licence was that these offences were prescribed offences which requires the Commissioner to refuse the application. (See s 16(1)(b) of the Security Industry Act 1997 (the Act) and Cl 11(d) of the Security Industry Regulation1998 (the Regulations))

4 Mr Howells requested an internal review of this decision. On 7 December 1999, the Commissioner affirmed his original decision but changed the basis of that decision conceding that the Commissioner must rely on discretionary, not mandatory, powers when revoking a licence. The decision on internal review was that Mr Howells is no longer a fit and proper person to hold a security licence or that it is not in the public interest for him to continue to hold a licence. The Commissioner provided an Amended Statement of Reasons.

The Legislation

5 The relevant provisions of the Act are section 26(1)(c) and Clause 18 of the Regulation. Those provisions state that:

26 Revocation of licence
(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
(b) if the licensee:
(i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, 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
(d) for any other reason prescribed by the regulations.

6 Clause 18 of the Regulation prescribes that:

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.

Issue

7 The issue to be decided in this case is whether the Commissioner made the correct and preferable decision in revoking Mr Howell’s licence. This decision must be made taking into account whether Mr Howells is a fit and proper person to hold a security industry licence and/or whether it is in the public interest for him to do so.

Conduct of the hearing

8 This matter was first heard on 17 March 2000. At the conclusion of the evidence, I decided that I needed more information about Mr Howell’s current psychological and psychiatric state before being able to make a decision which took into account all the relevant information. Consequently I asked Mr Howells to obtain an up to date medical report from Dr Chenoweth, who had been his treating psychiatrist. Because of financial and other reasons, there was some considerable delay in Mr Howells providing this report, but it was finally provided to the Tribunal and to the respondent on 8 August 2000. Mr Tunks, on behalf of the Commissioner, did not require Dr Chenoweth for cross examination and agreed that the matter should be decided on the basis of the evidence adduced at the hearing and Dr Chenoweth’s report of 3 August 2000.

Evidence and Findings

9 The circumstances of the offences committed between 1989 and 1990 are not in dispute. In summary, Mr Howells was convicted of malicious damage of property by fire on 5 occasions and one count of break and enter during the period 1 November 1989 to 13 October 1990. For example, in November 1989 he lit a fire in the cool room at the rear of a block of shops. He then telephoned the Fire Brigade and helped extinguish the fire. On 17 December 1989, he set fire to paper in an outbuilding at the rear of a block of shops. Again he contacted the Fire Brigade and attempted to extinguish the fire. On 21 January and 29 January 1990 he lit two more fires, one in a delicatessen and the other to a block of shops. The last offence occurred when Mr Howells was working as a security officer. He broke into a building a lit several small fires. When spoken to in relation to this offence, he stated that he was overcome by an “urge” to light fires.

10 The matters were dealt with by the District Court 6 August 1991. Mr Howells was 22 at the time of these convictions. He is now 32 and has had not been charged or convicted of any other offences since that time.

11 Mr Howells admitted at the hearing that he had lied to police when he was questioned about the offences. However Mr Howell’s denies the suggestion by the Commissioner that he first lit fires motivated by an attempt to procure an extra client for his security patrols in the form of Mr Grozdanovski.

12 A report from Dr Chenoweth dated 28 February 1991 states that, in relation to the offences committed by Mr Howells:

In my view he was certainly suffering from a mental condition for which treatment is available . . . he is not mentally ill within the meaning of the Mental Health Act 1958. He did suffer from a depression, which at times had reached the magnitude of a Depressive Illness and as such in my view, his judgement was compromised but not entirely clouded. The offence occurred in the context of extreme intra-psychic distress and unlike a Pyromaniac, his anxiety increased immeasurably as a consequence. He has responded quite well to tricyclic Anti-depressants and psychotherapy and it is my intention to maintain contact with him for some considerable time.

13 Dr Chenoweth’s report dated 3 August 2000 states that Mr Howells continued to see him for two years after the incident and that:

. . . during that time he has managed to get his life on track, finely (sic) ceased the medication, extracted himself from his family of origin, and I understand since then that he has been an exemplary citizen.

I have no indication on a thorough examination conducted on 25/7/00 that there is any likelihood of further depression compromising his capacity to work honestly and conscientiously for any future employer.

14 Mr Howells provided references from several people including Tony Lindsay, Australian Citizens Radio Emergency Monitors, Terry Jones, sales manager and security consultant and Dean Gardner. All three were fully aware of the nature of Mr Howell’s convictions and provided strong evidence in his favour.

Applicant’s submissions

15 Mr Howells gave a comprehensive written submissions in support of his case. He argued that the time since the offences should be taken into account and quoted the following passage from Sobey v Commercial Agents Board (1979) 22 SASR at 75:

When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then be properly given to his subsequent good behaviour.

16 He said that there is ample evidence that he has been an exemplary citizen since being convicted and that he is a fit and proper person to hold a licence.

Respondent’s submissions

17 The Commissioner submitted that Mr Howells is not a fit and proper person to hold a security industry licence because despite the fact that the offences were committed some time ago, they are of a very serious nature. The Commissioner described the offences as a “calculated course of serious criminal conduct”. In addition Mr Howells behaved dishonestly when questioned about the fires, up until the time that he gave a comprehensive statement to the police.

18 The Commissioner also submitted that it was not in the public interest for Mr Howells to hold a security industry licence. Several cases interpreting the “public interest” were quoted. These cases demonstrate firstly that a discretion to make a decision “in the public interest” is not confined except by the scope and purpose of the legislation itself. (O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson Gaudron JJ) Secondly, applying a public interest test is a question of fact and degree. (Re Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5). Thirdly the purpose of the reference to “public interest” is “to ensure the private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner’s consideration.” (Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657 at 681)

Reasoning and Decision

19 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 licence 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 licence for the balance of its current year, if a sufficiently strong case had been made to persuade the magistrate to do so.

20 The grounds relied on by the Commissioner are that Mr Howells is not a fit and proper person to hold a licence and that it is not in the public interest for him to do so.

21 There is no doubt that Mr Howells is guilty of several serious offences over a 12 month period. He was convicted of these offences and also admits that he was initially dishonest when he was questioned by the police. I do not have sufficient evidence to make any findings about whether or not the offences were motivated to any extent by an attempt to procure an extra client for his security patrols. At least one of the offences was committed at a time when he was working as a security officer.

22 The fact that the Commissioner gave Mr Howells a licence on previous occasions does not make any difference to the Tribunal’s decision today. Under s 63(1) of the Administrative Decisions Tribunal Act 1997, the Tribunal must decide “what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law.” In other words, the Tribunal must make a fresh decision and it is irrelevant to that decision whether or not the Commissioner granted Mr Howell’s a licence in the past.

23 While Mr Howells may well have been unfit to hold a licence at the time he was convicted of the offences, several factors convince me that he is currently a fit and proper person to hold a licence and that it is not against the public interest for him to do so. These factors are:

· he has held a licence apparently without incident for at least 12 months;
· he has not be charged with or convicted of any other offences for over 10 years;
· he has been in stable employment for a number of years;
· he has several convincing character references from people who have known him for a long time and are aware of his convictions; and
· there is up-to-date evidence that he does not have any psychological or psychiatric condition.

For these reasons, the decision of the Commissioner to revoke Mr Howells Class 1A, 1B and 2B security licence is set aside.