Kapani v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 85

CITATION:	Kapani -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 85
DIVISION:	General Division
PARTIES:	APPLICANT Alamaite Kapani RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013020
HEARING DATES:	30/04/2001
SUBMISSIONS CLOSED:	04/30/2001
DATE OF DECISION:	05/28/2001
BEFORE:	Wilson K - Judicial Member
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:	Botros -v- Commissioner of Police, NSW Police Service (2000) NSWADT 6
REPRESENTATION:	APPLICANT J Taufaeteau, solicitor RESPONDENT J Tunks, solicitor
ORDERS:	1. The decision of the Commissioner to revoke the applicant's Class 1A Security Licence is set aside.

Introduction
1 On 30 April 2001 the Tribunal determined that the decision of the Commissioner of Police to revoke the applicantís Class 1A licence under the Security Industry Act 1997 should be revoked. At the time of making this decision the Tribunal indicated that written reasons for the decision would be supplied. The following constitutes the reasons for the decision.

2 On 1 July 1999 a Class 1A licence was issued to the applicant under the Security Industry Act 1997. On 2nd November 2000 a Notice of Revocation of the licence was served on the applicant and his licence ceased to have effect.

3 On 21st April 1997 at Liverpool Local Court the applicant was found guilty of an offence of assault occasioning actual bodily harm. No conviction was recorded and the applicant was released upon entering into a bond under Section 556A with a security of $1,000.00 to be of good behaviour for two years, to comply with the protection order and he was fined $250.00.

4 Notwithstanding the date and nature of this offence the present licence was issued to the applicant.

5 The licence was revoked on the basis that this offence constituted a prescribed offence which in the normal course of events would have had the effect of precluding the applicant from obtaining a security licence as it is a prescribed offence under the Regulations.

6 There is further background to this matter. As a result of the matter mentioned above the applicant's previous security licence was revoked and an appeal was lodged under the then existing regime for the matter to be reviewed by the local court. The matter was reviewed and the magistrate hearing the case allowed the applicant to retain his licence.

7 The matter dealt with in the local court related to a domestic violence issue involving the applicant and his wife.

8 Apart from this matter there were no other matters of relevant criminal activity involving the applicant who has been involved in the security industry for a number of years.

9 The reasoning of the Commissioner's delegate and the reasoning that persisted through the review of the revocation by the review officer was that the offence amounted to a prescribed matter under the legislative framework and the view was formed that the applicant was no longer a fit and proper person to hold his licence.

Matters Taken into Account by the Tribunal

10 At the hearing of this matter a number of references were provided on behalf of the applicant. In particular a comprehensive reference was provided by Patrick McMaster, a Company Director of A Security Services Pty Ltd. Mr McMaster attested to the applicant's competence in his role as a security guard and his reliability in that role over a period of 5 years. Mr McMaster understood the background to this matter and took into account the domestic violence matter referred to above in making his assessment. The reference indicates that the applicant has always behaved in a professional and appropriate manner in carrying out his duties for the company.

11 There were other references dating back in history attesting to the applicant's good character and work performance.

12 The applicant indicated before the Tribunal that the matters between he and his wife had been resolved and that there had been no repeat of the incident or any like incident in relation to his domestic affairs.

13 There were no matters of complaint in relation to the applicant in regards to his carrying out his performance of duties as a security guard.

14 Since the time of the confirmation of the revocation by the review office the applicant has not been engaged in any employment in relation to security guard activities but would be able to resume his work with a A Security Services Pty Ltd if he was licensed.

15 The applicant is of Tongan descent and has been married for a considerable number of years and has a large family. It is clear from the evidence provided from Mr McMaster's reference that both the applicant and his family have suffered a severe financial burden during the period in which he has been unable to work.

16 The applicant indicated his remorse for the incident which occurred in 1997.

Whether the Applicant is Fit and Proper

17 Mr Tunks for the Commissioner of Police referred the Tribunal to a previous decision in Botros-v-The Commissioner of Police, NSW Police Service (2000) NSWADT6. The Tribunal took into account the matters referred to in this decision. The decision makes it clear that the question of whether to revoke a licence or not involves a discretion. In Botros there was a different set of circumstances as is presented in this present case. The case makes it clear that the particular circumstances of each case are to be taken into account and in particular the issue always remains in relation to a revocation of a licence as to whether or not the applicant is fit and proper to carry out the purpose for which he or she is licensed.

18 In the present matter the Tribunal considered the serious nature of the matter involved in 1997. However the Tribunal also took into account the applicant's excellent work history and character references which were not placed in dispute before the Tribunal.

19 The Tribunal understands that delegates involved in assessing on an ongoing basis whether or not persons who hold such licenses remain fit and proper does involve them in an assessment of the nature of offences and to some degree the relevance of that in the context of whether or not the person would have received a licence in the first place. However once a licence is issued the Tribunal believes that the question of revocation revolves around the issues in the particular case and requires an assessment of not only the matter that has brought the revocation to notice but also the broad history and background of the applicant particularly as it relates to his or her capacity to carry out the duties for which they are licensed.

20 In this case the applicant has a long work history as a security guard. Several references were provided on his behalf which were not contested which show that apart form this particular mater in 1997 he has carried out his duties in a competent and professional manner. There have been no complaints and no repetition of the matter which brought his licence into question.

21 On balance the Tribunal believes that the applicant remains fit and proper to carry out his duties under the licence. Whilst the matter involving his domestic affairs was a serious matter there has been no repetition and all the evidence available to the Tribunal indicates that this was an isolated incident.

22 In exercising a discretion it is important for decision makers to take into account relevant matters not only to the detriment of the applicant but also matters which may be in his or her favour.

23 For the reasons set out above the Tribunal ordered on the 30 April 2001 that the decision to revoke the applicant's security licence Class 1A be set aside and that the licence be reinstated.