Court v Commissioner of Police, New South Wales Police Service [2000] NSWADT 169 (22 November 2000)

Last Updated: 12 December 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Court -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 169

PARTIES: APPLICANT

Shane Court

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003287

HEARING DATES: 16/11/2000

SUBMISSIONS CLOSED: 16/11/2000

DECISION DATE: 22/11/2000

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Security Industry Act 1997

CASES CITED: Botros v Commissioner of Police [2000] NSWADT 6

Price v Commissioner of Police [2000] NSW ADT 127

APPLICATION: Review of decision to revoke security industry licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

T McGill, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tunks, solicitor

ORDERS: The decision to revoke the applicant's Class 1 security industry licence is set aside.

Reasons for Decision:

Introduction

1 Mr Court has had a security industry licence for about 10 years. A Class 1A licence was re-issued on 29 September 1998 for 5 years. At the beginning of March 1999 Mr Court went to the Dapto Markets and purchased a car radio and a hydraulic jack for $150.00. After he took the radio to his local garage to have it fitted, he was contacted by police and charged with "goods in custody." The Local Court in Wollongong found the charge proved and proceeded under s 556A of the Crimes Act 1900. Mr Court was given a recognisance in the sum of $500 to be of good behaviour for 12 months. He appealed to the District Court against this decision. The appeal was an "all grounds" appeal where the judge decides the matter again on the basis of the transcript in the Local Court. The District Court found Mr Court guilty of the offence but directed that the charge be dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.

2 On 31 August 1999 Mr Court was served with a Notification of Revocation of Licence of his Masters licence and his Class 1A security licence. Mr Court applied to the Tribunal on 21 August 2000 for a review of the decision to revoke his Class 1A security licence.

3 In the Statement of Reasons provided to Mr Court on 27 September 2000, the Commissioner relied on three grounds for revoking his licence. In summary these grounds were that:

· pursuant to s 26(1)(c) of the Security Industry Act 1997 (the Act), the Commissioner is of the opinion that Mr Court is no longer a fit and proper person to hold a licence;

· pursuant to Cl 18 of the Security Industry Regulation 1998, (the Regulations) the Commissioner considers that it is not in the public interest for Mr Court to hold a licence;

· pursuant to s 26(1)(a) of the Act the Commissioner may revoke a licence for any reason for which the licensee would be required to be refused a licence of that class.

4 At the hearing of this matter, Mr Tunks indicated that he would not be relying on the first two grounds listed above.

Legislation

5 Under section 26(1) of the Act:

A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of that class.

6 Under s 16(1)(b) of the Act, the Commissioner must refuse to grant an application for a licence if he is satisfied that the applicant:

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.

7 Both parties agreed and I find, that Mr Court has been convicted of such an offence, namely the offence prescribed by Cl 11(d) of the Regulations:

An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.

Issue

8 The issue to be decided in this case is whether, despite the fact that Mr Court has been convicted of a prescribed offence which would prevent him from being granted a licence if he was applying for one, the Tribunal should nevertheless set aside the Commissioner's decision to revoke the licence.

Evidence

9 The documentary evidence consisted of:

· the Facts Sheet prepared by Senior Constable Silvestre Belo on 5 May 1999;

· the Notifications of Revocation of Licence in relation to the Class Master licence and the Class 1A licence dated 31 August 1999;

· letter from T McGill, barrister dated 9 August 2000 requesting internal review of the decision to revoke the Class 1A licence;

· letter to T McGill from P Houlton dated 27 September 2000 and attaching Statement of Reasons; and

· character references from Phillip Groves dated 29 June 2000, Gerry Husson (undated) and David Green dated 9 October 2000.

10 The only oral evidence was that of Mr Court. He said that he has been a licensed security officer since August 1991. He worked for a company which was subsequently taken over by Security Network. Since 1996 he has been a sub-contractor for Security Network. His wife has a Masters Licence and the family business employs four permanent and one casual staff member.

11 On 17 February 1999 certain business premises were broken into and a large quantity of car stereo systems was stolen including a pioneer radio cassette player. These premises are patrolled by Mr Court, although he was not present at the time of the break in. He was called after the break in and attended the premises to try to secure them.

12 While the precise dates were not in evidence, Mr Court had his car stolen sometime prior to the break in at the business premises. About three weeks after the break in, in early March 1999, he went to the Dapto Markets with his wife. He says he bought a car radio/cassette player and a hydraulic jack at the markets for $150.00. He did not receive a receipt or make any inquiries about ownership of the radio. He said in evidence that he should have taken more details, such as taking the address of the person selling the radio to him.

13 Mr Court said he knows that stolen goods are sold at markets of this type but he did not think at the time that the radio could have been stolen. He said it is always a gamble because there is no warranty and the goods may not work but he accepted that risk.

Reasoning and Decision

14 Mr Tunks on behalf of the Commissioner accepted that the evidence suggests that Mr Court is of good character. He has no relevant prior convictions and has several character references from people who have worked with him over a number of years. Mr Tunks also accepted, and I agree, that Mr Court gave full and frank evidence to the Tribunal.

15 Mr Tunks brought the Tribunal's attention to two cases of revocation of licence where the Tribunal affirmed the Commissioner's decision. Both these cases recognised that the Commissioner has a discretion to revoke a licence where a prescribed offence is involved. The offence involved in Botros v Commissioner of Police [2000] NSWADT 6, was a much more serious one than the offence in this case. In Botros, the applicant had been convicted of larceny as a servant. He stole in excess of $3,000 from poker machine takings. The offence occurred in the course of the applicant's employment as a security guard. In Price v Commissioner of Police [2000] NSW ADT 127, the facts were similar in some respects to those in the present case. The applicant had obtained a tachometer at a `swap' meeting and had been convicted of "goods in custody" under s 527 of the Crimes Act 1900. However, the important point of distinction between Price's case and the present case is that when Mr Price subsequently applied for a security industry licence he failed to disclose this conviction. Had he done so a licence would not have been granted because the offence is a prescribed offence for which refusal of an application for a licence is mandatory. The Tribunal in Prices' case found that the Commissioner had made the correct decision in revoking the licence because of the applicant's dishonesty in not revealing a conviction which would have prevented him from being granted a licence in the first place.

16 The factors that the Tribunal should take into account in this case include the nature and seriousness of the offence, Mr Court's character including any other criminal record and his record as a security officer for over 10 years.

17 The offence of "goods in custody" under s 527C of the Crimes Act 1900 was proved against Mr Court. That section states that: Any person who:

(a) has any thing in his or her custody;

(b) has any thing in the custody of another person;

(c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another; or

(d) gives custody or any thing to a person who is not lawfully entitled to possession of the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a Local Court constituted by a Magistrate sitting alone to imprisonment for 6 months, or to a fine of 5 penalty units.

(2) It is a sufficient defence to a prosecution for an offence under subsection(1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

18 The District Court found Mr Court guilty of the matter but dismissed the charges. The facts given in evidence by Mr Court, demonstrate that this offence was an extremely minor one on the scale of criminal offences. Mr Court was not as careful as he should have been when he purchased the car radio and the hydraulic jack, but his carelessness does not reflect unfavourably on his character or on his ability to carry out the functions of a security guard.

19 Mr Court has no relevant criminal record and has operated successfully in the security industry for some ten years. In my view, the correct and preferable decision would have been not to revoke Mr Court's licence.

Orders

The decision to revoke the applicant's Class 1A security industry licence is set aside.