RANIERI and COMMISSIONER OF POLICE
[2025] WASAT 3
•13 JANUARY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: RANIERI and COMMISSIONER OF POLICE [2025] WASAT 3
MEMBER: MR E CADE, MEMBER
HEARD: 30 OCTOBER 2024
DELIVERED : 13 JANUARY 2025
FILE NO/S: CC 468 of 2024
BETWEEN: GIUSEPPE RANIERI
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Security and Related Activities (Control) Act 1996 (WA) - Security and Related Activities (Control) Regulations 1997 (WA) - Disqualifying offence - Prohibited person - Whether Tribunal permitted to disaggregate an aggregate penalty - Proper method for disaggregating an aggregate penalty
Legislation:
Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 36B(2), s 73(1)(b)
Medicines and Poisons Act 2014 (WA), s 14(4)
Misuse of Drugs Act 1981 (WA), s 6(2)
Private Security Act 2004 (Vic), s 13(1)
Road Safety Act 1986 (Vic), s 49(1)(a)
Road Traffic Act 1974 (WA)
Security and Related Activities (Control) Act 1996 (WA), s 4A, s 52, s 52(1)(c), s 52(1)(ca), s 52(1)(g), s 72(1)
Security and Related Activities (Control) Regulations 1997 (WA), reg 24, reg 24(b), reg 25, reg 25(1), reg 25(3), reg 25(3)(a), reg 25(3)(b), Sch 2, Div 1, Div 2
Sentencing Act 1991 (Vic), s 6(1), s 51(2)(b)
Sentencing Act 1995 (WA), s 6(1), s 54(3)
State Administrative Tribunal Act 2004 (WA), s 9, s 27(2)
Young Offenders Act 1994 (WA), s 190(1)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms F Elferink and Mr J Parker |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Excell Protective Group Pty Ltd v Victoria Police (Review and Regulation) [2017] VCAT 88
Pearson v Minister for Home Affairs [2022] FCAFC 203
Ransley and Commissioner of Police [2014] WASAT 132
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter is before the Tribunal by way of an application for review dated 17 July 2024 under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (SRA Act).
The applicant seeks a review by the Tribunal of the decision of an SRA Act licencing officer to refuse to issue the applicant with Security Officer, Security Monitoring Officer and Crowd Controller Licences (the security licences).
The licencing officer made this decision as he found the applicant is a 'prohibited person' within the definition of s 4A of the SRA Act, due to findings of guilt made by the Melbourne Magistrates' Court with respect to certain offences on 20 January 2022. The licencing officer consequently found that under s 52(1)(ca) of the SRA Act the applicant must not be issued with any security licence for a period of five years from the date of these findings of guilt.
For the reasons that follow, the decision of the Tribunal is that the applicant is not a 'prohibited person' within the meaning of s 4A of the SRA Act and so he is not prevented by s 52(1)(ca) of the SRA Act from being issued with the security licences.
The Tribunal has also decided it does not have sufficient information before it to determine whether the applicant satisfies the requirement under s 52(1)(g) of the SRA Act to have satisfactorily completed any prescribed training program or to have passed any prescribed test or examination with respect to the security licences for which he has applied. Consequently, the Tribunal has decided it will send the matter back to the licencing officer for reconsideration.
Background
On 20 January 2022 the applicant entered pleas of guilty at the Melbourne Magistrates' Court to three offences (the offences):
(1)Possess a prescription drug: s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act (Vic)), maximum penalty 10 penalty units ($1,817.40);[1]
(2)Possess Gamma Hydroxy Butrate (GHB): s 73(1)(b) of the DCPS Act (Vic), maximum penalty 30 penalty units ($5,452.20) or 1 year imprisonment or both; and
(3)Drive under the influence of drug: s 49(1)(a) of the Road Safety Act 1986 (Vic) (RS (Vic) Act), maximum penalty 25 penalty units ($4,543.50) or 3 months imprisonment or both.
[1] The prescribed penalty unit in Victoria from 1 July 2021 to 30 June 2022 was $181.74 - see Victoria Government Gazette No. S 233 published 20 May 2021.
The court fined the applicant $1,000, without conviction, and cancelled his driving licence for four years.
In or around mid-2022 the Commissioner of Police in Victoria issued the applicant with a security officer licence. In or around early 2024 the applicant relocated from Victoria to Western Australia.
On 23 May 2024 the applicant applied to the respondent to issue the applicant with the security licences.
On 10 June 2024 the licencing officer wrote to the applicant:
…
Section 52(1)(ca) of the Security and Related Activities (Control) Act 1996 (the Act) states that a Licensing Officer is not to issue licences unless, the officer is satisfied the applicant is not a "prohibited person".
…
You have been identified as having a finding of guilt for the following disqualifying offence: Possess Drug of Dependence, Possess GHB from 20/1/2022 in Victoria (without conviction $1,000 aggregate fine).
I am satisfied you are a "prohibited person" within the definition of section 4A of the Act, and therefore you cannot be licensed for a period of five (5) years from the last date of your finding of guilt for a disqualifying offence: (20/1/2022).
The Act does not allow me the power to make any alternative decision that will allow you to work in the Security Industry however you are entitled under section 72 of the Act to have my decision reviewed by the State Administrative Tribunal …
The applicant does not dispute the findings of guilt identified by the licencing officer in his letter of 10 June 2024. Rather, the basis of the applicant's review application is he has successfully rehabilitated himself and he is a licenced security officer in Victoria. For these reasons he applies to the Tribunal to issue him with the security licences for which he applied on 23 May 2024.
The review application was heard by the Tribunal as a final hearing on 30 October 2024.
On 29 November 2024 the Tribunal reserved its decision.
The legislative scheme
The Tribunal respectfully adopts the explanation of the legislative scheme set out in Ransley and Commissioner of Police [2014] WASAT 132 (Ransley) at [9] to [11]:
9.Section 27(3) of the SAT Act provides that, in review proceedings, the reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
10.The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: SAT Act s 27(2).
11.On determining the review, the Tribunal must either affirm the Commissioner's decision, vary that decision, substitute its own decision or send the matter back to the Commissioner for reconsideration: SAT Act s 29(3).
Section 52 of the SRA Act relevantly provides that:
52.Issue of licences
(1)A licensing officer is not to issue a licence, other than a temporary licence, unless the officer is satisfied —
(a)that there is sufficient evidence of the applicant's identity; and
(b)in the case of an agent's licence, a security officer's licence and a crowd controller's licence, that the applicant has attained the age of 18 years; and
(c)that the applicant is of good character and is a fit and proper person to hold a licence; and
(ca)that the applicant is not a prohibited person; and
…
(g)that the applicant has —
(i)except where section 53 applies, satisfactorily completed any course of training prescribed in respect of the licence; and
(ii)passed any test or examination prescribed in respect of the licence;
and
…
(j)that the application complies with such other requirements as may be prescribed; and
(k)that there is no other good reason why the licence should not be issued.
Section 4A of the SRA Act relevantly defines a 'prohibited person' under s 52(1)(ca) as follows:
4A.Term used: prohibited person
(1)In this Act, a person is a prohibited person —
(a)if there has been a finding of guilt in relation to a disqualifying offence committed by the person; and
(b)during the disqualifying period prescribed in respect of the offence.
(2)Subsection (1) applies to a person in respect of a finding of guilt made on, or after, 1 January 1996.
(3)A disqualifying period may be prescribed to apply in respect of —
(a)all disqualifying offences; or
(b)a particular kind of disqualifying offence, or particular kinds of disqualifying offences; or
(c)disqualifying offences of a particular class or description, including offences described by reference to the type of finding of guilt that applies in relation to the offences.
Relevantly in this matter, reg 24 of the Security and Related Activities (Control) Regulations 1997 (Regulations) and Div 2 of Sch 2 of the Regulations prescribes a 'disqualifying offence' under s 4A of the SRA Act as follows:
24.Disqualifying offences prescribed (Act s. 3)
The following offences are prescribed as being disqualifying offences for the purposes of the definition of disqualifying offence in section 3 —
(a)an offence described in Schedule 2;
(b)an offence under the laws of the Commonwealth, another State or a Territory or of another country which, regardless of where it was committed, would have constituted an offence described in Schedule 2.
…
Schedule 2 — Disqualifying offences
…
Division 2 — Division 2 offences
Enactment
Offences
…
Misuse of Drugs Act 1981
All offences other than indictable offences
Medicines and Poisons Act 2014
All offences
…
Regulation 25(3) exempts certain offences from the operation of reg 24.[2] Regulation 25 is, in its entirety:
[2] The Victorian security officer licencing regime has an equivalent provision to reg 25(3), although under that regime the range of offences is more restricted than in Western Australia. This has the consequence that none of the three offences is a 'disqualifying offence' in Victoria: s 13(1) of the Private Security Act 2004 (Vic).
25.Disqualifying periods prescribed (Act s. 4A)
(1)In this regulation —
Division 1 offence means an offence described in Schedule 2 Division 1;
Division 2 incident, in respect of a person, means an act, omission or course of conduct involving the person which has resulted in the person being charged with one or more offences described in Schedule 2 Division 2.
(2)For the purposes of section 4A, the disqualifying period prescribed in respect of a disqualifying offence committed by a person is —
(a)in the case of a Division 1 offence, unless the finding of guilt in relation to the offence is a spent conviction —
10 years commencing on the date the finding of guilt was made; or
(b)otherwise — 5 years commencing on the date the finding of guilt was made.
(3)Subregulation (2) does not apply to a disqualifying offence described in Schedule 2 Division 2 —
(a)if the offence arose from the first Division 2 incident involving the person; and
(b)no penalty, or a penalty of, or in total of, less than $500 is imposed on the person in respect of the offence and all other offences described in Schedule 2 Division 2 arising from the same incident.
If reg 25(3) is engaged with respect to the offences for which the applicant was found guilty on 20 January 2022 then the applicant is not a 'prohibited person' within s 4A of the SRA Act, with the consequence that s 52(1)(ca) of the SRA Act does not prevent him from being issued by the Tribunal with the security licences for which he has applied.
However, if reg 25(3) is not engaged with respect to those offences then the applicant is a 'prohibited person' within s 4A of the SRA Act and the Tribunal under s 52(1)(ca) of the SRA Act must not issue the applicant with the security licences for which he has applied. That is, if the applicant is a 'prohibited person' the Tribunal cannot consider whether the applicant's rehabilitation and experience as a security officer in Victoria make him eligible to hold a security licence in Western Australia.
It is not in issue in this review application that offences under the Road Traffic Act 1974 (WA) (and therefore offences under its Victorian equivalent, the RS (Vic) Act) are not disqualifying offences under the SRA Act and Regulations.
That is, it is accepted by the respondent and also by the Tribunal that the drive under the influence of drug offence is not an offence which is relevant to s 52(1)(ca) of the SRA Act, although this is not to say anything about whether as a consequence the applicant is or is not of good character and is or is not a fit and proper person to hold a licence under s 52(1)(c) of the SRA Act.
The questions for determination by the Tribunal
The real issue in this application is whether the offences and the 'aggregate' fine of $1,000 imposed by the Melbourne Magistrates' Court on 20 January 2022 engages the exception in reg 25(3).
To resolve this issue the Tribunal is required to answer the following questions:
(1)Are the offences possession of prescription drug and possession of GHB 'disqualifying' offences under Sch 2 Div 2 (Pt 5A)?: reg 24;
(2)Were these offences committed during the same Div 2 incident?: reg 25(3)(b);
(3)Is this Div 2 incident the first Div 2 incident involving the applicant: reg 25(3)(a)?; and
(4)Is the penalty imposed for the two offences 'a penalty of, or in total of, less than $500 … imposed on the [applicant] in respect of the offence and all other offences described in Sch 2 Div 2 arising from the same incident'?: reg 25(3)(b).
If each of these questions is answered in the affirmative then the applicant is not a 'prohibited person' and he is not prevented by s 52(1)(ca) of the SRA Act from being issued with the security licences for which he has applied. If that is the case the Tribunal must then consider whether it will substitute its own decision for the decision of the licencing officer, or, if it will send the matter back to the Commissioner for reconsideration.
However, if one or more of the questions is answered in the negative then the applicant is a 'prohibited person' and under s 52(1)(ca) of the SRA Act the Tribunal must not issue him with a security licence, that is, it must affirm the decision of the licencing officer.
Before considering these questions, it is necessary to set out in some detail the offences for which the applicant was dealt with by the Melbourne Magistrates' Court on 20 January 2022.
The offences
The material facts read to the sentencing court on 20 January 2021, in summary, are that:
(1)at 2.35 pm on 8 November 2020 the applicant was driving a Mazda 2 sedan (the vehicle) on a road in Kingsville, Melbourne. At that time the vehicle was observed by a member of the public to be stationary and straddling the middle lane at a traffic controlled intersection which showed a green light. After some time stationary at the green light the vehicle drove off at speed;
(2)the vehicle then began to swerve back and forth into oncoming lanes of traffic and narrowly missed colliding with several vehicles but then collided with the rear of a motorcycle causing minor injuries to the rider;
(3)after this collision the vehicle veered onto a median strip where it came to a stop when it collided with a tree;
(4)at 2.45 pm police officers attended the scene and spoke to the applicant, who confirmed he was the driver of the vehicle. The applicant produced his driving licence to the officers and stated his name but could not state his address;
(5)the applicant appeared to the officers to be drowsy, to have blood-shot eyes, to be sweating heavily and to be confused. As a consequence, the officers suspected the applicant to be under the influence of a drug of dependency and he was informed that the officers would search him;
(6)on being informed he would be searched the applicant became agitated and produced one tablet of Clonazepam. A search of the vehicle by the officers found one bag containing 10 milligrams of a clear liquid later known to be GHB and a glass smoking implement;
(7)the applicant was taken by the officers to a hospital where a sample of his blood was taken. Later analysis of this blood sample showed it contained methamphetamine and GHB; and
(8)on 3 June 2021 the applicant was charged with the above offences.
At his court appearance on 20 January 2022 the applicant accepted the material facts as read by the prosecutor and he entered pleas of guilty to the offences. The presiding magistrate then found the charges proven. Her Honour referred to materials before the court which show the applicant had engaged with counselling, he was completing a master's degree and that he has the support of his family.
The applicant told Her Honour that earlier in January 2022 he had completed a security guard training course and had applied for a security officer licence, but that his application was suspended until the outcome of the court proceedings is known.
The prosecutor made no submissions to the court.
When sentencing the applicant Her Honour stated she was 'not inclined to convict' the applicant, and then told him:
(1)that his driving took a real risk with his own life and with the life of others; and
(2)there is a need to punish this behaviour.
Her Honour then fined the applicant $1,000, without conviction, and cancelled his driving licence for four years. The Clonazepam tablet and the container of GHB were forfeited.
Under s 51(2)(b) of the Sentencing Act 1991 (Vic) Her Honour was not required to announce the sentences that would have been imposed for each offence had separate sentences been imposed, and she did not do so.
Her Honour did not separately address the drugs found in the possession of the applicant; however, the court records show the applicant was fined an 'aggregate of $1,000' for all of the three offences.[3]
Are the offences possess prescription drug and possess GHB 'disqualifying' offences under Sch 2 Div 2?
[3] HB, page 27.
Under reg 24(b) the offence of possess a prescription drug contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) would have constituted an offence under s 14(4) of the Medicines and Poisons Act 2014 (WA) (MP Act), which makes it an offence to possess a Schedule 4 drug without a prescription. Clonazepam is a Schedule 4 drug.
Under Sch 2 of the Regulations any offence under the MP Act is a Div 2 disqualifying offence.
Under reg 24(b) the offence of possess GHB contrary to s 73(1)(b) of the DPCS Act (Vic) would have constituted a simple offence under s 6(2) of the Misuse of Drugs Act 1981 (WA) (MD Act).
Under Sch 2 of the Regulations a simple offence under the MD Act is a Div 2 disqualifying offence.
For these reasons, the Tribunal finds the offences of possess prescription drug and possess GHB for which the applicant was found guilty by the Melbourne Magistrates' Court on 20 January 2022 are each a disqualifying offence under Sch 2 Div 2 of the Regulations. However, the Tribunal finds the offence of drive under the influence of drug is not a disqualifying offence as it is neither an offence under Sch 2 Div 1 nor is it an offence under Sch 2 Div 2.
Were these offences committed during the same Div 2 incident?
The material facts show the applicant committed the offences during a ten minute period commencing at 2.35 pm on 8 November 2020.
The Tribunal is satisfied that the applicant's conduct during the ten minute period on 8 November 2020 is a single uninterrupted course of conduct, and that all the offences were committed by the applicant during this course of conduct, that is, the offences were committed during the same course of conduct and hence within the same Div 2 incident within the meaning of reg 25(1).
Is this Div 2 incident the first Div 2 incident involving the applicant?
The National Conviction History provided to the Tribunal by the respondent show that the offences are the first and only adult offences committed by the applicant.
The Tribunal therefore finds that this is the first Div 2 incident involving the applicant within the meaning of reg 25(3)(b).
Is the penalty imposed for the two offences 'a penalty of, or in total of, less than $500 …'
When considering this question the Tribunal firstly considered whether it is permissible for it to engage in the task of disaggregating the aggregate fine imposed on the applicant.
The Tribunal agrees with the respondent's submission that this task is 'problematic'. As the Tribunal observed when it ordered the parties to file written submissions on this topic, it appears that no superior court in Australia has expressly considered whether a Tribunal should engage in such a task.
A decision of the Victorian Civil and Administrative Tribunal suggested that it may be appropriate to disaggregate an aggregate fine, but disapproved of doing so by using the method of simply dividing the aggregate fine by the number of offences for which the fine was imposed: Excell Protective Group Pty Ltd v Victoria Police (Review and Regulation) [2017] VCAT 88 at [115].
The Tribunal has found support for the position that it is proper for it to engage in the task by noting that:
(1)the objectives set out in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) charge the Tribunal with the task of making or reviewing a decision 'fairly and according to the substantial merits of the case';
(2)the nature of review proceedings set out s 27(2) of the SAT Act, which state that the 'purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review'; and
(3)s 54(3) of the Sentencing Act 1995 (WA) which envisages that an appeals court may need to engage in the task of disaggregating a fine.
For these reasons the Tribunal finds it is fair and in accordance with the substantial merits of this case to engage in the task of attempting to disaggregate the fine imposed by the learned magistrate. The Tribunal also finds that its attempt to disaggregate the fine should be carried out objectively and that in this case this is to be done by taking note of Her Honour's sentencing remarks and the agreed statement of material facts.
The Tribunal secondly considered how it is to engage in the task of disaggregating the fine imposed on the applicant by the Melbourne Magistrates' Court on 20 January 2022. The Tribunal agrees with the respondent that if it found that the sum apportioned for the offence of drive under the influence of drug 'exceeds 50% of the aggregate fine', then the applicant would not be a prohibited person under the SRA Act. This is because the fines imposed by Her Honour for the remaining two offences must then together total less than 50% of the aggregate fine, which would be a sum in total of less than $500.
The Tribunal has therefore considered whether it is possible to find on the balance of probabilities that Her Honour would, if she had imposed separate fines for each of the offences, have imposed a fine of more than $500 for the offence of drive under the influence of drug.
The Federal Court of Australia has said that '[t]he aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given'. Pearson v Minister for Home Affairs [2022] FCAFC 203 at [45].
In this case, the Tribunal is able to assess the seriousness of each of the offences and so it is able to find on the balance of probabilities that the sum apportioned for the offence of drive under the influence of drug did exceed 50% of the aggregate fine. This is because:
(1)the seriousness of an offence is to be determined by considering such factors as the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and any aggravating factors and any mitigating factors: s 6(1) Sentencing Act 1995 (WA);
(2)the manner of the applicant's driving is clearly by far the most serious of the three offences. By overtaking other vehicles at speed when impaired by methamphetamine and GHB the applicant placed the lives and health of other road users at risk. The seriousness of the applicant's manner of driving is only emphasised by the fact that he collided with a motorcyclist and that he only stopped driving when he collided with a tree; and
(3)the offence of possess a prescription drug is close to being at the lowest possible range of seriousness of this type of offence, as it involved the possession of one tablet of a prescribed medication.
Therefore, even accepting the offence of possess GHB is not at the lowest possible range of seriousness for this offence, neither it nor the offence of possess a prescription drug are of comparable seriousness to the applicant's driving behaviour. In fact, so less serious were each of the two drug offences in comparison to the applicant's manner of driving and the risk he posed to other road users that Her Honour did not even refer to them when sentencing the applicant.
For these reasons, the Tribunal finds on the balance of probabilities that if Her Honour had announced the penalty for the part of the aggregate fine imposed for the offence of drive under the influence of drug it would have been announced as a fine which is greater than 50% of the aggregate fine. This is the case even though the Tribunal is not able to precisely state the percentage of the aggregate fine which Her Honour would have imposed for that offence.
The consequence then is that the Tribunal finds on the balance of probabilities that the total fine which was imposed for the other two offences therefore must be less than 50% of the aggregate fine, that is, the fine imposed for these two offences is in total a sum of less than $500.
Conclusion
As each of the questions set out above is answered in the affirmative the Tribunal finds that the correct and preferable decision at the time of the review is that applicant is not a 'prohibited person' and so is not prevented by s 52(1)(ca) of the SRA Act from being issued with the security licences for which he has applied.
As discussed above, the Tribunal has decided that it does not have before it sufficient information to determine whether the applicant should be granted the security licences for which he has applied. In particular, the Tribunal does not have sufficient information before it to determine whether the applicant satisfies the requirement under s 52(1)(g) of the SRA Act to have satisfactorily completed any prescribed training program or to have passed any prescribed test or examination with respect to the security licences for which he has applied.
Consequently, the Tribunal has decided it will send the matter back to the licencing officer for reconsideration.
Orders
The Tribunal orders:
1.The decision of the respondent made on 10 June 2024 to refuse to issue the applicant with Security Officer, Security Monitoring Officer and Crowd Controller Licences is set aside and the matter is referred to the respondent for reconsideration.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR E Cade, MEMBER
13 JANUARY 2025
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