Qutami v Commissioner of Police, NSW Police Force

[2012] NSWADT 6

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Qutami v Commissioner of Police, NSW Police Force [2012] NSWADT 6
Hearing dates:	16 January 2012
Decision date:	19 January 2012
Jurisdiction:	General Division
Before:	S Frost, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Security industry - fit and proper person - applicant previously guilty of soliciting murder - conviction within 10 years prior to application for licence - conviction not disclosed on licence application - previous refusal of licence not disclosed on licence application
Legislation Cited:	Security Industry Act 1997
Cases Cited:	IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 Sawires v Commissioner of Police [2010] NSWADT 4 Tannous v Commissioner of Police [2011] NSWADT 116 Lal v Director-General, Department of Transport [2001] NSWADT 74 Farquharson v Director-General, Department of Transport [1999] NSWADT 53 Furlong v Commissioner of Police, New South Wales Police Force [2009] NSWADT 293
Category:	Principal judgment
Parties:	Hani Jamil Qutami (Applicant) Commissioner of Police (Respondent)
Representation:	H Qutami (Applicant in person) Bartier Perry (Respondent)
File Number(s):	113110

Reasons for decision

1. GENERAL DIVISION (S FROST (JUDICIAL MEMBER)): The Applicant wants to work in the security industry. On 7 January 2011 he applied for a provisional class 1AC security licence so that he could work as an unarmed guard and a crowd controller. The application was refused, and the refusal was upheld on internal review. The Applicant now wants the Tribunal to review the decision.

1. I have decided to affirm the decision to refuse to grant a licence to the Applicant. My reasons follow.

The legislation

1. The relevant legislation is the Security Industry Act 1997 . The Act prohibits the carrying on of specified "security activities" without a licence. It is the Commissioner of Police who is charged with the responsibility of considering licence applications and of deciding whether or not to grant a licence in a particular case.

1. The "general suitability criteria" for licences are in s 15 of the Act. Under s 15(1)(a), the Commissioner must refuse to grant a licence if the Commissioner is satisfied that the applicant is "not a fit and proper person to hold the class of licence sought by the applicant". Under s 15(3) of the Act, the Commissioner may refuse to grant a licence if the Commissioner "considers that the grant of a licence would be contrary to the public interest". These are the provisions on which the Commissioner relied to refuse to grant a licence, and on which the Commissioner submits the refusal decision should be upheld.

The background

1. The Applicant is of Jordanian extraction. He and his extended family are Orthodox Christians.

1. Over four days in August 1998 he planned and attempted to solicit a person to murder his own niece. The niece had apparently left her husband and resumed a relationship with a Muslim man. The motivation for the solicitation to murder seems to have been to safeguard, or restore, the reputation of the family of the Applicant's brother (the father of the proposed victim).

1. On 8 March 2001, in the District Court, the Applicant pleaded guilty to the offence of soliciting murder. He was sentenced to 4 years, 5 months and 21 days in prison, with a non-parole period of 11 months and 21 days. The Crown appealed against the head sentence and the non-parole period on the ground that they were inadequate. On 28 June 2001 the Court of Criminal Appeal decided not to disturb the head sentence, but increased the non-parole period to 29 months and 21 days.

1. Those dates are important because, although the offence occurred more than ten years before the Applicant applied for a security licence on 7 January 2011, his conviction was recorded within that ten-year period. That timeframe brings into sharp focus one of the questions in the current licence application form, question 3.2, which is:

Have you been to court in the last 10 years in New South Wales or elsewhere and been convicted of an offence, eg: Monetary Penalty, Good Behaviour Bond, Community Service Order, etc?

1. The Applicant ticked the box "No".

1. It is also relevant to note that on 2 August 1998, only a few weeks before the commission of the "solicit to murder" offence, the Applicant had signed an earlier application for a security licence. By the time the security licensing branch came to consider the application, the Applicant had been charged with the offence. The licence application was refused under s 15(1)(a), the "fit and proper person" provision. That fact is important because another question in the current licence application form is question 3.1:

Have you ever been refused a Licence or had a Licence suspended, cancelled or revoked in New South Wales or elsewhere?

1. The Applicant ticked the box "No" in answer to this question as well.

1. Since his release from prison at the conclusion of the non-parole period in August 2003, the Applicant has had a number of traffic offences and a number of other complaints recorded against him. These complaints are summarised at Annexure A to the Respondent's written submissions. For the most part they relate to the apparent fallout from a civil dispute between the Applicant and a local motor mechanic who has carried out some car repairs which the applicant is unwilling to pay for. This has led to allegations of harassing phone calls and threats, and the granting of an interim personal apprehended violence order against the Applicant. The Applicant's version of events presented to the Police often differs from that of the complainant and it is not possible on the material before me to make specific, detailed findings as to the Applicant's conduct in this regard.

The parties' submissions

1. The Respondent relied on the following factors to support the decision to refuse a security licence:

• the seriousness of the offence of which the Applicant was convicted in 2001;
• the Applicant's lack of candour and frankness in answering questions 3.1 and 3.2 in the application form as he did;
• the lack of any evidence of the Applicant's reformation and change of character, including his conduct since his release from prison.

1. Those submissions were made against the background of an asserted requirement that the security industry be serviced by professional and responsible individuals who can achieve the high standards of conduct required by the special nature of the industry. In particular, the Respondent cited IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230, where the Tribunal said at [27]:

A higher standard is applicable to licensees in the security industry because of the special role it plays 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.

1. The Respondent also referred to Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 where the Tribunal referred at [11] to the importance of a professional industry where competence, integrity and accountability are provided and maintained to a high standard.

1. In written submissions filed in the Tribunal on 31 August 2011, the Respondent submitted:

[45] The Applicant seeks to rely on a number of character references. A few observations need be made.

[46] Firstly, the references make no specific reference to the facts in this matter or the Applicant's previous conviction and accordingly, the Tribunal does not know whether the views expressed in the references would be different with that knowledge. As stated in Sawires v Commissioner of Police [2010] NSWADT 4 at [40]:

Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show knowledge of negative history, they must be approached with caution.

[47] Accordingly, the references are of little value or weight as the deponent has not been made aware of the matters in these proceedings before giving their views: see ASIC v Australian Investors Forum Pty Ltd (No. 3) [2005] NSWSC 1198 at [26]; Alfred v Primmer & Ors [2009] FMCA 158 at [41].

[48] Secondly, other than Father Saad, the references do not identify the basis on which the opinions have been formed, such as the frequency and quality of contact.

1. Those paragraphs generated the following response from the Applicant, which was included in the "submission" document that he handed up on the morning of the hearing:

[12] I reject the respondent's submission numbered 45-48 in relation to the character references.

[13] The character references support submission numbered 12 and support the appeal at hand. By way of clarification [four named referees] are aware of the conviction and I have known such individuals for 25 years, 10.5 years, six years and 30 years respectively. Accordingly, it is arguable that respondent's submission numbered 46 is incorrect as the views expressed in the references were made even with the knowledge of the conviction. Further the duration of the contact combined with the awareness of the conviction indicates that the references should be afforded great weight in these proceedings.

1. That is no substitute for formal statements to that effect by the referees themselves. I can attach little weight to those assertions by the Applicant.

1. The Respondent also submitted that the Applicant's traffic offences demonstrate a "disregard for public safety". In this respect it cited Tannous v Commissioner of Police [2011] NSWADT 116 at [37] where the Tribunal recognised that significant and continual disregard of traffic laws reflected a disregard for a regulatory scheme aimed at ensuring public safety.

1. The Applicant responded to the Respondent's submissions by:

• disputing the Respondent's claimed assertion that "I pose a threat to the safety of society";
• noting that the offence occurred "over thirteen years ago" and submitting that it was irrelevant "as it occurred a lengthy time ago and I consider myself to be a rehabilitated man as conveyed with my clear criminal record since that time";
• rejecting the claim that his application was "dishonest or uncandid" as "the conviction was handed down 13 years ago and I have not attended Court other than for traffic offences and personal family matters";
• claiming that he had spoken to a number of officers in the security licensing branch who had told him that his record would not disqualify him from getting a licence, and that he should undertake appropriate training courses, which he did;
• downplaying the significance of the traffic offences with comments like "everyone gets traffic fines", and "even the Commissioner himself got a traffic fine";
• noting the hardship he was suffering as a result of his inability to secure employment in the security industry.

Consideration

1. The Applicant's conviction for solicitation to murder is a serious matter which weighs against him in any consideration of his fitness and propriety to be granted a security licence. That is not to say that, as a result of the conviction, he must necessarily be excluded from the industry for all time. But it does mean that he must demonstrate that he is now a person who meets the high standards of integrity that the community expects of participants in the industry, and that he can be relied on to maintain public order as an unarmed guard and crowd controller in circumstances of close interaction with members of the public.

1. He has submitted that he is not a threat to the safety of society but he does not say on what he bases that submission. He has provided to the Tribunal nothing that demonstrates his recognition of the seriousness of the offence, and nothing that demonstrates that he has reformed and rehabilitated himself from the person who sought, albeit 13 years ago, to have his niece murdered.

1. Added to that is the fact that he did not disclose in his 2011 application, as he should have, that his conviction had been recorded within the previous 10 years, and that he had had a previous application for a licence refused. These shortcomings were notified to the Applicant a full nine months ago, in April 2011 on internal review of the original refusal decision, but he still maintains his belief that his application was not "dishonest or uncandid". The refusal to accept that reality also weighs against him.

1. His claim about having received assurances from the security licensing branch that his application would be viewed favourably is difficult to accept. He has been unspecific about the detail that he gave in relation to his previous conviction, and in any event, the statement of Ms Byrnes (Exhibit R2) shows how unlikely it is that the Applicant's version of events is correct. But even if it were, his application to the Tribunal cannot be determined by reference to opinions, no matter how honestly expressed, by representatives of the original decision-maker.

1. As far as the traffic offences are concerned, they are hardly in the same category as those considered in Tannous . There the Tribunal was concerned with a person who repeatedly drove while his driver's licence was suspended or after he had been disqualified from driving. On top of that there were speeding convictions and convictions for driving with four or more unrestrained passengers, also while unlicensed. The Applicant in this case has, since 2004, two speeding offences, one unlawful U-turn, one drive in transit lane and one fail to dip headlamp. While it is not a record to be proud of, it falls short of demonstrating the total disregard for public safety that was evident in Tannous .

1. Finally, I should mention the Applicant's submission in relation to the financial hardship to which he claims to be exposed by his inability to work in the security industry. That is not a factor properly to be taken into account in consideration of a person's fitness and propriety to be licensed: Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47].

1. On the other hand, it is relevant to consider whether a member of the public, fully informed as to the Applicant's history, would consider it appropriate to license the Applicant to carry out the specified activities in the security industry: see, for example, Farquharson v Director-General, Department of Transport [1999] NSWADT 53 and Furlong v Commissioner of Police, New South Wales Police Force [2009] NSWADT 293. In my opinion, a member of the public would expect the answer to that question in this case to be "No".

Decision

1. The Applicant is not a fit and proper person to hold a provisional class 1AC security licence. In the circumstances it is not necessary to deal with the Respondent's alternative submission that the grant of a licence would be contrary to the public interest.

1. The decision under review is affirmed.

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Decision last updated: 19 January 2012