Krezeminski v Commissioner of Police, NSW Police Service

[2001] NSWADT 103

Set aside by Appeal: Set aside by appeal on 17/01/2002

CITATION:	Krezeminski -v- Commissioner of Police, NSW Police Service [2001] NSWADT 103
DIVISION:	General Division
PARTIES:	APPLICANT Dean Krezeminski RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003320
HEARING DATES:	02/05/2001
SUBMISSIONS CLOSED:	05/02/2001
DATE OF DECISION:	06/22/2001
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Firearms (General) Regulation 1997 Firearms Act 1996 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463
REPRESENTATION:	APPLICANT In person RESPONDENT CJ Capper, advocate
ORDERS:	1. In the opinion of the Tribunal, the finding that the applicant was guilty of two assault offences on 16 June 1997 with no conviction recorded is not a "serious assault offence" within the meaning of regulation 11(c)(ii) of the Security Industry Regulation 1998.; 2. The applicant’s two assault offences on 16 June 1997 were not offences relating to firearms or weapons within the meaning of regulation 11(a) of the Regulations; 3. The matter be listed by the Registrar for further directions.

1 This is an application for a review of a decision of the respondent to refuse to grant the applicant a security industry licence following his application under Security Industry Act 1997 (“the Act”). At the hearing of this matter on 2 May 2001 the parties agreed that it was appropriate for two preliminary issues to be determined first by the Tribunal. If the issues were determined in the respondent's favour, that would have been an end to the matter and there would have been no need for any further hearing as to whether the applicant was a fit and proper person to be granted a security industry licence.

2 The issues to be determined in this decision are:

(a) Whether, in the opinion of the Tribunal, the finding that the applicant was guilty of a criminal offence in 1997 with no conviction recorded is appropriately characterised as a "serious assault offence" within the meaning of regulation 11(c)(ii) of the Security Industry Regulation 1998 (“the Regulations”). (There are apparently no Tribunal decisions going to the question of the meaning of the said expression in the regulation).

(b) Whether there was an offence “relating to” firearms or weapons here within the meaning of regulation 11(a) of the Regulations.

The Application

3 On about 24 February 2000, the applicant made an application for a Class 1, subclass A, B & C security industry licence decision to section 11 of the Act. Such a licence, if granted, would authorise the applicant to patrol, guard, watch or protect persons or property, to act as a bodyguard, and to act as a crowd controller or bouncer.

4 The applicant's initial application (exhibit A) revealed that the applicant was a police officer in New South Wales from 1988 to 1996 and had not been dismissed from service. It included references from a number of current and former employers and a priest. The applicant was studying full-time law at university. They are all good references. The application also discloses the offence and the fact that no conviction was recorded. Significantly, included in his application was a form of authority for pretraining which had been completed by an officer of the respondent recording the applicant as a suitable candidate to undertake security industry training. It was signed and dated 9 December 1999 by the said officer. On this form, the applicant had also disclosed details relating to his conviction. The applicant then undertook tactical training and a certificate relating to his competency in that the training was attached to the application.

5 On the whole, on the face of the application, the only negative feature and the only probable impediment to the applicant being granted a Class 1 licence was his common assault offence.

6 On about 27 March 2000 a delegate of the respondent refused the application by reason of the combination of section 16(1)(b) of the Act and regulation 11(c)(ii) of the Regulations, that, in the opinion of the respondent, the common assault offence was a "serious assault offence" within the meaning of the regulation. Further, it was decided that the applicant was not a fit and proper person to hold the class of licence sought pursuant to section 15 of the Act. No reasons were given for the making of either of these findings. On about 19 June 2000 the applicant made an application for a review of the decision. He raised a significant number of matters in his application for internal review including the common assault offence issue which had been determined pursuant to the section 556A Crimes Act 1900 as it was then. In his internal review application he said, inter alia:

“Section 556A of the Crimes Act is utilised only when exceptional mitigating or extraordinary circumstances arise which necessitate the Court's and the public's views that it is not in the best interests to convict a person, which if convicted it will invoke all the instruments and ramifications of punishment within the judicial systems. It is inordinate to continually punish me in respect of this section 556A matter and the fact that I tried to report improper behaviour by the Police. To the point this section is simply utilised so that person's life is not shattered as a result of a mistake, they are given a second chance, and I not allowed a chance as I was honest and tried to do the right thing within the Police. …

As a result of this inquiry I received from your department a criminal record suitability clearance allowing me to participate in a Security Course. I was also informed that upon successful completion of the course I would be granted a Security Licence, this is taking into account that my criminal antecedents did not alter between the time the initial check was conducted to the time a licence was applied for.”

7 The applicant also made reference to his belief that the adverse decision may be influenced by harassment of the applicant by members of the Police following the applicant's reporting of alleged Police corruption during his time as a police officer in New South Wales. He also referred to the civil litigation proceedings that conducted by him against the Police Service in recent years which have now been settled out of court.

8 On 4 July 2000, an officer of the respondent made an internal review decision again refusing the applicant's application on the same grounds as were in the original decision. Again, no reasons whatsoever were provided. On this occasion, the respondent ought to have provided reasons in accordance with the internal review procedure in section 53(7) of the Administrative Decisions Tribunal Act 1997 ("ADT Act"). Those reasons should have set out, inter alia, the reasoning process that led the administrator to the conclusions made.

9 On 9 October 2000, the applicant filed his application for review of a reviewable decision. On about 13 October 2000 a further delegate of the respondent made a further decision in the matter by delivering a detailed statement of reasons presumably pursuant to section 58(1)(a) of the ADT Act (notwithstanding that the document itself states that it is made under section 53 of the ADT Act).

10 To the very limited extent that the respondent's reasoning process is disclosed in the second statement of reasons, it appears that the sole reason for refusal of the applicant's licence related to the seriousness of the assault offence.

The Assault Offence Here

11 In the respondent's statement of reasons, the factual issues relating to the assault offence in the present case are as follows:

“On 16 June 1997 and Penrith District Court in the applicant was found guilty with no conviction recorded of two counts of "Assault". The applicant was given a 12 month good behaviour bond and ordered to undertake psychiatric treatment or alcohol counselling.

At the time of these offences [on 4 September 1996] the applicant was a voluntary resident of Our Lady of Perpetual Help Detoxification Centre in Quakers Hill. The manager of the centre requested the applicant to leave the centre, as he was not adhering to their rules. The applicant took exception to the request and inform the manager that he would kill him. The applicant went to the kitchen and obtain a kitchen knife. The centre's psychologist attempted to stop the applicant, and was threatened with the knife. The applicant then repeated his intention to kill the manager. The psychologist managed to calm the applicant down prior to locking himself and the manager in a room where the police were called.

When interviewed the applicant claimed that it was his intention to kill only himself whilst the centre's manager watched. Later that evening the applicant was voluntarily admitted to Cumberland Psychiatric Hospital.”

12 At the hearing of this matter before the Tribunal no oral evidence was called by either party. The respondent tendered the documents mentioned so far in this decision (exhibit A) and selected extracts of the relevant District Court file including some witness statements (exhibit B). The terms of the actual indictment were not presented in evidence before me. The respondent also relied on paragraph 1 to 43 of written submissions dated 21 March 2001. The applicant tendered additional material that, the parties accepted, was before the District Court judge at the time when the assault offence was determined. The applicant tendered the following documents:

(a) transcript of the determination of the District Court at Penrith on 16 June 1997 (exhibit 1);

(b) 15 page statement by the applicant to the District Court judge dated 14 June 1997 (exhibit 2);

(c) hospital records (exhibit 3);

(d) medical report dated 24 January 1997 of Dr Alexander Murray, consultant psychiatrist (exhibit 4);

(e) medical report of Dr Jean Lennane dated 10 April 1997 (exhibit 5);

(f) further medical reports of Dr Alexander Murray dated 4 February 1997 and 12 February 1997 (exhibit 6);

(g) Fact Sheet General (On-Line Charging) containing the informant’s signature (exhibit 7);

(h) Reference dated 26 March 1997 from Father David Wilkins (exhibit 8).

13 I have read all of this evidence. I regard the most significant evidence to be that of the decision of his Honour Judge Nield of 16 June 1997 and the medical report of Dr Jean Lennane dated 10 April 1997. Judge Nield stated, inter alia:

“I think that it is a tragedy to find a young man like the prisoner, who has devoted years of his life in the service of the State by being a serving member of the Police Service, should suffer - apparently from other members of the Service - the threats to the prisoner received merely because he did what he believed was right. He reported the other serving police officers to the Wood Royal Commission for their improper conduct.

The threats that he had received and his addiction to intoxicating liquor resulted in his need for treatment. Unfortunately it is now recognised that addiction to intoxicating liquor by members of the Police Service may result from the pressures of being a police officer. All this has resulted in his having resigned from the Service.

The incident involving [the manager and psychologist] was an incident which occurred without planning. It was an incident which arose from the prisoner's paranoia, and the fact that he is paranoid is referred to in the medical reports. I do not have to determine whether his paranoia concerning [the manager's] actions was justified. It should not have occurred, that is his threats to[the manager] in the presence of [the psychologist], and then his arming himself with a knife and threatening [the manager], but it did occur. But it must be seen to have occurred in the light of his background; a background which, as I have said already, I think may well cause the strongest person to succumb.

He has pleaded guilty to the offence with which he was charged and is entitled to the benefit of a discount in penalty which flows from such pleas. Moreover, his pleas shows that he is contrite for his conduct towards those who were in positions of seeking to help him with his addiction, with his problems, and I do not doubt that he is contrite for what he did towards them.

His state of health, both his physical condition and his mental state, is confirmed by the various medical reports and I need not refer any further to either of those conditions; except to say that he needs continuing treatment in order to completely overcome his alcohol addiction - and I think that further treatment he will - and to come to terms with what has happened to him in the past - and I think with encouragement he will come to terms with what has happened in the past and he will be able to continue to live his life without criminal conduct.

Although I recognise, as does his solicitor, that threatening the life of someone and arming oneself when threatening the life of someone is very serious conduct, nonetheless, in the circumstances in which the conduct occurred, it seems to me, bearing in mind his hitherto good character and reputation, he had not committed any criminal offence before this incident of 4 September 1996, permits me to invoke section 556A of the Crimes Act…”

14 During the course of the hearing before the tribunal, the respondent's representative conceded, properly in my view, that the applicant might well have had an arguable defence to the assault charge by reason of some temporary mental deficiency having regard to the medical evidence tendered before the District Court.

What is a Serious Assault Offence?

15 Section 16(1)(b) of the Act provides:

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, whether or not the offence is an offence under New South Wales law, or

16 Regulation 11 of the Regulations relevantly provides:

Offences that disqualify applicants: section 16

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 was imprisonment, or a fine of $200 or more, or both, or

(ii) in such 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.

17 As to the proper construction of the expression "serious assault offence" the respondent's representative submitted in his written submissions and paragraphs 14 and 15:

“Neither the Act, nor the regulations contain a definition of what is to be regarded as a "serious assault". It is the respondent’s submission that this is a question of fact and degree for determination by the tribunal.

It is the respondent’s submission that the seriousness of an offence must consider the actions of the applicant, the circumstances in which they were carried out and the effect or likely effect of those actions on the victim.”

18 In oral submissions, the respondent went on to submit that the tribunal can only consider the circumstances of the actual offence and cannot consider any mitigating circumstances or circumstances relating to the penalty imposed. It was said the tribunal should regard only the actual circumstances of the case insofar as it was required to establish the charge was proved and the motives or intention of the applicant at the time of committing the offence are irrelevant. I do not agree.

19 In forming the opinion referred to in regulation 11(c)(ii), it is appropriate to have regard to the circumstances relating to particular offence concerned as it was found to have occurred and, in addition, to the whole of the facts relating to the particular offence that are or might relate to the seriousness of the offence as it was committed on that particular occasion. In other words, in my view, the whole of the circumstances relating to the offence are relevant. That will include the effect on the victim as well as the applicant's state of mind and his motives at the time of the commission of the offence. It will also include a consideration of some matters that would ordinarily go to penalty or in mitigation of penalty.

20 I am fortified in this view by the decision of the Federal Court on the not unrelated issue of what is a “particularly serious crime” for refugee law purposes in Australia. In Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463 at 486E and 471E (Finkelstein J), the Court held it was appropriate to consider all of the circumstances of the case when forming an opinion on this issue. The Court said (at 471E):

“It seems to me that once the Tribunal had embarked upon an enquiry as to the seriousness of the offences, an inquiry which the Tribunal was bound to undertake in order to determine whether the deportation order was properly made, it was obliged to consider all of the circumstances that led to the commission of those offences including those circumstances that would diminish the appellant's moral culpability for having committed them. Its failure to do so is, at the least, a failure to take into account considerations which the Tribunal was required to take into account before it arrived at its decision.”

21 I agree with the respondent that the formulation of an opinion on these matters is a question of fact.

22 I agree with the determination of the District Court that I have set out above. I consider that the applicant appears to have had reason for doing what he did and that the circumstances the District Court took into account in refusing to record the conviction are also relevant to the tribunal's decision. It is not contended that there were any further convictions or disentitling behaviour of the applicant since the unfortunate events of September 1996.

23 While the assaults here were in the serious category, having regard to all the circumstances that lead to the commission of the offence, including the applicant’s explanation, his medical and mental condition and state of mind at the time, I have formed the opinion that the two subject counts of assault do not constitute serious assault offences within the meaning of regulation 11(c)(ii) of the Regulations.

The Firearms or Weapons Argument

24 As to the issue whether there was an offence here “relating to” firearms or weapons within the meaning of regulation 11(a) of the Regulations, the respondent contends that the offence related to the possession by the applicant of a weapon, namely, a kitchen knife of some kind.

25 Paragraphs 35 to 43 of the respondent’s written submissions addressed this issue. In short, it was contended that by a combination of regulation 11(c) of the Regulations and section 11(5)(b) of the Firearms Act 1996 and regulation 5 of the Firearms Regulation, the applicant committed an offence relating to the possession of use of a weapon.

26 On the evidence before me, the applicant was plainly in possession of a knife at one or more points in the events that led to the charges here. However, I am unable to determine whether the actual charges here alleged an assault with a knife as an element of the commission of the said offences. I think that in the absence of the form of indictment or charge itself, it is impossible for me to finally determine the issue. The applicant here was originally charged with two counts of “Use Weapon to Commit Indictable Offence”, section 33B(a) of the Crimes Act 1900. However, those charges were not pursued by the Crown.

27 It seems to me that on the evidence presently before me, the applicant’s possession of the knife was a fact, among a number of facts, relating to matters leading to the assault charges. Possession of the knife was not an essential element of the charge itself. Therefore I am satisfied that the two assault offences were not related to applicant’s possession of a weapon in the relevant sense of the Regulations.

28 The matter must continue for determination of the further issues. I have yet to hear the case of both parties on the fit and proper person test and the public interest.

29 I determine:

(a) In the opinion of the Tribunal, the finding that the applicant was guilty of two assault offences on 16 June 1997 with no conviction recorded is not a "serious assault offence" within the meaning of regulation 11(c)(ii) of the Security Industry Regulation 1998; and

(b) The applicant’s two assault offences on 16 June 1997 were not offences relating to firearms or weapons within the meaning of regulation 11(a) of the Regulations; and

(c) The matter be listed by the Registrar for further directions.