Saheb and Commissioner Of Police
[2009] WASAT 83
•30 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: SAHEB and COMMISSIONER OF POLICE [2009] WASAT 83
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 21 APRIL 2009
DELIVERED : 30 APRIL 2009
FILE NO/S: VR 24 of 2009
BETWEEN: ALI SAHEB
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Security officer - Crowd controller - Character - Fit and proper - Previous offence - Assault occasioning bodily harm - Spent conviction - Does a single incident reflect sufficiently on a person's character to justify a refusal of a licence?
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 72(1)
Result:
The application is dismissed
The decision of the Commissioner of Police to refuse to issue the licences is affirmed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
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 Saheb 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 Saheb's criminal conviction of assault occasioning bodily harm and his failure to declare all his offences to the Commissioner in his application to be licensed, he ought not to be licensed. Mr Saheb had one criminal conviction of assault occasioning bodily harm but he failed to declare it when he applied for the licenses. The incident occurred on 1 December 2008 and he was convicted on 29 December 2008. The nature of the offence was an assault in his unit on a prostitute after he had a disagreement with her.
Mr Saheb contended that this was a single, isolated incident and that he has no other criminal convictions. He explained that he failed to declare the conviction to the Commissioner because it was a spent conviction and he mistakenly thought it need not be declared. He also relied on several letters of reference which were supportive of his good character.
The Tribunal found that on balance it was not satisfied that Mr Saheb met the statutory requirements to be licensed as a security officer or crown controller. Although he had an otherwise clean record and produced several character references, the assault occasioning bodily harm against a defenceless prostitute in the privacy of his home and his failure to declare the conviction to the Commissioner when he applied for the licenses, cast a shadow over his character. For a person to be licensed as a security officer and crowd controller a high degree of trust, integrity and respect for the law is required. Such a person must in particular be trustworthy when dealing with females who may be in vulnerable situations. The way in which Mr Saheb treated the female, although it was a single incident, reflects negatively on his character and the public interests demand that he not be licensed at this stage.
The Tribunal noted that Mr Saheb may again in future apply to be licensed.
The decision of the Commissioner of Police not to issue the licences was affirmed.
Issue
The issue in dispute is whether the decision by the Commissioner of Police (Commissioner) to refuse to issue a crowd control and a security officer licence to Mr Saheb should be set aside.
Background
This is an application under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (Act) whereby Mr Saheb seeks review of the decision by the 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 licence unless it is satisfied that Mr Saheb 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
…
(c)that the applicant is of good character and is a fit and proper person to hold a licence; (emphasis added)
Submissions by the parties
The Commissioner refused the application on the following grounds:
•Mr Saheb was convicted on 29 December 2008 for assault occasioning bodily harm after he assaulted a prostitute in his apartment after she refused to provide certain services.
•Mr Saheb acted dishonestly when he failed to declare on his application form for the licences that he had a criminal record. Although the conviction was 'spent', the application form requires from applicants to declare spent convictions.
•The character references provided must be read in light of the fact that the persons were not aware of the conviction that had been recorded or the failure to disclose the conviction to the Commissioner.
•The public interest demands that a person who has been convicted of such a serious office ought not to be licensed until a substantial period of time has lapsed.
Mr Saheb contends as follows:
•The assault was a single, isolated incident;
•He has no other criminal convictions in Australia;
•The conviction was spent which puts it in the lower order of serious offences;
•He did not know he had to declare the conviction to the Commissioner and did not read the application form so carefully to notice the requirement;
•He did not intend to mislead the Commissioner or to give false information;
•He has undergone anger management and is not taking any medication since he has recovered so well; and
•His character references are consistent in describing him as an honest person, with good work ethics, a loyal citizen and trustworthy.
He concludes that the Commissioner erred by finding that the single incident, serious as it may be, was a reflection on his character.
Consideration
The Tribunal is faced on the one hand with Mr Saheb's request to be licensed on grounds that he contends a single incident cannot constitute such a reflection on his character that he should be refused a licence and on the other hand the Commissioner who contends the public interest requires that Mr Saheb should not be licensed at this stage due to the seriousness of the offence he committed.
The Commissioner accepts that as a general rule Mr Saheb may again in future apply to be licensed and that, if he keeps his record clean, may be successful. The Commissioner, for now, is not satisfied that sufficient time has lapsed between the offence and the application.
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) of the Act 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. In [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) of the Act. 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 Saheb would be required to discharge, the circumstances in which the duties may be discharged, the criminal record of Mr Saheb, the circumstances in which the offence was committed, the nature of the offence, the personal circumstance of Mr Saheb and information regarding his character, the time that has lapsed since the conviction, 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 Saheb.
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. It is especially females who may be in vulnerable positions visàvis crowd controllers, since it is know that many females who are affected by alcohol and/or drugs become the subject of criminal acts. The fact that Mr Saheb abused and assaulted a prostitute in the privacy of his home where she was particularly vulnerable, is an important factor weighing in the mind of the Tribunal against him being licensed.
Both the professions of security officer and crowd controller require a high degree of moral rectitude, trust, reliability, honesty and most importantly, a respect for the law.
The Act determines that the licensing officer 'is not' to issue a licence unless the officer is satisfied that Mr Saheb 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 notes Mr Saheb's evidence that this was an isolated incident, but the Tribunal is also concerned that he may not be entirely remorseful for what had happened. The fact that he defends his actions by saying the lady was taller than him, that she is the one who started hitting him and that it was all due to a disagreement about services, creates the impression that he fails to understand fully the gravity of what he did.
The Tribunal notes the character references and those are indeed very complementary to Mr Saheb. At the same time, it appears however, that the authors were not aware of his conviction or of his failure to declare the conviction to the Commissioner. The medical practitioner further mentions the treatment Mr Saheb requires to control his anger. The Tribunal accepts therefore that for general purposes of employment applications the character references are positive, but for purposes of licensing under the Act the Tribunal places emphasis on the conviction and the reflection that casts on Mr Saheb's character.
On balance, the Tribunal is not satisfied that sufficient time has lapsed since the offence was committed and the application to be licensed as a security officer or crowd controller. The Tribunal is not satisfied that Mr Saheb is showing real remorse and a deeprooted commitment to comply with the norms placed on crowd controllers and security officers. The Tribunal accepts that he is in a process of sorting his life out, but we must also take into account the seriousness of the offence, and that as a security officer and crowd controller a high degree of trust and integrity is required as well as respect for the physical integrity of members of the public.
Finding
Following from the evidence presented, the Tribunal is not satisfied that Mr Saheb 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 Commissioner of Police not to issue a crowd controller licence or a security officer licence to Mr Saheb is affirmed.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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