Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 (11 January 2000)

Last Updated: 25 January 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Botros -v- Commissioner of Police, NSW Police Service [2000] NSWADT 6

PARTIES: APPLICANT

Baher Elamir Alphonse Botros

RESPONDENT

Commissioner of Police, NSW Police Service

FILE NUMBERS: 993175

HEARING DATES: 28/10/1999

SUBMISSIONS CLOSED: 28/10/1999

DECISION DATE: 11/01/2000

BEFORE: Skinner PM - Judicial Member

LEGISLATION CITED: Security Industry Act 1997

CASES CITED:

APPLICATION: Review of decision to revoke security industry licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

H Christofides, Joseph G Capogreco & Associates, Solicitors

RESPONDENT REPRESENTATIVE: RESPONDENT

A Spajic, solicitor, Legal Services, NSW Police Service

ORDERS: 1. The decision of the Commissioner of Police, NSW Policec Service, to revoke the applicant's security licence is affirmed.

Reasons for Decision:

Application

1 This is an application by Mr Botros for review by this Tribunal of a decision by the Commissioner of Police, NSW Police Service to revoke his licence under the Security Industry Act 1997 (`the Act').

2 On 4 March 1999 the applicant was issued with a Class 1A, 1B and 1C licence under the Act, for a term of five years.

3 On 23 June 1999 the applicant was served with a Notification of Revocation of Licence containing reasons. The respondent relied on the conviction on 4 May 1995 of the applicant in Kogarah Local Court of larceny as a servant.

4 On 25 June 1999 by a letter from his solicitors the applicant sought internal review by the Police Service of the decision to revoke his licence.

5 By a letter dated 2 July 1999 the applicant was advised by the respondent that the decision was affirmed.

6 The applicant applied to this Tribunal on 30 July 1999.

Relevant facts

7 The circumstances of the offence for which the applicant was convicted were not in dispute, nor that it is `an offence prescribed by the regulations' within the meaning of s 16(1)(a) of the Act.

8 The applicant had pleaded guilty in the Local Court on 4 May 1999 and the police Facts Sheet tendered at that time was in evidence before me as an annexure to the respondent's Amended Statement of Reasons filed 26 August 1999.

9 Whilst employed as a security guard at St Georges Leagues Club the applicant was guarding cash takings from the poker machines. He stole a sum of $3,470 from those takings, being caught in the act by what would seem to have been a police surveillance team.

10 Upon his conviction, the Local Court deferred passing sentence under s 558 of the Crimes Act 1900, on condition that the appellant enter into a good behaviour bond.

11 The matter came to the attention of that branch of the Police Service that administers the Act and the decision was made to revoke the applicant's security licence under s 26(1)(a) of the Act.

12 The applicant gave sworn evidence before me and was cross-examined by counsel for the respondent. He expressed remorse and contrition and his solicitor tendered several testimonials as to his character.

Applicable law

13 S 26(1) and (2) of the Act is in the following terms:

`26 Revocation of licence

(1) A licence may be revoked:

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

(b) if the licensee:

(i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(d) for any other reason prescribed by the regulations.

(2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.'

14 Clause 18 of the Security Industry Regulation 1998 is in the following terms:

`18 Revocation of licence - additional reasons

In accordance with section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.'

15 As noted above, the offence for which the applicant was convicted came within s 16(1)(a) of the Act. Consequently s 26(1)(a) of the Act is clearly enlivened.

16 Also, s 26(1)(c) of the Act is clearly relevant to this case, given the nature of the conviction. Evidence has been adduced and the parties have made submissions as to whether the applicant is a fit and proper person.

17 Finally, the respondent has relied on s 26(1)(d) and evidence has been adduced and the parties have made submissions as to `public interest'.

Decision

18 In my opinion, the respondent clearly has a discretion under s 26(1) of the Act as to whether to revoke a licence. Any argument that revocation is mandatory where s 26(1)(a) of the Act applies cannot be accepted. The words of the legislation granting a discretion are clear.

19 To that extent I accept the submissions of the applicant, although I do not believe that Mr Spajic for the respondent was really pressing a strict `mandatory' interpretation. As I understand the submissions of the respondent, and the reasons for the original decision to revoke and for the rejection of the internal review, which were also pressed afresh by the respondent, it was submitted that in effect the respondent acting in accordance with the purpose of the Act had no option but to revoke the applicant's licence in the circumstances of his conviction.

20 In my opinion, under s 63 of the ADT Act, I have a clear discretion to revoke or decline to revoke the applicant's licence under the Act.

21 I exercise that discretion against the applicant.

22 In this case if the applicant had committed the offence before applying for the licence granted on 4 March 1999, he would not have been granted that licence. The legislature has seen fit to ensure that that result would have been mandatory, and is mandatory for ten years from the date of the conviction.

23 It would be anomalous if despite the committing of a prescribed offence barely five weeks after the grant of the licence, the applicant were to retain his five year licence.

24 Conceivably some circumstances could justify such an anomaly. That is no doubt why the legislature in its wisdom has used the language of discretion in s 26(1) of the Act.

25 The circumstances of this case do not in my opinion justify a decision not to revoke the licence. Rather, in my opinion they compel a revocation.

26 In my opinion, the conviction of the applicant does establish that he is not a fit and proper person to hold the licence - see s 26(1)(c) of the Act.

27 Further, in my opinion it establishes that it is not in the public interest that he continue to hold the licence - see s 26(1)(d) of the Act and clause 18 of the Security Industry Regulation 1998.

28 I cannot conceive of an offence more directly going to establish a breach of the standards that the legislature, and through it the community, expects licence holders to meet in this regulated industry.

29 One of the fundamental reasons for the regulation of the security guard industry is to ensure some screening of security guards for standards of honesty where they will be entrusted with the safekeeping of large amounts of cash. The applicant acted dishonestly whilst in a position of trust in carrying out the very duties for which he was licenced.

30 The evidence of remorse and contrition and the solid testimonials tendered on behalf of the applicant do not assist him. This Tribunal is not sentencing him for the offence nor imposing some additional punishment. This Tribunal is to decide the correct and preferable decision that should be made as to whether the applicant should hold a licence under the Act.

31 The decision of the respondent is affirmed.