Testoni v Commissioner of Police, New South Wales Police Service [2003] NSWADT 29 (17 February 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Testoni -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 29

PARTIES: APPLICANT

John Anthony Testoni

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 013296

HEARING DATES: 08/03/2002, 26/04/2002

SUBMISSIONS CLOSED: 16/08/2002

DECISION DATE: 17/02/2003

BEFORE: Lees M - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes Act 1900

Security Industry Act 1997

Security Industry Regulation 1998

Crimes (Sentencing Procedure) Act 1999

CASES CITED: Bourke & Ors v The New South Wales Commissioner of Police [1998] NSWADT 1

Hargreaves v Commissioner of Police, NSW Police Service [1999] NSWADT 64

Winika v Commissioner of Police [2001] NSW ADT 8

Maha Pese v Commissioner of Police [2001] NSW ADT 67

Sobey v Commercial Private Agent's Board [1979] 22 SASR 70 Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1953) 93 CLR 127

Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17

Sobey v Commercial Private Agents Board (1979) 22 SASR 70

Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 170 CLR 321

APPLICATION: Security Industry Act - security industry licence - revocation or suspension of licence

Security industry licence - revocation or suspension of licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

08/03/2002: C Dawes, Solicitor

26/04/2002: P Sternberg, Barrister

ORDERS: The Commissioner's decision to revoke Mr Testoni's security industry licence based first on s. 26(1)(a) and second on s. 26(1)(c) of the Security Industry Act, is set aside.

Reasons for Decision:

Background

1 This is an application by Mr Testoni (the Applicant) for review by the Administrative Decisions Tribunal (`the Tribunal') of a decision made by the New South Wales Commissioner of Police (`the Commissioner') to revoke Mr Testoni's security industry licence pursuant to the provisions of the Security Industry Act 1997 (`the Act').

2 The Applicant was served with a `Notification of Revocation of Licence' on 05.10.2001. The decision relied on sections 16 and 26 of the Act and clause 11 of the Security Industry Regulation 1998 (the Regulation). The Applicant sought internal review by the Commissioner of this decision. The internal review decision affirmed the original decision and added s.15 and clauses 10 and 14 as further bases warranting revocation.

3 The Tribunal's jurisdiction to consider the application for external review is found under s. 29 of the Act together with s. 38 of the Administrative Decisions Tribunal Act 1998 (the Tribunal Act).

4 The Applicant also applied for an urgent stay on the Commissioner's revocation decision. This was granted by the Tribunal's Deputy President Hennessy on 11.12.2001 until further determination by the Tribunal.

Legislative provisions

5 Section 15 of the Act concerns the suitability criteria of applicants for security industry licences and restricts the granting of licences in certain circumstances. Section 15(1) reads

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: ....

(c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or

(d) is not competent to carry on the security activity to which the proposed licence relates.

6 Section 16 of the Act concerns restrictions on granting licences in circumstances involving certain criminal and other related history. Section 16(1)(b) of the Act provides:

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner 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 Section 26 of the Act concerning the revocation of licences reads (as relevant):

(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: ......

(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.

.........

8 Clause 10 of the Regulation concerns a licence applicant's qualifications (see s. 15). It reads as relevant:

1. Class 1 and 2 licences

For the purposes of section 15 (1) (c) of the Act, the following qualifications are prescribed in relation to an applicant for a class 1 or 2 licence:

(a) attainment of the approved competency standards, or the approved level of accreditation, for the class of licence sought by the applicant,

(b) in the case of a class 1 licence only--completion of an approved first aid course.

9 Clause 11 of the Regulation provides for offences that disqualify applicants. It reads:

For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(a)- (c) ...

(d) Offences involving fraud, dishonesty or stealing

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.

10 Clause 14 (1) of the Regulation concerns the requirement on licensees to notify change of licence particulars; it reads:

1. In the event of a change in any of the particulars in respect of a licence (including any change of address by the licensee), it is a condition of the licence that the holder of the licence must notify the Commissioner of the change, and of the appropriate new particulars, within 14 days of the change and surrender the licence on doing so.

The Evidence

11 In addition to the completed Tribunal Application for Review form (dated 15.11.2001) the Applicant provided the following additional material to the Tribunal in support of his application:

copy of Certificate II in Security Guarding (dated 05.05.2000);

copy of Applicant's letter to Commissioner seeking internal review of decision to revoke Applicant's licence (dated 08.10.2001);

copies of two facsimile cover pages advising the Security Registry of Applicant's change of address (dated 12.11.2000 & 10.05.2000); and

Personal/Employer references from Steven Nastav (Managing Director of Cro-Link Protection Services, dated 07.02.2002, current employer of Applicant as at date of hearing - 26.04.2002); Kerry Brent (Director, Brent Howard Enterprises (Security) dated 16.03.2000); Darren Barrett, Director, Tenaxe Security Consulting P/L, undated).

12 The Applicant appeared before the Tribunal and gave oral evidence on his own behalf.

13 The Tribunal was provided with a number of documents on behalf of the Commissioner. Apart from copies of several of the Applicant's documents, these documents consisted of:

a New South Wales Police Service `Facts Sheet' pertaining to the offence the Applicant was charged with;

a NSW Police Service `Criminal History - Bail Report' pertaining to the Applicant (one page, dated 09.10.01);

a NSW Police Service Computerised Operations Police System (COPS) report print out (two pages, dated 29.04.2002) re event numbered E 5759272 reported on 09.12.1998;

a print-out report (one page)from the Integrated Licensing System (ILS) dated 01.05.2002: recording the Applicant's security industry licence status as at that date, ie `under appeal process';

an ILS `Adverse Record Details' print-out dated 01.05.2002 stating Police Registry summary of decision to revoke licence (one page);

Transcript Liverpool Local Court proceedings before Magistrate W. Brydon, dated 12.12.2000;

Transcript Liverpool Local Court proceedings before Magistrate K. Flack dated 17.08.2001;

the Notification of Revocation of Licence #1 of 29.08.2001;

an `Issue' memo regarding Applicant not residing at registered address on 03.09.2001 (per Senior Constable Van Akker);

the Notification of Revocation of Licence #2 of 27.09.2001 served on 05.10.2001;

a photocopy of the Applicant's Security Industry Licence (front only); and

the internal review statement of reasons (22.10.2001).

14 The Applicant's application for review states that he sought review on the following bases:

i. Applicant disagrees with reasons of Commissioner in review decision that Applicant had not supplied proof of competency or change of address details;

ii. Applicant claims he has tried to approach the owner of the business to no avail, the reply being `I have to speak with my solicitor and get back to you' and Applicant claims he has not heard back from the proprietor.

15 The NSW Police Facts Sheet and COPS report record the facts of the offence essentially as follows.

About 12.25pm on 22.11.1998 the defendant [Mr Testoni, the Applicant] attended the retail shop `Cuddles and Mum' where he purchased a cot, stroller, highchair and car seat to the value of $2479.55. He paid for these items with a cheque in the account name of John Anthony TESTONI T/A J.A.E.T. Industries.

On 23.11.1998 the cheque was banked by the proprietor but was returned by the bank to the shop unpaid and marked `Refer to Drawer'.

The Manager of the store, Mr Cenatiempo, contacted the defendant by telephone in an attempt to rectify payment. The defendant failed to return to the store and to pay for the items mentioned.

On 09.12.1998 Mr Cenatiempo reported the matter to the police.

The matter was investigated. A statement from the defendant's bank was obtained; it revealed that the defendant's account was in debit at the time the cheque was written to the sum of $138.15 and that no money had been placed in the account after that time to cover the cheque.

The defendant was interviewed on 13.04.2000 at the Liverpool Police Station at which time he stated that at the time he wrote the cheque he knew there were insufficient funds in the account to cover the purchase but that he thought he would receive money sometime afterwards which would be banked and would cover the cheque. The defendant admitted that he did not place any funds into the account after writing the cheque.

The defendant was then charged with the offence. As at 13.04.2000 Cuddles and Mum remained unpaid and sought to be compensated for the sum of $2479.55.

16 The Applicant was found guilty by the Liverpool Local Court on 17.08.2001 of one offence of `passing valueless cheque >$2000 & <$5000- T2'. [The specific provision was not specified.] The Applicant was made the subject of an order under s. 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which placed him on a 12-month good behaviour bond, and he was ordered to pay court costs and compensate the proprietor to the sum of $2479.35.

17 The Applicant had been legally represented before the Magistrate in the Liverpool Local Court on 12.12.2000 and 17.08.2001. The Applicant had pleaded guilty. In his plea before the Court the Applicant's counsel referred to the Applicant's embarrassment and recognition of his conduct as reckless and `totally irresponsible in relation to his bank account', the Applicant's severe financial difficulties at the time and the Applicant's belief that sufficient funds would shortly be in his account to meet the cheque. The incident/offence occurred on 23.11.1998, five days after the Applicant's third child was born on 18.11.1998. Counsel referred to the Applicant taking up security industry work after the incident/offence mentioning his working with three companies since that time, and most recently in the position of supervisor.

18 On 12.12.2000 the Applicant's counsel had sought an adjournment and a referral to the Community Aid Panel to allow an opportunity for the Applicant to do some unpaid voluntary community service and to make full restitution to the company, in order to prove to the Court his capacity for responsible conduct. On that day the Applicant's matter was stood over and referred to the Community Aid Panel.

19 After being listed a number of times, the matter came before Magistrate Flack eight months later on 17.08.2001. According to the Transcript of proceedings, the Applicant's Counsel informed the Court the Applicant had attended the Community Aid Panel on 20 December 2000. No further details regarding the Panel are recorded in the Transcript. Magistrate Flack found the `offence proved, extenuating circumstances' and took into account the Applicant's guilty plea and community service and made the s. 10 order as noted above. In relation to the compensation to be paid, according to the Transcript the Applicant was ordered to pay `....$2479.35. One month to pay and the balance $200 forthwith'. It was at the Applicant's (solicitor's) suggestion that an arrangement be made by which the Applicant could pay his debt via the Court. The Court noted that the Applicant would need to `make arrangements with the Debt Recovery Office to pay that off...You need to make that application within a month even though you have paid $200 today'.

20 In relation to the Police Facts Report the Applicant's evidence at the Tribunal hearing was that it did not include all the details he provided at interview. In this regard he noted that no mention was made of his stating to the Police that he had been expecting that a certain amount of money had been/would be deposited into his account in payment for a job he had done at the end of October 1998, and that that money did not arrive as he had expected. He stated he had to chase the money up and that he ended up getting only half of what he was owed, which he then used to pay for the materials he had used for the job.

21 The Applicant stated further that the facts statement refers to him as having `failed to return or pay for the items mentioned'. He stated it fails to say that he had tried to pay back Mr Cenatiempo - `that I did offer Mr Cenatiempo to pay by instalments due to the fact that I did not have the ready cash' and that Mr Cenatiempo refused - `every time I mentioned it to Mr Cenatiempo, his reply to me has been "I will check with my legal adviser and get back to you" which did not happen. The Applicant claimed to have approached Mr Cenatiempo about six times by telephone, adding further that he had not been able to find Mr Cenatiempo at the store when he had visited there on about three occasions. These efforts by the Applicant occurred over about a three-year period. The Applicant did not approach the proprietor by letter or simply send a bank cheque to the proprietor.

22 The Applicant repeatedly denied he had had any intention to pass the cheque as a valueless cheque. He denied that he was intentionally dishonest. He denied any intention to deceive anybody. He denied any intention to not pay for the goods when he obtained them.

23 The Applicant gave evidence that given the status of his licence, of which his present employer was aware, he had been placed on restricted duties and `therefore restricted income'. His evidence continued that as at 26 April 2002 he still had not paid off the debt he owed Mr Cenatiempo/`Cuddles and Mum', having only paid the first instalment as arranged with the Court. He submitted that he believed others who had no knowledge of his personal circumstances should not judge him by their own circumstances or standards. At the hearing the Applicant claimed he still owed his legal representative $1600 and owed on his car, in addition to regular living expenses. He stated he had been out of work just after the Court case due to his security licence being revoked. He claimed that had put him `further back into debt'. He had fathered another child since the child born in November 1998. He himself found it `unbelievable' that the proprietor had not commenced proceedings against him for the remainder of the money.

24 In his letter seeking internal review, the Applicant stated that the incident/offence was `unfortunate' arising out of his `unfortunate circumstances' at the time. He claimed it was not a calculated way of taking advantage of another person or company. The Applicant referred to his three-year period of employment in the industry without abusing the trust placed in him by the Commissioner and his employers alike. He stated he took his work seriously and had wanted to pursue it as his career. He asked that it be noted that the offence was the `only blemish' on his record.

25 The Applicant's evidence was he had no other criminal offence matter in his history or on his record. He claimed that his 12 month bond period had passed without incident. He submitted these two facts supported his claim that he is not a dishonest person.

26 In relation to his claim to honesty and trustworthiness, the Applicant referred to his having worked in the industry for the years since the incident/offence without there being any issues or incidents of any kind and referred to his references in this regard. His first security industry employer (BRENT HOWARD ENTERPRISES [SECURITY]) provides a very complimentary reference on the Applicant's period of employment with it (dates unspecified). His current employer is Cro-Link Protection Services where, although he has been put on restricted duties - apparently due to his licence status - the Applicant's work includes the role of supervisor. He has worked there for more than two years prior to the beginning of the Tribunal hearing. The Managing Director considers the Applicant honest and reliable and suitable for security work.

27 The Applicant expressed his regret at what had happened. He stated it would never happen again. In this regard he had in fact closed his cheque account and stated he would never own a cheque account again. He wanted to get on with his life, continue working as a security worker and get rid of the debt.

Submissions

28 Written submissions were provided on behalf of the Commissioner and these were expanded upon orally at the hearing on 26 April 2002. It was stated in the written submissions that they were relied upon in addition to those written reasons for decision of 22.10.2001 which had affirmed the decision to revoke.

29 At the hearing, however, it was made clear that not all the previously relied upon bases for the Commissioner's decision to revoke the Applicant's licence were still relied upon. Sections 15(1)(c) & (d) and 26 (1)(b)(iii) of the Act and clauses 10 & 14 of the Regulation were no longer pressed as bases for revocation by the Commissioner. These bases had concerned the alleged failure by the Applicant to provide change of address details and proof of competency documents to the Registry as required. The Applicant had been consistently adamant in his denials that he had failed to meet these conditions and requirements.

30 This meant that the Commissioner's reasons for seeking revocation of the Applicant's licence were twofold: (1) s. 16(1)(b), s. 26(1)(a) of the Act together with cl. 11 of the Regulation concerning the application of bases for licence refusal; and (2) s. 26(1)(c) of the Act concerning a licensee's fitness to continue to hold a licence.

31 The Applicant made no formal written submissions. In the absence of such, the Tribunal considered the two written reasons provided by the Applicant as to why he made the application for external review as noted at paragraph 14 above, his letter seeking internal review and his oral submissions made to the Tribunal at hearing.

32 It was submitted by the Commissioner that s 16(1)(b) of the Act requires that the Commissioner must refuse to grant a licence if satisfied an applicant has been found guilty of a prescribed offence but without a conviction being recorded within a period of five years before the application for the licence was made. It was submitted that the Applicant's offence falls within the parameters of the categories prescribed in s. 16(1)(b) of the Act and Clause 11(d) of the Regulation as an offence that disqualifies the applicant.

33 The Commissioner relied on the Tribunal decisions of Bourke & Ors v The New South Wales Commissioner of Police [1998] NSWADT 1 and Hargreaves v Commissioner of Police, NSW Police Service [1999] NSWADT 64 for their respective findings that the Tribunal's `jurisdiction on review is limited to the question of whether the objective facts relied upon by the administrator are proven, and it is not open to the Tribunal to exercise any discretion in relation to the merits of the decision' and that `the examination of the objective facts involves two questions: is the record of the offence relied upon accurate; and has it [the offence] been properly classified as a prescribed offence to which the administrator's duty to refuse attaches'. In the Commissioner's submission, the record of conviction relied upon is accurate and the offence has been properly classified as a prescribed offence.

34 In the written submissions the Commissioner referred to the decisions of Winika v Commissioner of Police [2001] NSW ADT 8 and Maha Pese v Commissioner of Police [2001] NSW ADT 67 in relation to dishonesty specifically and the decisions of Sobey v Commercial Private Agent's Board [1979] 22 SASR 70 and Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1953) 93 CLR 127 in relation to the relationship between honesty and fitness for a particular role.

35 In the written submissions (at para. 18) the Commissioner submitted that the Applicant's offence was one to which "mandatory refusal attaches and thereby revocation, and that the decision to revoke the licence was the `correct and preferable' one in all the circumstances".

36 During oral submissions Mr Sternberg for the Commissioner stated that the Applicant was found to have committed two offences, identifying sections 178B and 178B(A) of the Crimes Act 1900 (NSW). Mr Sternberg noted that there appeared to be a period of nearly three years between the Applicant issuing the valueless cheque and the Court order requiring compensation to the same sum be paid the proprietor. Mr Sternberg submitted that the discretion in s. 26 (1)(a) should be exercised against the Applicant because such period of non-payment could not be considered an `oversight'. Mr Sternberg submitted that it `staggers belief' that the debt still had not been repaid in over three years. He expressed incredulity that the Applicant had created no document evidencing his intention or endeavour or desire to pay his debt. In this regard Mr Sernberg submitted that the Applicant did not deserve or warrant the exercise of the Tribunal's discretion in his favour.

37 Mr Sternberg also submitted, in relation to s. 26(1)(c), that an important feature of the Act was to maintain honesty, respect and credibility within the profession and that the Applicant's offence of dishonesty `is contrary to the intentions of the legislation'.

38 In relation to the ground of fitness, the Commissioner submitted in the written submissions that the Applicant's actions constituting his offence exhibited dishonesty, deceit and the `lack of morals and principles'. According to the Commissioner these factors raise a question as to the Applicant's character sufficient to consider him unfit to hold a licence.

39 The Applicant submitted that had the reviewing officer had before her all the details provided by the Applicant (presumably these details include the fact that the Applicant had provided the necessary documentation and therefore had complied with the conditions of his licence) he may have been looked upon in a different light and her decision may have been different. He referred to paragraph 29 of the internal review statement of reasons stating he believed that `the crunch of the whole thing' was, and that the decision maker `based a lot of it' on, the alleged breach of conditions by the Applicant.

40 In reply to the Applicant's submission concerning paragraph 29 Mr Sternberg drew attention to that part of the paragraph which referred specifically to the offence of passing the cheque and the Applicant's subsequent failure to attend to the debt before stating her conclusion that these actions `clearly demonstrated your dishonesty and deceit, lack of morals and principles'. He submitted these conclusions were not based upon the alleged breach of conditions as suggested by the Applicant.

Findings and Reasoning

41 As noted above under `Submissions' the Commissioner claimed reliance for revocation on s. 26 (1)(a) read with s. 16(1)(b), and s. 26(1)(c) only. The Commissioner no longer pressed the subsections of s. 15 as bases for the revocation, as `those issues have now been answered'.

42 Subsequent to the hearing the Tribunal was provided with copies of the Local Court Transcripts obtained by the Commissioner at the Tribunal's request. Accordingly they were materials not considered in the Commissioner's original and review decision nor in the Commissioner's submissions. Accordingly, the Tribunal had before it material additional to consider in its determining how to decide this application to that which was available to the Commissioner at the time the earlier decisions were made. This Tribunal also had the benefit of hearing from the Applicant personally at the hearing.

43 At the hearing the Applicant's evidence was frank and to the point. His manner was a little uncomfortable and at times a little feisty. The Applicant had clearly been frustrated by the Security Industry Registry's actions in relation to his records. His discomfort was at having to explain himself and disclose his circumstances. The Tribunal interpreted this discomfort as a mix of embarrassment and self-anger on the part of the Applicant for the situations he had placed himself in. It was not a place or space he enjoyed being in.

44 There was no evidence led contradicting the accuracy of the records regarding the Applicant's 1998 offence.

45 The 1998 offence was of `passing valueless cheque >$2000 & <$5000- T2'. The first issue to be determined is whether or not this is an offence involving fraud, dishonesty or stealing for the purposes of cl. 11(d) of the Regulation and s 16 of the Act.

46 The Tribunal has previously determined that its jurisdiction on review, as far as a review applicant's offences are concerned, is limited to the question of whether the objective facts relied upon by the administrator are proven and it is not open to the Tribunal to exercise any discretion in relation to the merits of the decision (see Bourke).

47 The Applicant was referred to in the Commissioner's oral submissions as having committed two offences. The Applicant had in fact been found guilty of one offence only, the breach of s. 178B of the Crimes Act (although it is noted two offences are referred to in some of the Police documents).

48 The relevant offence was s. 178B concerning `valueless cheques'. It provides:

Whosoever obtains any chattel, money or valuable security by passing any cheque which is not paid on presentation shall, unless he or she proves:

(a) that he or she had reasonable grounds for believing that that cheque would be paid in full on presentation, and

(b) that he or she had no intent to defraud,

be liable to imprisonment for one year, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed.

49 This offence appears under Division 1 Part 4 of the Crimes Act concerning offences relating to property under the heading `Stealing and like offences'. It does not necessarily follow from the heading alone, without anything further, that the subject offence therefore involves dishonesty, fraud or stealing.

50 As can be seen, however, one element of the Applicant's offence is (indirectly) the `intent to defraud'. The Tribunal's Appeal Panel has confirmed that 'dishonesty, fraud or stealing' need not be an element of the offence in order for an offence to belong to the cl 11(d) category. See Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17.

51 However where the requisite conduct, or a related intention in that regard, actually does form an element of the offence (directly or indirectly), as it does in the present circumstances (re intention to defraud), the conclusion that the offence falls within the prescribed category is more easily reached. In the Tribunal's opinion the offence falls within the category prescribed by cl. 11 of the Regulation.

52 Under section 26(1)(a) a decision maker may revoke a licence 'for any reason for which the licensee would be required to be refused a licence of that class'. In this case, had the Applicant been applying for a licence such an application would have been refused because of his relevant offence. However, where a licence has already been granted, the power to revoke is a discretionary one. Revocation is not automatic or mandatory. Revocation does not follow just because the facts bring it within the operation of the discretion, as suggested in paragraph 18 of the Commissioner's written submissions. In oral submissions the Commissioner essentially relied upon the fact that the Applicant's debt was still largely unpaid and submitted that this evidenced the Applicant's continuing dishonesty. In the Tribunal's view, all relevant information available needs to be considered in the process of deciding how the discretion should be exercised.

53 It was also submitted that the Applicant's licence should remain revoked on the basis he was no longer a fit and proper person (s 26(1)(c)), the cases of Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1953) 93 CLR 127 and Sobey v Commercial Private Agents Board (1979) 22 SASR 70 were cited in this regard.

54 Hughes and Vale (at 156-157) suggests a strong connection between dishonesty and unfitness but does not preclude a person convicted of a crime of dishonesty from never again being a fit and proper person. Sobey (at 75) observes that a criminal record is germane and crucial in determining the question of a person's fitness but does 'not go so far to say that one criminal offence must necessarily deprive a person of that fitness...'.

55 In another High Court matter, Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 170 CLR 321, the court was of the view that: the question whether a person is fit and proper is one of value judgment and in that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker (at para 63); and that where there is a legislative requirement of being 'fit and proper' in relation to a licence of some kind 'the requirement takes its meaning from the activities which the person is or will be authorized to engage in by virtue of the licence and the ends to be served by those activities....'; and that 'depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur' (see at 380).

56 The Applicant's 1998 offence was committed, as the Court recognised, in `extenuating circumstances'. They were extremely personal circumstances. The Applicant had a newborn child and purchased goods relating to that child. The Applicant was owed money himself at that time and was expecting to receive the monies he was owed in time to cover his cheque. This is the factual context of the offence accepted by the Tribunal.

57 The Applicant pleaded guilty at his trial. Such a plea is interpreted generally as an admission of the elements of an offence. It is not clear to this Tribunal from the evidence that the Applicant understood this aspect of his plea. This is because the Applicant explained to this Tribunal several times that at the time he passed the cheque he expected to be able, and intended, to meet its debt, but that had not been how things turned out. His evidence was that he did not intend to not pay for the goods, he did not intend to deceive the shop proprietor/manager.

58 The Applicant's strong denials before the Tribunal of any intention to commit an offence are accepted by the Tribunal (despite the elements of the offence itself).

59 The debt (or at least a substantial portion of it) still existed eight months after the Local Court proceedings (ie. at the time of the Tribunal hearing). The Applicant referred to having fathered another child since the offence. The Applicant expressed a strong desire to meet the debt and `get it out of his hair'. At the time of the hearing the Applicant had not had any legal proceedings commenced against him for the debt, nor had he, apparently, approached the Court to ask for the order of compensation/restitution be changed or modified. The precise details of the arrangements as to payment of the debt were not in evidence before the Tribunal. The wording of the Magistrate's order does not really assist in this regard, at one point suggesting there was a month to pay and at another point that the arrangement details be placed in the hands of the Debt Recovery Office.

60 The Applicant accepted responsibility for the fact he used a cheque which proved to be bad. The Applicant accepted responsibility for the fact the goods still remained unpaid for at the time of the hearing.

61 The Tribunal accepts that the Applicant made several attempts to discuss and make arrangements regarding his repayment of his debt with the proprietor/manager prior to the Local Court hearing on 12.12.2000 and 17.08.2001. This evidence was not disputed. The Tribunal notes that since the Local Court decision of 17.08.2001 he has made only one payment towards the debt he owes. The Applicant's explanation for this focussed on his continuing strained financial circumstances.

62 The Tribunal agrees with the Commissioner that the Applicant's failure in his efforts to address the debt lends support to drawing the conclusion that the discretion should be exercised against the Applicant. The Tribunal agrees that the failure of the Applicant to make any significant or sustained gesture towards meeting his debt reflects poorly on him. Had he made some effort, any effort, to illustrate his expressed claims of regret and intention to meet his debt, such would have contributed towards persuading the Tribunal the Applicant means what he says.

63 However, for present purposes, the Tribunal accepts that the prolonged failure to pay off the debt by the Applicant establishes that the debt has proved a hurdle the Applicant has had continuing difficulty getting over. His explanation for his failure to pay was essentially that he has been constantly in financial difficulty since the time it was incurred. The Tribunal accepts the Applicant's evidence that he has remained in financial difficulty for several years. This is an extremely unfortunate circumstance for any person and particularly so for a family provider. The Tribunal does not accept, at this point in time, that the Applicant's failure to meet the debt has been because of some continuing dishonesty in the Applicant.

64 According to the Applicant, if his licence status is restored, with the passage of time his financial circumstances are likely to improve and he can rid himself of his debts. This is a reasonable hypothesis. It would also follow on from this that, as his `financial circumstances' improve, such would form a decreasing basis on which the Applicant could rely to explain his conduct.

65 The Tribunal accepts the Applicant's circumstances at the relevant time as extenuating and unfortunate and that such circumstances can persist for an extended period and therefore explain his conduct for present purposes. It notes however that such circumstances and explanation cannot be meaningfully maintained indefinitely.

66 The Tribunal exercises the Act's s. 26(1)(a) discretion so as not to revoke the Applicant's licence.

67 The Applicant was found guilty of an offence involving dishonesty. Arguably, that is in itself serious. As to the question of how serious, some indication is provided by the decision of the Magistrate to dismiss the charge and record no conviction, placing the Applicant on a bond and requiring he pay compensation/restitution. This is an arguably light penalty imposed by the Court. There was no evidence to suggest the Applicant's act of dishonesty was one among many. The Applicant has no other offences recorded against him. There is no other incident, no complaint, no history of dishonesty or deception at all. In the Tribunal's view the incident of dishonesty was an exception.

68 The Applicant's offence was committed before he entered the security industry. The offence was not at all related to the security industry or its types of work. The Applicant went on after the incident/offence to prove himself to at least three different employers.

69 The work authorised by the Applicant's licence includes to patrol, guard, watch or protect property (including the guarding of cash in transit) and to work as a bodyguard, crowd controller or bouncer.

70 There was little detail provided in the evidence about the nature of the Applicant's security industry employment. It was stated he was presently on restricted duties, was not using a gun and was a supervisor. The exact nature of the security work was not the subject of evidence.

71 The Applicant's conviction is also not related to the security industry or the type of work he has been involved in to date. There was nothing in the evidence to suggest any dishonesty or other failing by the Applicant in the course of carrying out his duties and responsibilities in his security industry employment to date.

72 The evidence does support the Applicant's claim that since his employment in the industry, he has done nothing to abuse the trust placed in him by the Commissioner and his employers alike.

73 No evidence was provided suggesting the existence of any complaint or problem with his work during the three and a half years of his security industry employment.

74 As far as the Applicant's knowledge about his work and his ability to do it is concerned the fact he has maintained employment for over three and a half years suggests he meets the relevant standards. In addition there is further support for this conclusion in the three employment references submitted, each of which confirm the Applicant's ability and trustworthiness. None of this evidence was challenged or objected to.

75 In the Tribunal's view, the Applicant's offence was a one-off incident. There is no evidence to support a conclusion that the Applicant has the inclination to re-offend. On the contrary, there is evidence to conclude confidently that his offensive conduct will not recur.

76 In this Tribunal's view the Applicant can be considered and held out to the public as a person who can be entrusted with the responsibilities and duties his licence authorises. It considers that the Applicant remains fit and proper to continue working in the industry. Accordingly the Tribunal does not exercise the s 26(1)(c) discretion against him.

77 In relation to the Applicant's outstanding debt, the fact no further action has been pursued by the proprietor or the authorities against the Applicant suggests only that no action has yet been taken; the possibility for such action remains until the debt is paid. The Applicant might consider himself fortunate in this regard to date. Arguably however, as noted above, the Applicant's explanation cannot be meaningfully maintained indefinitely and the longer he leaves the debt unpaid he increases the possibility and opportunity for negative conclusions to be formed about him.

Decision

78 In accordance with s. 63 (3)(c) of the Tribunal Act the following order is made:

The Commissioner's decision to revoke Mr Testoni's security industry licence based first on s. 26(1)(a) and second on s. 26(1)(c) of the Security Industry Act, is set aside.