Stranges v Commissioner of Police, NSW Police Service

[2004] NSWADT 221

CITATION:	Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221
DIVISION:	General Division
PARTIES:	APPLICANT Ottavio Stranges RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	043215
HEARING DATES:	09/09/2004
SUBMISSIONS CLOSED:	09/09/2004
DATE OF DECISION:	10/05/2004
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Criminal Proceedings) Act 1987 Community Service Orders Act 1979 Crimes (Sentencing Procedure) Act 1999 Criminal Records Act 1991 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Pearce v Commissioner of Police, New South Wales Police service [2000] NSWADT 99; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
REPRESENTATION:	APPLICANT R Williams, solicitor RESPONDENT P McLaughlin, solicitor
ORDERS:	The decision of the Commissioner refusing Mr Stranges’ application for a Class 1ABC licence is affirmed

Introduction

1 Mr Stranges is a 26 year old man who has been training to be a security guard. His current employer has offered him full time employment if he obtains a security licence. The Commissioner refused his application for a security licence on the ground that the Children’s Court convicted him of “obtaining a benefit by deception” in 1996. At that time he was 17 years old. The offence related to the use of a stolen cab charge docket to pay for a $29.10 taxi ride. According to the Commissioner, the refusal to issue the licence was mandatory because of Mr Stranges’ conviction for that offence. Mr McLaughlin, representing the Commissioner, conceded at the hearing that the refusal of the licence on that ground was incorrect.

2 Unfortunately, the cab charge docket offence is not the only offence for which Mr Stranges has been convicted. On 14 January 1999, when he was 21 years old, he was convicted of malicious wounding and sentenced to 300 hours of community service. At the hearing, Mr McLaughlin relied on the ground that Mr Stranges was not a fit and proper person to have a security licence mainly because of the conviction for malicious wounding. That was not a ground that the Commissioner had relied on in his original decision.

3 The Commissioner can refuse a licence either on mandatory grounds, such as conviction for various offences, or on discretionary grounds, such as fitness. The Tribunal’s role is to determine whether the Commissioner’s decision is the “correct and preferable” decision. (See s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Issues

4 The following issues arise:

· was the Commissioner’s decision to refuse the application because of Mr Stranges’ conviction for the cab charge docket offence correct?

· if not, can the Commissioner rely on a ground for refusing the application that was not relied on in the original decision?

· if not, is the correct decision to refuse the application on the ground that Mr Stranges is not a fit and proper person to hold a licence?

Was the Commissioner’s decision to refuse the application because of the cab charge docket offence correct?

5 When a person is convicted of an offence involving “fraud dishonesty or stealing” where the maximum penalty is imprisonment for 3 months or more, the Commissioner must refuse any application by that person for a licence made within 10 years of the conviction. If the person is found guilty of such an offence, but not convicted, the disqualification period is 5 years. (Security Industry Act 1987 s 16 and Security Industry Regulation 1998 Cl 11(d)). The Commissioner’s decision to refuse Mr Stranges’ application was based on an assumption that Mr Stranges was convicted of the cab charge docket offence, rather than being found guilty with no conviction recorded. If that had been the case, Mr Stranges would have been unable to obtain a licence until 2006. Mr McLaughlin withdrew that ground at the hearing as he was under the impression that the Court had merely found Mr Stranges guilty. In that case, the Commissioner could not have refused his application for a licence on mandatory grounds after 2001.

6 The Magistrate did not tick either the “convicted” or the “without conviction” box on the court papers. Unless the Magistrate makes a decision not to convict, the assumption is that a defendant has been convicted. In that case, the Commissioner would normally be prevented from giving Mr Stranges a licence for 10 years, that is until 2006. The reason I have decided that the Commissioner should not have refused Mr Stranges’ application is that the cab charge docket offence is a “spent” or expired conviction. (See Criminal Records Act 1991.)

7 A reference to a conviction in an Act or Regulation, such as the Security Industry Act 1997 and the Security Industry Regulation 1998, is a reference only to convictions which are not “spent”. (See Criminal Records Act 1991 s 12.) Mr Stranges’ conviction for the cab charge docket offence comes within the definition of a spent conviction” because the Magistrate gave him a caution and released him on probation for 5 months. (Criminal Records Act 1991 s 5 and Children (Criminal Proceedings) Act 1987 s 33(1)(a) and (e).) A finding that a person is guilty of an offence, and the releasing of the offender on probation, is “spent” on satisfactory completion of the probation period. (Criminal Records Act 1991 s 8(4).) Mr Stranges’ conviction was “spent” when he completed the five-month probation period.

8 The Commissioner cannot take into account any spent conviction to refuse a person’s application for a security industry licence, either on mandatory grounds or on fitness grounds. It follows from this conclusion that I disagree with the Tribunal’s previous decision in Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99. In my view there is no conflict between the provisions of the Security Industry Act 1997 and s 12 of the Criminal Records Act 1991.

Can the Commissioner rely on a ground for refusing the application that was not relied on in the original decision?

9 Given that the Commissioner’s decision to refuse the application on mandatory grounds was incorrect, the next question is whether the Commissioner can rely on a different reason for refusing the application. Mr McLaughlin did not raise the “fitness” ground until the hearing. Mr Williams, representing Mr Stranges, objected to the Commissioner changing the basis for his decision at that stage.

10 The Tribunal has the power to review a decision of the Commissioner to refuse to grant a licence. (Security Industry Act 1987 s 29) The Tribunal is to determine what the “correct and preferable” decision is having regard to the material then before it, any relevant factual material and any applicable law. (ADT Act s 63) The Tribunal “stands in the shoes” of the Commissioner and makes a new decision. The decision the Tribunal is reviewing is the decision to refuse to grant a licence, not the grounds for that decision. Consequently, the Commissioner may change the grounds for his decision, but not the decision itself, subject to the applicant being afforded procedural fairness. In this case I asked Mr Williams, representing Mr Stranges, whether he wanted an adjournment or whether he wanted to proceed with the matter. He indicated that his client could not afford the further legal costs involved if the matter was adjourned and chose to continue with the hearing.

Whether Mr Stranges is a fit and proper person to have a security licence?

11 Mr Stranges’ position. Mr Stranges argued that he was a fit and proper person to have a security licence because the malicious wounding offence occurred 5 ½ years ago when he was 20 years old. He is now 26 and has a partner and a young child. He has not been convicted of any further offences, apart from traffic offences, since that time. Mr Stranges also provided references from two of his employers attesting to his character. He was employed by the first employer as a trainee security officer for about a year on a permanent part time basis. His current employer, for whom he has worked as a trainee for about six months, has offered him a full time job if he obtains his licence. His employers describe him as “reliable”, “trustworthy” and “conscientious”. He produced further positive references from two real estate agents with whom he had dealt.

12 The malicious wounding offence. The only evidence in relation to the malicious wounding offence was the police fact sheet. Mr Stranges pleaded guilty to this offence and it is likely that the Magistrate relied on the facts in the fact sheet. On 23 October 1998, Mr Stranges threatened the victim who was standing outside a pie shop, saying “I’ll kill you I’ll slash you up” and punched him in the face with a broken bottle. The victim had three lacerations to the side of his face, with two of the lacerations requiring stitches. Mr Stranges admitted being involved in the incident but claimed it was done in self-defence. He was convicted and given 300 hours of community service. The malicious wounding offence is not “spent” because it occurred when Mr Stranges was an adult, and he has not completed ten crime free years since that time. (Criminal Records Act 1991, s 9.)

13 No mandatory disqualification for malicious wounding. Although the Commissioner would normally be obliged to refuse an application from a person who has been convicted of “an assault of any description” within the previous 10 years, that obligation only applies if the penalty imposed was imprisonment, or a fine of $200 or both. (Security Industry Act 1987 s 16 and Security Industry Regulation 1998 Cl 11(c)). A malicious wounding is clearly an assault, but Mr Stranges was given a penalty of 300 hours of community service. He was not imprisoned or fined. A Court may make a community service order “instead of imposing a penalty of imprisonment.” (See s 8(1) of the Crimes (Sentencing Procedure) Act 1999 which commenced on 30 April 2000 and its predecessor, s 4 or the Community Service Orders Act 1979.) Since a community service order is not imprisonment or a fine, the Commissioner was not obliged to refuse Mr Stranges’ application as a result of that conviction.

14 Wrong answer on application form. A further factor reflecting adversely on Mr Stranges’ fitness is the fact that he answered “No” to a question on the application form asking whether he’d been convicted of any offence in the last 10 years. Mr Stranges’ representative said that the incorrect answer was an oversight. Having performed 300 hours of community service, Mr Stranges would know very well that he has been convicted of a criminal offence in the last 10 years. The question was clear and I do not accept that Mr Stranges’ answer was an oversight.

15 The law. The cases tell us that assessing a person’s fitness is a value judgment. Some of the factors that must be taken into account are:

· the seriousness of the conduct,

· the activities which the person will be doing if they are given a licence; and

· any facts in favour of the person receiving a licence. (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] per Mason CJ; Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 at 156-157 Dixon CJ, McTiernan and Webb JJ.)

16 Seriousness of the conduct. Mr Stranges’ conduct in punching a person in the face with a broken bottle is extremely serious. The Court did not accept his explanation that it was done in self-defence. In addition Mr Stranges has given a dishonest answer on the application form, possibly hoping that his previous convictions would not be detected.

17 Security activities and factors in his favour. The licence that Mr Stranges applied for would allow him to patrol, guard, watch or protect property and to act as a bodyguard and as a crowd controller or bouncer. The conviction for malicious wounding and the circumstances of that offence indicate that Mr Stranges is not a suitable person to be a security guard. The false answer on the application form is further evidence of his unsuitability.

Conclusion

18 The Commissioner’s decision to refuse Mr Stranges’ application was the correct decision even though the original ground for that decision was not right. The malicious wounding offence and Mr Stranges’ dishonesty when filling out the application form are serious matters which relate directly to his suitability to have a security licence. Despite the fact that his employers have a high opinion of him and it is now more than 5 years since the conviction, I am not satisfied that he is a fit and proper person to hold such a licence.

Order

The decision of the Commissioner refusing Mr Stranges’ application for a Class 1ABC licence is affirmed.