PARRY and COMMISSIONER OF POLICE
[2009] WASAT 13
•27 JANUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: PARRY and COMMISSIONER OF POLICE [2009] WASAT 13
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 20 JANUARY 2009
DELIVERED : 27 JANUARY 2009
FILE NO/S: VR 197 of 2008
BETWEEN: GRANT EDWARD PARRY
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Security officer - Crowd controller - Character - Fit and proper - Previous offences - Rehabilitation
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 72(1)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sergeant Bagley (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
A and Commissioner of Police [2005] WASAT 121
Coulthard v Henker [2003] WASCA 187
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Parry applied for a review of the decision by the Commissioner of Police to refuse his application to be licensed as a security officer and crowd controller.
The Commissioner contended that due to Mr Parry's criminal record and his failure to declare all his offences to the Commissioner in his application to be licensed, he ought not to be licensed. His criminal record comprised three drink driving offences, possessing a prohibited drug, driving while under suspension, failing to stop after an accident and exceeding the speed limit by more than 41 kilometres per hour. All of these offences took place between February 2004 and September 2007.
Mr Parry expressed remorse and told the Tribunal he is a changed person and that he deserves a second chance. He has taken up employment, he obtained a qualification as boilermaker and he is in a stable relationship.
The Tribunal found that on balance it was not satisfied that sufficient time had lapsed since the offences were committed and the lodgement of an application to be licensed as a security officer or crowd controller. Although the Tribunal accepted that Mr Parry had shown some remorse for what had happened, it also had to take into account the seriousness of the offences, that they were committed over a period of time, that the most recent conviction was in October 2007, and that as a security officer and crowd controller a high degree of trust and integrity is required. The Tribunal also noted that Mr Parry did not complete the licence application truthfully and failed to declare the totality of his criminal convictions to the licensing officer.
Mr Parry may have been young at the stage when he committed the offences, but he also committed offences as an adult. When all of these are combined, it reflects negatively on his character. Mr Parry can again apply in future to be licensed and such application would then be considered on its merit.
The decision of the Commissioner of Police not to issue the licences was affirmed.
Background
This is an application under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (Act) whereby Mr Parry seeks review of the decision by the Commissioner of Police (Commissioner) to refuse his application to be issued with a security officer licence and a crowd controller licence.
The Tribunal can affirm the decision, revoke it, set it aside and substitute it with another decision. The Tribunal can also refer the decision back to the Commissioner to reconsider.
The Tribunal may not issue the licences unless it is satisfied that Mr Parry is of good character and that he is a fit and proper person to hold such licences pursuant to s 52(c) of the Act.
The Act provides as follows:
A licensing officer is not to issue a licence unless the officer is satisfied
(a)…
(b)…
(c)that the applicant is of good character and is a fit and proper person to hold a licence; (emphasis added)
The licensing officer refused the application on the following grounds: Mr Parry acted dishonestly when he failed to declare on his licence application form the entirety of his criminal record. He only mentioned that he had a drink driving offence, while in fact he had also been convicted of several other offences. The totality of his criminal convictions were three drink driving offences, possessing a prohibited drug, driving while under suspension, failing to stop after an accident and exceeding the speed limit by more than 41 kilometres per hour. All of these offences took place between February 2004 and September 2007.
Mr Parry contended that he is now a changed person, that he has brought his life back to order and that he deserves a second chance. The offences were committed when he was young and under the influence of the wrong friends. He also explained that he had a very tough upbringing and that contributed to his behaviour as a juvenile.
Sergeant Bagley, for the Commissioner of Police, contended that although the convictions were recorded between February 2004 and September 2007, the seriousness of the offences and the repeated nature of some of the offences support a decision that Mr Parry should not be licensed. Security officers and crowd controllers are placed in positions of trust where they take care of other persons' property, they are placed in positions of authority, they are required to be law abiding and they are often exposed to persons who are under the influence of drugs or alcohol. Mr Parry has, according to Sgt Bagley, shown himself to be prone to the misuse of alcohol and drugs, and that reflects negatively on his character.
Sergeant Bagley acknowledged that a period of rehabilitation should be allowed but contended that more time is needed for Mr Parry to show that he has turned his life around for the good. Sergeant Bagley suggested that if proposed amendments to the Act were taken into account, at least five years should be allowed for rehabilitation since that is the period that would apply if the amendments were to take effect.
The Tribunal took into account the submission and evidence by Mr Parry. Mr Parry explained that he is remorseful for what had happened, that he was young when he committed some of the offences and that he is a changed person. He has made new friends and does not mix with the wrong people. He has not re-offended and has had no convictions since August 2007.
He has qualified himself as a boilermaker, he has bought a house and is in a stable relationship. He submitted letters of reference in which his reliability and strength of character were highlighted.
Consideration
The Tribunal is faced on the one hand with Mr Parry's desire to be licensed on grounds that he is fully rehabilitated and on the other hand, the Commissioner who contends the public interest requires that Mr Parry not be licensed at this stage.
The Commissioner accepts that Mr Parry may again in future apply to be licensed and that, if he keeps his record clean, may be successful. The Commissioner also accepts that Mr Parry is making good progress towards putting together a stable life.
The Tribunal must balance all the considerations before it to come to a correct and preferable decision. We note that the public interest is multifaceted on the one hand it requires that persons who do not meet the test of s 52(c) to be refused a licence, but the Act also allows a rehabilitated person to become integrated in society and therefore bestows the Tribunal with a discretion.
In the decision of A and Commissioner of Police [2005] WASAT 121 the Tribunal referred to several authorities dealing with the fit and proper test. At [61] of the decision, the Tribunal concluded as follows:
Members of the public, in particular those that visit facilities where licensees are on duty, expect licensees to comply with the high standards set by the Act and to demonstrate a level of moral integrity and rectitude of character commensurate with their duties … we have a duty to protect the interests of the public and maintain public confidence in the security industry.
The Act does not define what the legislator intended with the words 'good character' or 'fit and proper'.
We regard the finding by Barker J in Coulthard v Henker [2003] WASCA 187 at [60] particularly instructive, namely, that the issue before the licensing officer requires him to 'balance factors for or against the view that the respondent satisfied this (s 52(c)) requirement'.
The Tribunal has the discretion to take into account any relevant information that might assist it to come to a decision under s 52(c). This includes taking into account considerations such as the objectives of the Act, the interests of the public, the nature of the duties that Mr Parry would be required to discharge, the circumstances in which the duties may be discharged, the criminal record of Mr Parry, the circumstances in which those offences were committed, the personal circumstance of Mr Parry and information regarding his character, the time that has lapsed since his convictions, and his ability to fulfil the duties required from him.
The test applied by the Tribunal is therefore not an exercise in theory but a decision based on the practical situation of Mr Parry.
The duties of security officers place them in a situation of trust where they guard and protect the property of other persons, and where they deal with persons who are potentially in vulnerable situations. Both these professions require a high degree of moral rectitude, trust, reliability and honesty. Above all, the persons who are licensed must be law abiding.
The Act determines that the licensing officer 'is not' to issue a licence unless the officer is satisfied that Mr Parry is of good character, and a fit and proper person to hold the licence. This provision is mandatory once the licensing officer is of the view that an applicant is not fit and proper, and not of sound character to be issued a licence.
The Tribunal accepts Mr Parry's evidence that he is making attempts to turn his life around for the good. He has made very good progress by obtaining a qualification and setting up a stable family life. This is supported by the letters of reference he submitted. But we must also take cognisance of his criminal record and the demands placed upon the Tribunal by the public interest. Mr Parry has, over a period of time, shown a disregard for the law by repeated speeding, alcohol abuse, urinating in public and possession of drugs. These acts reflect negatively on his character.
The Tribunal is further concerned that Mr Parry has, according to his own explanation during the hearing, accepted a plea of guilty for possessing drugs because he wanted to 'protect a friend'. If this is indeed the case, then Mr Parry shows higher regard for his friendship than for the truth before a court of law. That is a negative reflection on his character. If his evidence that he wanted to protect a friend is not true, then Mr Parry is not yet accepting the full implications of his conviction for possession of drugs. That is also a negative reflection on his character.
The Tribunal concludes that the explanation offered by Mr Parry that he pleaded guilty for the sake of a friend, whether the explanation is true or not, reflects negatively on Mr Parry's character.
On balance, the Tribunal is not satisfied that sufficient time has lapsed since the offences were committed and the application to be licensed as a security officer or crowd controller. Although we accept that Mr Parry shows signs of remorse for what had happened, we must also take into account the seriousness of the offences, that they were committed over a period of time, and that as a security officer and crowd controller a high degree of trust and integrity is required. We also take note that he did not complete the licensing application truthfully and failed to declare the totality of his criminal convictions.
Mr Parry may have been young at the stage when he committed some of the offences, but that does not reduce the negative reflection on his character. The conviction of possession of drugs was in 2007 and the incorrect completion of the questionnaire was in 2008. Mr Parry can therefore not attribute all of the events to his actions as a juvenile.
Mr Parry can again apply in future to be licensed and such application would then again be considered on its merit.
Finding
Following from the evidence presented, the Tribunal is not satisfied that Mr Parry meets the requirements of s 52(c) of the Act. The Tribunal is therefore not empowered to set aside the decision of the licensing officer. The decision of the licensing officer to refuse to issue the licences should therefore be affirmed.
Orders
1.The application for review fails.
2.The decision by the licensing officer not to issue a crowd controller licence or a security officer licence to Mr Parry is affirmed.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
0
2
1