Pape and Commissioner Of Police
[2007] WASAT 166
•23 March 2007
PAPE and COMMISSIONER OF POLICE [2007] WASAT 166
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 166 | |
| SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) | |||
| Case No: | VR:194/2006 | 23 MARCH 2007 REASONS DELIVERED EXTEMPORANEOUSLY | |
| Coram: | MR P McNAB (MEMBER) BRIG A WARNER (SENIOR SESSIONAL MEMBER) MR J N HARPER (SESSIONAL MEMBER) | 22/03/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The decision under review was set aside and in substitution for that decision there was a decision that the applicant be granted the two licences that he had applied for under the Security and Related Activities (Control) Act 1996 (WA). | ||
| B | |||
| PDF Version |
| Parties: | TIMOTHY PAPE COMMISSIONER OF POLICE |
Catchwords: | Professions and trades Vocational regulation Security agents Security officer and crowd controller Application refused by Commissioner of Police Applicant required to be a person of good character and a fit and proper person Applicant had serious convictions dating from 2003 Applicant had criminal damage and weapons charge Suspended sentences Convictions included facts showing a failure to obey a Police direction Whether sufficient transformation of character to justify granting licences Stability of current family and employment circumstances Employment in a remote Northern Territory town included working with Police and community Balancing of factors including public interest issues pertaining to industry regulation Tribunal satisfied on balance that applicant had transformed situation and character Application allowed and licences issued |
Legislation: | Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 72 |
Case References: | Grover v Commissioner of Police [2005] WASC 263 |
Orders | 1 The application for review is allowed,2. The decision under review is set aside and in substitution for that decision there will be a decision that the applicant be granted the two licences that he had applied for under the Security and Related Activities (Control) Act 1996 (WA) |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : PAPE and COMMISSIONER OF POLICE [2007] WASAT 166 MEMBER : MR P McNAB (MEMBER)
- BRIG A WARNER (SENIOR SESSIONAL MEMBER)
MR J N HARPER (SESSIONAL MEMBER)
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Professions and trades - Vocational regulation - Security agents - Security officer and crowd controller - Application refused by Commissioner of Police - Applicant required to be a person of good character and a fit and proper person - Applicant had serious convictions dating from 2003 - Applicant had criminal damage and weapons charge - Suspended sentences - Convictions included facts
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showing a failure to obey a Police direction - Whether sufficient transformation of character to justify granting licences - Stability of current family and employment circumstances - Employment in a remote Northern Territory town included working with Police and community - Balancing of factors including public interest issues pertaining to industry regulation - Tribunal satisfied on balance that applicant had transformed situation and character - Application allowed and licences issued
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 72
Result:
The decision under review was set aside and in substitution for that decision there was a decision that the applicant be granted the two licences that he had applied for under the Security and Related Activities (Control) Act 1996 (WA).
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Sgt S Bagley
Solicitors:
Applicant : Self-represented
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Grover v Commissioner of Police [2005] WASC 263
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Summary of Tribunal's decision
1 In this review, the Tribunal was faced with a young man (the applicant, Mr Pape), who had serious convictions from 2003 and who, as a consequence, had been denied both a security officer's licence and a crowd controller's licence. The Commissioner of Police took the view that Mr Pape was not of good character, and was not a fit and proper person to hold these licences.
2 The convictions were regarded by the Tribunal as serious, if not disturbing. They resulted in suspended gaol sentences. One of the incidents involved a failure by Mr Pape to comply with an order given by a police officer to drop a weapon that Mr Pape had been carrying.
3 Nevertheless, Mr Pape produced evidence of a radical transformation in his character. He was now in a stable employment and family situation, and had not been involved in any relevant criminal behaviour (apart from some traffic matters which, standing alone, would not necessarily disentitle him to such security industry licences). Moreover, he had worked in a remote Northern Territory town in a responsible position that involved liaison with local police. The Tribunal accepted his evidence.
4 The Tribunal noted that its task was essentially one of balancing matters for and against the applicant, having regard to the public interest in maintaining appropriate standards and confidence in the profession.
5 The Tribunal was satisfied that Mr Pape had demonstrated a material change in attitude, maturity, judgment and responsibility that suggested his suitability to hold the licences he had sought.
6 The Tribunal therefore allowed the review and granted the licences sought.
7 What follows below is an edited version of the oral reasons for decision delivered by the Tribunal on the day of hearing.
Background
8 On 8 November 2006. the applicant, Mr Pape, sought a review of a decision made on 25 October 2006 by the licensing officer of the commercial agents' division of the Western Australian Police Service. Mr Pape had been denied both a security officer's licence and a crowd controller's licence under the Security and Related Activities Control Act
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- 1996 (WA) (Act). The grounds of the refusal given by the police related to the applicant's criminal history, which will be referred to in more detail in a moment.
Licencing regime
9 Under the Act a licence is not to be issued under s 52(c) unless the officer or, on review, this Tribunal exercising the powers of an officer under that Act, is satisfied that the applicant is "of good character and is a fit and proper person to hold a licence". The applicant is an "aggrieved person" within the meaning of s 72 of the Act and, accordingly, may seek a review of the decision by the officer in this Tribunal. The question of whether, having regard to that criminal history, Mr Pape is "of good character and a fit and proper person" is the issue before the Tribunal.
Mr Pape's case
10 In his application to the Tribunal, Mr Pape alleged that his criminal history was "not the worse [sic]"; secondly, that his criminal record "had no assault on it" - that is, in his criminal record there was no reference to any conviction or charge in relation to any assault; thirdly, that he had no drug charges and, finally, he suggested that in the security industry generally "there are people who have been to gaol and [who] have extensive criminal records". Mr Pape, in his evidence before the Tribunal, clarified that his general point was that in comparison to some other people who have held or hold security licences, he was not the worst offender known or imaginable.
11 Mr Pape's criminal history is as follows: Firstly, he had some burglary charges dealt with as a juvenile offender in Bunbury when he was aged 17. These were dealt with by the juvenile justice team program, which did not result in any conviction. He has had four traffic offences from December 2002 and one further traffic offence from June 2005. As we calculate these matters, there is a total of $1300 in traffic fines for these offences, with a 12 months disqualification in relation to one of the December 2002 offences. This is the most serious of these traffic offences.
12 These matters, standing alone, might well not disqualify Mr Pape from holding the licences that he had sought but that is not a matter that we need go into further on this occasion. However, more seriously, Mr Pape was convicted in April 2003 of two quite serious charges - first, criminal damage, for which he received, from the Bunbury Magistrates' Court, a sentence of 18 months imprisonment, suspended for two years;
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- secondly, relating to the same events, he received a concurrent sentence of four months imprisonment, also suspended for two years.
13 These events occurred in October 2002 when Mr Pape was aged 18 years and six months approximately. He pleaded guilty to these offences at the earliest opportunity and was represented by Legal Aid. The circumstances of the October 2002 offences were serious, if not disturbing, in light of the police version of events. The police version, which was unchallenged at the time of the plea and has not been challenged today, includes reference to the following events.
14 There were three defendants including Mr Pape. There was an attack on a property which involved the smashing of glass windows with baseball bats. One of the offenders was armed with a knife. The occupants were awakened. The occupants included a nine-year-old child and a pregnant woman. There was an altercation and a trashing of the house and, most seriously of all, when Mr Pape was apprehended later, in the early hours of the morning, he was ordered by the police to drop his weapon. He did not comply and was struck with a police baton due to the threat he presented to police. The Tribunal stresses that the last allegation - albeit the defendant was not charged with assault - is particularly relevant, and of concern to us.
15 To give some context to the circumstances of the offence, Mr Pape told us (and we have accepted) that at the relevant time he was living with his brother and that there were a series of altercations with certain other people who had previously "trashed his house". He and his brother both had pregnant partners; they had tried to get the police involved but, Mr Pape conceded, they gave the police no concrete evidence as to the identity of these persons. He also frankly admitted that alcohol consumption was a problem for him during this period. He expressed remorse for the incident and explained that it was a serious indiscretion which he felt very embarrassed about, and now realised the full consequences of what that incident had led to.
16 The Tribunal heard from Mr Pape about both his current circumstances, and the circumstances of his family and work at the time of the conviction. At the earlier time he had a pregnant partner and she had given birth to a child on 1 April 2003, shortly before the conviction. He was working casually in metalwork fabrication. His circumstances after the event were that he moved house to Boyanup. He had some full-time work. He had some relationship problems. He moved, looking for work, up the west coast and eventually landed in Timber Creek in the
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- Northern Territory where he worked for 12 months from September 2005 to September 2006. He rose to being the bar manager of the Wayside Inn in that town. He would travel regularly back to see his partner, who was the same partner he had at the time of the offence in 2003. He told us of his good relations with the Timber Creek police (who he made aware of as to his past convictions) and of his attempts to bridge a racial divide in the town (as it related to his hotel).
17 He also gave some evidence of his other circumstances since moving from the Northern Territory back to Bunbury. He has had some occasional non-operational "work experience" with a security company and he continues to look for work - mainly of a casual, unskilled, nature. He has been unable to use, for the moment, his Northern Territory experience to get employment in the Bunbury region where he resides. His current family circumstances appear to be stable, and he says that he has been helping his brother and communicating more with his father. He has a stable immediate family relationship including his child already referred to. He also has a stable work record in the circumstances that have been alluded to, and he now has a responsible attitude to alcohol. These are all matters of evidence given by Mr Pape that were not seriously challenged by Sergeant Bagley. To be fair, Sergeant Bagley did not have a full record of what was to be led in this regard. Notwithstanding that, we have accepted the evidence that Mr Pape has given us as to these matters.
18 Turning to his references, Mr Pape has told us that he could not obtain a reference from the Northern Territory Police at Timber Creek, with whom he had good relations, in respect of his work in the Wayside Inn. He also tried to obtain references from the owners of that business. Because these owners were pastoral station operators, who did not visit town, and it was difficult to communicate with them, we accept that Mr Pape had a reasonable explanation for not being able to produce written references from the owners of the Wayside Inn. He has produced an undated, handwritten reference from a Mr Matthew Bennett, who apparently employed Mr Pape on non-operational work experience, which we have already mentioned. He found Mr Pape to be "very professional".
19 Mr Bennett is apparently employed by a security company in Bunbury and he does say that from the time Mr Pape applied for work with him that he had known about his record and he suggests that these matters should not be given too much weight because they happened before Mr Pape turned 18. Mr Pape explained the circumstances of that reference which was to the juvenile offences. Mr Pape assured us that Mr
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- Bennett, in giving the reference, put it together in a great hurry (which is why it appears in a handwritten form), and that he (Mr Bennett) was fully aware of the incident from October 2002 which led to the April 2003 conviction. We accept Mr Pape's evidence that Mr Bennett knew about these matters.
Discussion of the case
20 We emphasise in our consideration two matters. One is the violent nature of the altercation of October 2002, and the complete disregard for the innocent occupants of the house, the scale of the threats, the destruction to property and Mr Pape's failure to obey the police. On the other hand, Mr Pape has given us considerable evidence of a radical transformation in his situation and character since then.
21 Turning to the law in this matter, the Tribunal has been guided by what the Supreme Court endorsed in Grover v Commissioner of Police [2005] WASC 263, and we have had particular regard to paragraphs [13] to [18] thereof. There is an emphasis in that case on the balancing of factors for and against the applicant in terms of the overall character of the applicant - and this is a matter that we will return to in a moment - his criminal record and, importantly, the protection of the public confidence in and the professional standards of the industry being regulated. Here, the critical issue is whether the character of Mr Pape is still sufficiently in doubt given the effluxion of time from the events of October 2002 until today - that is, March 2007 - some four and a half years ago, since the original incident.
22 We firstly note, and this is a matter that Sergeant Bagley has emphasised, that until April 2005 - that is, two years after his conviction - Mr Pape had a suspended sentence "hanging over his head". Moving beyond that period, however, apart from a traffic charge in 2005, Mr Pape seems to us to have largely rehabilitated himself, principally by finding stable employment and keeping out of trouble.
23 As part of the balancing of factors for and against him, we will now summarise the matters which we see as relevant in the circumstances. Starting with the matters against Mr Pape, the Tribunal notes the serious nature of the convictions, particularly the criminal damage and possessing a weapon convictions resulting from the events of October 2002; secondly, the limitations and weaknesses of the reference provided by Mr Bennett of Security Guard Services; thirdly, the absence of any reference or testimonial from Mr Pape's time in the Northern Territory and particularly his employment at the Waysite Inn and his relationship with
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- the Northern Territory police (and, therefore, the consequential failure of Mr Pape to present possibly his best case today) and finally, the 2005 traffic conviction and Mr Pape's previous attitude to driving and traffic laws.
24 The positive factors are: First, that we see a stable family and personal commitment; secondly, a demonstrated commitment to employment or seeking employment; thirdly, evidence of access to a responsible mentor or person who could provide Mr Pape with mature advice, and we are referring to his father here; fourthly, there is no evidence of the misuse of alcohol or other drug abuse in his recent past; fifthly, the Tribunal sees an appropriate attitude and respect for authority and the law in recent times; and lastly, the Tribunal notes Mr Pape's employment in very difficult and demanding circumstances in the Northern Territory, including his balanced approach to the various elements of that community and the establishment of a good working relationship with the local police.
Conclusion
25 Taking into account the law as we understand it, and the factors for and against the applicant, and the responsibility placed on the Tribunal (particularly in terms of maintaining public confidence in the licensing system) on balance, having regard to all of those matters, we have come to the conclusion that there has been a demonstrated material change in the attitude, maturity, judgment and responsibility of Mr Pape on the evidence available to us, having regard to the intervening years since the incident that we have referred to.
26 In these circumstances, we have concluded that Mr Pape in effect ought to be given a chance. He will receive the two licences that he has applied for. We should note that should Mr Pape fall back into trouble and lose those licences, the chances of getting them back would be marginal, at best. We do not expect, however, to see him return before us – based upon the evidence before the Tribunal today.
Orders
1 The application for review is allowed.
2. The decision under review is set aside and in substitution for that decision there will be a decision that the applicant be granted the two licences that he had applied for under
- the Security and Related Activities (Control) Act 1996 (WA).
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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