Ibrahim v Commissioner of Police, NSW Police Force

[2009] NSWADT 245

CITATION:	Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245
DIVISION:	General Division
PARTIES:	APPLICANT Kazem Ibrahim RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	093134
HEARING DATES:	28 July 2009
SUBMISSIONS CLOSED:	21 August 2009
DATE OF DECISION:	23 September 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Security Industry Act - security industry licence - revocation of licence
LEGISLATION CITED:	Security Industry Act 1997 Crimes (Sentencing Procedure) Act 1999 Security Industry Regulation 2007
CASES CITED:	Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Krzeminski [2002] NSWADTAP 3 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Director of Public Prosecutions v Smith (1991) 1 VR 63 Haining v Commissioner of Police [1999] NSWADT 6 Krzeminski v Commissioner of Police (No.2) [2003] NSWADT 8 O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130
REPRESENTATION:	APPLICANT T Jones, solicitor RESPONDENT K Sanders, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

Background Facts

1 The Applicant has held a Class 1AC security licence under the Security Industry Act 1997 (“the Act”) since July 2007. He has been employed as a security guard from July 2007 up until his licence was revoked in July 2008. As a result of an incident on 15 July 2008 (“the 15 July incident”) the Applicant was charged with assault occasioning actual bodily harm, affray, reckless wounding and common assault. His security licence was revoked shortly afterwards. The decision to revoke the Applicant’s security licence was affirmed on internal review.

2 The Applicant subsequently pleaded guilty to common assault. He was discharged with no conviction recorded under section 10 of the Crimes (Sentencing Procedure) Act 1999 and he was required to enter into a good behaviour bond for 12 months.

3 The facts of the assault are not generally in dispute. It is common ground that on the night of 15 July 2008 the Applicant was on duty as a security guard at the Plantation Hotel Coffs Harbour and that he became involved in an altercation with a patron of the hotel. The injuries that the victim sustained during the assault were serious. The facts sheet provided to the Local Court describes the incident as follows:

'The victim has left the Plantation Hotel premises and proceeded to walk south along the footpath protesting his exclusion from the Hotel. The accused, Kazem Ibrahim took offence to the victim’s comments. The accused was employed as a Security Officer for the Plantation Hotel. The accused has followed the victim along the footpath for some metres and then onto the roadway whilst the victim was still making derogatory comments to him.

The victim has turned and faced the accused on the roadway and words were exchanged between them. The victim raised his hands to shove the accused. The accused has forcefully pushed the victim to the ground with his hands and as a result he has fallen onto the roadway and gutter. This has caused bruising, scratches to the right side of his face and a cut lip.'

4 The Applicant's security licence expired in September 2008. His application for a new class 1 AC security licence was refused and the decision to refuse the application was affirmed on internal review. The Respondent (“the Commissioner”) contends that the Applicant's application must be refused, as he has been found guilty of a serious assault offence.

5 The Applicant has applied to the Tribunal for review of the decision to refuse his licence application. The matter came before me for hearing on 28 July 2009. For reasons of expediency evidence and argument was presented in relation to the broader question of whether the correct and preferable decision is to grant the licence. However it is agreed that if the Tribunal finds that the Applicant has been found guilty of a serious assault offence then refusal of the licence is mandatory.

Applicable legislation

6 Section 16 of the Act contains restrictions on the grant of a security licence. Section 16(1)(b) provides:

16 Restrictions on granting licence—criminal and other related history

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

…

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or

7 Prescribed offences for the purpose of section 16 of the Act are set out in clause 18 of the Security Industry Regulation 2007 (“the Regulation”) which relevantly provides:

18 Offences and civil penalties that disqualify applicants

(1) Prescribed offences: section 16 (1) (a) and (b)

For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

...

(c) Offences involving assault

An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:

(i) an offence in respect of which the penalty imposed is imprisonment, or a fine of $200 or more, or both, or

(ii) in any cases where the Applicant concerned has been found guilty but not been convicted—an offence that, in the opinion of the Commissioner, is a serious assault offence.

8 Neither the Act nor the Regulation defines “serious assault offence”.

The Issue

9 The issue to be determined is whether the correct and preferable decision is to refuse to grant the Applicant’s application for a security licence. The preliminary issue to be determined is whether the Applicant has been found guilty of a serious assault offence. If that is not the case, the issue to be determined is whether it is nevertheless not in the public interest that the application be granted.

The Commissioner’s case

10 The Commissioner contends that the assault was a serious assault offence for the purpose of clause 18(1)(c) of the Regulation. Ms Sanders, solicitor for the Commissioner, submits that the approach to be adopted by the Tribunal in determining this issue is that discussed in Krzeminski v Commissioner of Police (No.2) [2003] NSWADT 8 (“Krzeminski (No.2)”). In that matter the Tribunal held that mitigating factors, which are ordinarily taken into account at sentencing, are of no relevance to whether an assault constitutes a 'serious assault offence' for the purposes of clause 18(1)(c). Only the objective conduct constituting the offence is relevant. Judicial Member Lees stated at paragraph [34] – [35]:

34 This Tribunal’s task is to determine whether the offences for which the Applicant was found guilty of committing constitute "serious assault offences" in accordance with the reasoning in the Appeal Panel’s decision. Essentially that reasoning requires that the Tribunal only have regard to the actual circumstances of the relevant conduct insofar as was required to establish the assault offence, that is, for the purposes of the issue before it, only the objective conduct constituting the offence is relevant, not the whole circumstances of the case or the personal and mitigating factors ordinarily taken into account by a Judge in determining an appropriate penalty.

35 Accordingly, as the Applicant’s submissions almost entirely concerned personal and mitigating factors, these factors could not be used in the manner contemplated by the Applicant in any sort of balancing or discretionary exercise, in order to determine whether his offensive acts, for which he pleaded and was found guilty, objectively constituted a ‘serious assault offence’.

11 The Commissioner submits that the fact that no conviction was recorded has no bearing on whether the assault was a 'serious assault offence' for the purposes of clause 18(1)(c). Whether an assault is sufficiently serious to warrant recording a conviction is a separate question from whether an assault is a 'serious assault offence' for the purposes of clause 18(1)(c).

12 Ms Sanders contends that the statutory scheme specifically distinguishes between assaults for which no conviction is recorded which are “serious assault offences”, and those which are not. It specifically contemplates that certain offences that may not be serious enough to warrant a conviction being recorded may still be serious enough to warrant disqualification from holding a security licence. She referred to the view expressed in the Appeal Panel decision in Commissioner of Police v Krzeminski [2002] NSWADTAP 3 (“the Appeal Panel Krzeminski decision”):

29 When dealing with a matter under s 556A the court is to have regard to any matter which it thinks it proper to consider including the character, health and mental condition of the person charged and the trivial nature of the offence. In general, it can be assumed that where no conviction is recorded the offence itself and/or the circumstances surrounding the offence are not considered sufficiently serious to warrant a conviction. If the Tribunal takes into account the same or similar factors when assessing whether the offence is a “serious assault offence” there would be very few, if any, cases which it would categorise as “serious”.
30 The “trivial nature of the offence” is one of the factors listed in the former s 556A. If a person is found guilty but no conviction is recorded, the reason, or one of the reasons, for not recording a conviction may be the trivial nature of the offence. If that is the case then it is unlikely that the Tribunal would find that the offence is a “serious assault offence.” However if factors other than the trivial nature of the offence form the basis for the decision not to record a conviction, then the offence itself may still be serious.

13 Section 10 of the Crimes (Sentencing Procedure) Act 1999 is the equivalent of former section 556A of the Crimes Act 1900, and is in substantially the same terms.

14 The Commissioner submits that assault offences for which no conviction is recorded will generally be less serious than assault offences for which a conviction is recorded. For the purpose of determining whether an assault offence is 'serious' within the meaning of clause 18(1)(c), the decision-maker is to have regard only to the types of assaults for which no conviction is recorded.

15 The Commissioner also notes in the explanation provided by the Appeal Panel in Krzeminski at paragraph [31]:

31 Another reason supporting a narrow interpretation of “serious assault offence” is that the legislature has already taken into account the fact that offences where no conviction is recorded are less serious by reducing the disqualification period from 10 years to 5 years. ...

16 The evidence on which the Commissioner relies includes photographs from the CCTV footage of the 15 July incident and photographs depicting the injuries to the victim. Senior Constable Jon Buzza, the police officer in charge of the proceedings against the Applicant in relation to the assault incident, attended the hearing and was cross-examined. The Commissioner relies on the brief of evidence that Senior Constable Jon Buzza prepared for the criminal proceedings against the Applicant, including statements by a number of witnesses to the 15 July incident.

17 The Commissioner relies on comments made by the presiding Magistrate who, considered that while the nature of the assault and the injuries suffered by the victim put the assault at the lower end of the scale, nevertheless regarded the Applicant’s conduct as serious. In her sentencing remarks, she expressed concern about the fact that the Applicant committed the assault while performing his duties as a security officer. In particular, Ms Sanders referred to the following comments:

'You were a trained security officer. What's required of you is to deal with these situations with care, and certainly not with violence or aggression...'

'According to the facts, [the victim] was... mouthing off at you, making comments which you took offence at. So then, you really crossed the line with being a security officer, when you should have kept your cool. And you then got into an incident with him, where you pushed him. It says you followed him along a footpath. You could have let him go, he was going. He went for some metres, still making the derogatory comments. He then turned to face you. According to the facts, he raised his hand to shove you, and you forcefully pushed him to the ground and as a result he fell onto the roadway, and gutter, and that caused bruising and scratches to the right side of his face, and a cut lip...'

'What is of concern though as I say, you were someone who was trained to deal with people in that situation, you were a security officer at a hotel, there's a public interest in courts obviously not condoning in any way you reacting in a like manner to intoxicated and aggressive patrons. Unfortunately there are many intoxicated and aggressive patrons, but it doesn't justify you becoming aggressive in those circumstances.'

18 In the Commissioner’s submission the Applicant should not have followed the victim from the hotel. Ms Sanders notes that the Magistrate accepted that the Applicant should not have followed the victim and that the Magistrate did not accept the submission by the Applicant's solicitor that the Applicant escorted the victim down the street in order to get him a taxi and ensure he left the area.

19 Ms Sanders stated that in determining not to record a conviction, the Magistrate specifically relied on the Applicant's character references and the fact that he did not have a criminal record. When communicating her decision as to what penalty to impose she did not refer to the seriousness of the assault. The Magistrate also observed that, despite her decision not to record a conviction, the issue of whether the Applicant ought hold a security licence is a separate question, to be determined by the licensing authorities.

20 The Commissioner submits that the Magistrate's criticism of the Applicant's conduct, in particular the fact that he forcefully pushed the victim to the ground, that he 'crossed the line' when he should have kept his cool, and that he was a security officer trained to deal with such situations without becoming violent or aggressive, go to the seriousness of the assault for the purposes of clause 18(1)(c). The Commissioner contends that the assault was a 'serious assault offence' and submits that refusal of the licence application is therefore mandatory.

21 The Commissioner further submits that granting the licence would be contrary to the public interest. Ms Sanders referred to a number of authorities in support of this submission.

22 In the Commissioner’s submission, the public interest requires paramount consideration to be given to public safety. A security officer may need to work under pressure and in unexpected and hostile circumstances. A person who works as a bouncer, particularly at licensed premises late at night, is likely to encounter behaviour that is aggressive, provocative, or otherwise challenging and must be able to respond to such situations without resorting to violence. The public expects that a person who holds a security licence is able to do so. The Commissioner contends that the Tribunal could not be satisfied that the Applicant is able to meet that expectation and therefore granting the licence would be contrary to the public interest.

The Applicant’s case

23 The Applicant relies on his own evidence and that of Mr Kuldeep Chouhan who was cross-examined at the hearing.

24 Mr Jones, the solicitor for the Applicant, submits that in determining whether an offence is a "serious assault offence" pursuant to clause 18 it is necessary to consider the range of assault offences to which section 10 of the Crimes (Sentencing Procedure) Act applies and to examine the circumstances of the offence within that range. He contends that all assault offences in the Crimes Act may be dealt with under section 10. Assault offences in the Crimes Act range in seriousness from "wounding or grievous bodily harm with intent" with a penalty of 25 years, through to the least serious common assault with a penalty of 2 years. The Applicant was convicted of common assault. This is the least serious within the range of possible assault charges available. Mr Jones submits that the Applicant had the choice to elect to have the offence dealt with on indictment in the District Court but chose to have it heard in the Local Court.

25 Mr Jones referred to the factors that the Magistrate needed to consider under section 10, as set out in subsection 10(3):

"(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider. "

26 Mr Jones referred to comments made by the presiding Magistrate who said:

"...given the nature of the push and the nature of the injuries it certainly does fall at the lower end of the scale. What is of concern though as I say is that you were someone who was trained to deal with people in that situation, you were a security officer at a hotel."

27 He submits that the agreed facts presented to the Local Court show that the victim was acting in a manner that was threatening, waving his arms and he was abusing the Applicant. The Applicant pushed him to the ground. The Applicant in evidence to the Tribunal said that when the victim was swinging his arms he believed the victim was trying to punch him. In the Local Court the Applicant's representative, without opposition from the prosecution, described the offence as an assault, which consisted of excessive self-defence.

28 It is not in dispute that the Applicant did not follow the victim beyond the boundary of the hotel. In reference to the Commissioner’s assertion that the Applicant improperly followed the victim outside the hotel Mr Jones referred to Mr Chouhan’s evidence that he asked the Applicant to stay with the victim. He also said that the victim was clearly a difficult customer and that it was consistent with the hotel’s policy to stay with a difficult client until they had left the vicinity. Mr Jones submits that the victim needed to be supervised until he was out of the vicinity and that it was only when the victim made a sudden movement onto the road that the Applicant started to engage with him again. He also referred to the hotel’s security management plan and submits that the Applicant was following standard procedure, doing his job as his manager had asked him.

29 He argued that the Magistrate took into account the circumstances of the offence, including the injuries to the victim, the nature of the Applicant's employment together with his clean record and character. After taking into account these circumstances she imposed a bond with no conviction recorded. Mr Jones said that the circumstances of the assault were a major consideration of the Magistrate in reaching her conclusion to record no conviction. He contends that it was not a serious assault offence.

30 In support of this submission he compared the circumstances of this matter with those under consideration in Krzeminski (No.2). In that matter the assault was objectively very serious. The Applicant had a knife and was threatening to use it to kill people. No conviction was recorded because factors other than the nature of the assault were taken into account. He submits that Krzeminski is the type of case where clause 18(1)(c)(ii) should be applied. A reasonable person in the community is likely to be concerned if a person with such a history and an illness were allowed in a position of responsibility as a security guard.

31 Mr Jones submits that in the Applicant's case the offence was the least serious of the range of assault offences available to the police and the Magistrate found that it was at the lower end of the offence scale. It is clear the Magistrate utilised section 10 placing considerable weight on the trivial nature of the offence. He says that the Applicant's case clearly fits in the Appeal Panel Krzeminski decision category where the trivial nature of the offence was one of the reasons for not recording a conviction and consequently should not be considered a "serious assault offence". The offence is not a serious assault offence and the Applicant should be granted his licence.

32 In reference to the Commissioner’s assertion that the Applicant's licence should be refused on public interest grounds pursuant to section 15 of the Act, Mr Jones submits that to succeed on this argument the Commissioner must establish factors in addition to the assault offence dealt with in the Local Court. He cannot assert that it is in the public interest to refuse the licence purely because of an assault that is not a serious assault. Mr Jones submits that there must be additional factors to enliven the public interest provisions, however, no additional circumstances are presented. He says that any allegation that the circumstances of the assault are different to those determined by the Local Court i.e. that the Applicant punched the victim as part of the assault, should be rejected.

33 Mr Jones submits that the legislation contains provisions to deal with assault offences. If the fact of the assault offence is the critical issue to a decision to refuse the licence then it should be dealt with under those provisions and not under the public interest provision. He further says that the Commissioner cannot now assert that that the Applicant punched the victim because that was not argued before the Local Court. Additionally, it was said that there is no credible basis to claim that the Applicant punched the victim. The Applicant says he did not punch the victim. He says that he pushed the victim but has denied punching him. No witness to the incident alleges a punch. The victim does not say he was punched. The video does not show a punch. The medical evidence makes no reference to a punch.

34 Mr Jones submits that therefore, the Commissioner's assertion that the licence should be refused on public interest grounds should be dismissed.

Consideration

35 The Applicant was found guilty of an assault offence with no conviction recorded. The prosecution withdrew that other charges. The preliminary issue to be determined is whether the Applicant has been found guilty of a serious assault offence.

36 Neither the Act, nor the Regulations contain a definition of what is to be regarded as a "serious assault". Whether the Applicant's offence should be considered a "serious assault offence" is an issue for determination by the Tribunal. It involves both questions of fact and questions of law. The word "serious" is an ordinary word and it’s meaning is a question of fact. However, the scope of the matters that can be taken into account in determining whether a particular offence is a "serious assault offence" involves the effect or construction of this phrase. That is a question of law: the Appeal Panel Krzeminski decision at paragraph [3].

37 In assessing whether the offence is "serious" the Tribunal must confine itself to the material that was before the decision maker when hearing the case. It is not the Tribunal's role to re-hear the criminal charges or to take any fresh evidence into account: the Appeal Panel Krzeminski decision at paragraph [32]. The Tribunal can only consider the circumstances of the actual offence and cannot consider any mitigating circumstances or circumstances relating to the penalty imposed.

38 I have been provided with the CCTV footage in relation to the 15 July incident and I have evidence in regard to the circumstances of the incident. I have also been provided with the audiotape of the Local Court hearing and I have listened to the comments made by the presiding Magistrate to which each of the parties has referred. I accept that each party has correctly recorded the Magistrate’s comments. I agree that she considered that the assault was at the lower end of the scale. I also agree that she expressed concern about the Applicant’s aggressive conduct in circumstances where his training should have led him to behave differently.

39 Notwithstanding the concerns expressed by the presiding Magistrate, in my view it is apparent from the audiotape that she did not consider the Applicant to be guilty of a serious assault offence. However, I also note that the Applicant entered a guilty plea in relation to the assault charge and therefore the presiding Magistrate did not need to consider the evidence that has been presented to the Tribunal.

40 Nevertheless, I am satisfied from the oral evidence, written statements and the CCTV footage that the facts sheet provided to the Local Court describes the 15 July incident correctly. It is apparent that the Applicant followed the victim along the footpath away from the hotel and then onto the roadway. I accept the evidence that at that time, the victim was making derogatory and threatening comments towards the Applicant. I also accept that the Applicant had been directed to ensure that the victim left the premises. I do not accept that this was an assault that consisted of excessive self-defence.

41 In my view, the Applicant’s duties required that he escort the victim off the premises. They did not require that he follow the victim onto the roadway or to engage in a physical altercation with the victim. I agree with the presiding Magistrate’s view that as a security guard the Applicant has been trained to deal with intoxicated and aggressive patrons and that he acted in an aggressive manner that was not justified.

42 The description of the victim’s injuries as ‘bruising, scratches to the right side of his face and a cut lip’ does not adequately describe the injuries shown in the photographs. The photographs in evidence show that the injuries to the victim were severe.

43 In my view, the circumstances of the assault are serious. The Applicant acted in an unjustified aggressive manner causing severe injuries to the victim and he did this whilst on duty as a security guard. I am satisfied that notwithstanding the presiding Magistrate’s view that the assault was at the lower end of the scale it was nevertheless a serious assault offence.

44 It is also my view that it is not in the public interest that the application is granted.

45 The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

“25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.”

46 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members': Director of Public Prosecutions v Smith (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 (at page 681). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith.

47 The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6.

48 The interests of the whole community must be considered. It is clear that the Applicant considers that his conduct on the night of 15 July 2008 was appropriate in the circumstances. This suggests that he does not have an adequate understanding of the standards that he must meet as a security guard and in my view it would be contrary to the public interest to permit the Applicant hold a licence.

49 This view does not mean that the Applicant should be prevented from re-entering the security industry at some time in the future if he does not re-offend. However, at this time it is not in the public interest for him to do so. It follows that the decision under review should be affirmed.

Order

The decision under review is affirmed.