Krzeminski v Commissioner of Police, New South Wales Police Service (No.2) [2003] NSWADT 8 (16 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Krzeminski v Commissioner of Police, New South Wales Police Service (No.2) [2003] NSWADT 8

PARTIES: APPLICANT

Dean Krzeminski

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003320

HEARING DATES: 27/02/2002, 19/04/2002

SUBMISSIONS CLOSED: 19-04-2002

DECISION DATE: 16-01-2003

BEFORE: Lees M - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes Act 1900

Criminal Code Act 1899 (QLD)

Security Industry Act 1997

Security Industry Regulation 1998

CASES CITED: Krzezeminski v Commissioner of Police, NSW Police Service [2001] NSWADT 103

Commissioner of Police, New South Wales Police Service v Krzeminski [2002] NSWADTAP 3

Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389

Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 60 ALR 509

R v Henry & Ors [1999] NSWCCA 11; [1999] 106 A Crim R 149

Knight (1988) 35A Crim R 314

APPLICATION: Security Industry Act - security industry licence -grant of licence

Security industry licence - grant of licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

27/02/2002 A Tees

19/04/2002 In person

RESPONDENT REPRESENTATIVE: RESPONDENT

27/02/2002 C Capper

19/04/2002 D Paterson

ORDERS: 1 That part of the Commissioner's decision to refuse Mr Krzeminski's application for a security industry licence based on s 16(1)(b) of the Security Industry Act is affirmed.

Reasons for Decision:

Background

1 The principal application of Mr Krzeminski (the Applicant) is for a review of a decision of the administrator, the NSW Police Service Commissioner of Police (the Commissioner), to refuse to grant the applicant a security industry licence following his application made pursuant to Security Industry Act 1997 (the Act). According to the documents filed on behalf of the Commissioner there appear to have been three bases for the refusal of the licence. The first was that the Applicant was not entitled to a licence because he had been convicted of a "serious assault offence" under section 11(c)(ii) of the Security Industry Regulation 1998 (the Regulation). The second was that the Applicant was not a fit and proper person to hold the licence and the third basis was that it was not in the public interest that the Applicant be granted a licence (see s. 15 the Act re both bases).

2 This matter at first instance proceeded before the Administrative Decisions Tribunal (the Tribunal), differently constituted, on the agreed basis it was appropriate for two preliminary issues to be determined first by the Tribunal. This was on the understanding that if the issues were determined in the Commissioner's favour, that would be an end to the matter and there would be no need for any further hearing.

3 The two issues for the Tribunal to determine were considered to be:

(a) whether, in the opinion of the Tribunal, the finding that the applicant was guilty of a criminal offence in 1997 with no conviction recorded was appropriately characterised as a "serious assault offence" within the meaning of regulation 11(c)(ii) of the Regulation; and

(b) whether there was an offence "relating to" firearms or weapons here within the meaning of regulation 11(a) of the Regulation.

4 On 22 June 2001 that Tribunal decided that the finding:

- that the applicant was guilty of two assault offences on 16 June 1997 with no conviction recorded is not a "serious assault offence" within the meaning of regulation 11(c)(ii) of the Regulation; and

- that the applicant's two assault offences on 16 June 1997 were not offences relating to firearms or weapons within the meaning of regulation 11(a) of the Regulation.

(See Krezeminski -v- Commissioner of Police, NSW Police Service[2001] NSWADT 103.)

5 On 25 July 2001, the Commissioner for Police lodged an appeal against this preliminary decision. The appeal was heard in September 2001 with submissions closing in January 2002. The appeal was pressed only in relation to the first part of the decision (ie. (a) above). The Tribunal's Appeal Panel handed down its decision on 17 January 2002: Commissioner of Police, New South Wales Police Service -v- Krzeminski [2002] NSWADTAP 3 revised - 21/01/2002.

6 The Appeal Panel decided:

1. to set aside the decision of the Tribunal;

2. that leave was not granted for the appeal to extend to a review of the merits of the appealable decision; and

3. that the matter be remitted to a differently constituted Tribunal to determine the question of whether the offences for which Mr Krzeminski has been convicted constitute "serious assault offences" in accordance with the reasoning in this decision.

The Applicable Legislation

7 Section 16(1) of the Act provides for the restriction on the granting of a licence due to an applicant's criminal and other related history. It reads:

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

(a) has, within the period of 10 years before the application for the licence was made, been convicted 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, or

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, or ......

8 Regulation 11 of the Regulation provides for offences that disqualify applicants. It reads as relevant:

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) - (b) ...

Offences involving assault

An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:

(i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or

(ii) in such cases where the applicant concerned has been found guilty but not been convicted of an offence that, in the opinion of the Commissioner, is a serious assault offence.

The Appeal Panel Decision Findings and Reasoning

9 The primary issue for the Appeal Panel was whether the meaning of the phrase `serious assault offence' is a question of fact, a question of law or a mixed question of fact and law. The Appeal Panel found that the effect or proper construction of the phrase "serious assault offence" was a question of law, relying principally on the reasoning in the decisions of Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR at 389 and Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463.

10 As far as this Tribunal can extract, the reasoning in the Appeal Panel decision (AP) consists essentially in the following:

1. The word "serious" is an ordinary word and its meaning is a question of fact. However, the scope of the matters that can be taken into account in determining whether a particular offence is a "serious assault offence" involves the effect or construction of this phrase. That is a question of law. Consequently the interpretation of the phrase involves both questions of fact and questions of law, see AP [16].

2. Words must be read, not in isolation, but in the context of the enactment of which they form a part (see K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 60 ALR 509 at 514 per Mason J), see AP [25]

3. The decision in Betkhoshabeh was distinguishable from the present case because of the context in which the words appear in each case. In Betkhoshabeh the relevant phrase was "particularly serious crime" as appearing in Article 33.2 of the Convention Relating to the Status of Refugees 1951 which reads:

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." (Emphasis added.)

Finkelstein J held at 471E that whether or not a crime such as a rape is a "particularly serious crime" will depend on "all of the circumstances that led to the commission of those offences including those circumstances that would diminish the appellant's moral culpability for having committed them" (see AP[21]). The Appeal Panel noted that Article 33.2 does not differentiate between a conviction as opposed to a finding of guilt without a conviction being recorded as the present Regulation does and that the legislature in the latter could have made the opinion that the offence is a "serious assault offence" the test for mandatory refusal regardless of whether or not a conviction had been recorded, in which case the context of the words would have been similar to that in Betkhoshabeh and a finding that the phrase was intended to include all the factors relevant to the offence, would have been open (see AP [27]).

4. Section 556A (now repealed) of the Crimes Act 1900 (NSW) was the provision that permitted a court to have regard to any matter it thought proper, including matters personal to the person charged and the trivial nature of an offence, in order to make a decision not to convict a person. In the Appeal Panel's view it could generally be assumed that where no conviction is recorded the offence itself and/or the circumstances surrounding the offence are considered by the court to be insufficiently serious to warrant conviction and if the Tribunal took into account the same or similar factors when assessing whether the offence is a "serious assault offence" `there would be few, if any, cases it would categorise as "serious"' (AP [29]). Where the "trivial nature" of the offence may be the, or one of the, factors in the decision to find a person guilty but record no conviction, the Appeal Panel was of the view that `it is unlikely that the Tribunal would find that such an offence was a "serious assault offence". If the court formed its no conviction view on the basis of factors other than the trivial nature of the offence then `the offence may still be serious' (AP [29]).

5. The Appeal Panel considered that `the legislature has already taken into account the fact that offences where no conviction is recorded are less serious by reducing the disqualification period from 10 years to 5 years. Nevertheless the legislature decided that an application for a security industry licence should still be refused where the assault was a "serious assault offence". As the period of disqualification has already been discounted the legislature cannot have intended that all the same factors be taken into account again by the Commissioner or the Tribunal in assessing the seriousness of the offence' (AP [31]).

6. It is an error of law for the Tribunal in the circumstances of interpreting the phrase "serious assault offence" to include factors other than the nature of the offence itself (AP [32]).

7. The phrase refers to the offence or offences as found by the court; in assessing whether the offence is "serious" the Tribunal must confine itself to the material which was before the decision maker when hearing the case. It is not the Tribunal's role to re-hear the criminal charges or to take any fresh evidence into account (AP ([32]).

8. A Tribunal deciding whether an offence is a "serious assault offence" should also keep in mind the range of assault offences to which s 556A (or its equivalent) applies (AP [33]).

The evidence

11 Neither party relied on oral evidence before this Tribunal. Although an effort was made to specifically identify the documentary materials relied upon by the parties on the first hearing date, this had mixed success. Although the Commissioner's materials were identified, neither the applicant when appearing on his own nor his legal representative when in attendance, were sufficiently prepared to be in a position to do so. The applicant sought to rely on what had previously been provided to the Tribunal, without further specification.

12 The Commissioner relied specifically on the following:

1. Binder: Documents Filed for Directions Hearing 24 October 2000, consisting of:

A. Applicant's Licence History

B. Applicant's initial application for licence (dated 21 February 2000)

C. Applicant's Criminal History

D. Commissioner's Notification of Refusal (27 March 2000)

E. Computerised Operations Police System (COPS) Report - incident 4 September 1996

F. Application for internal review (dated 19 June 2000)

G. Facsimile from Applicant to Security Industry Registry (23 June 2000)

H. Facsimile from Applicant to Security Industry Registry (23 June 2000)

I. Internal Review Result and Statement of Reasons (13 October 2000)

J. Application to Tribunal (9 October 2000)

2. Binder: Documents Filed for Hearing 26 February 2001, consisting of:

A. Letter of Dean Krzeminski to Police Assistant Commissioner Nixon (6 September 1997)

B. Report of Dr Lennane (11 June 1996)

C. Hospital Records from Cumberland Hospital

D. Sentence summary of Neild J re 16 June 1997

E. Statement of Facts

F. Witness Statements - Sorrell, Higgins and Matley

G. Report of Dr Alexander Murray (24 January 1997)

H. Report of Dr Jean Lennane (10 April 1997)

I. Strategic Assessment of Internal Affairs, NSW Police Service (17 March 2000).

13 Additional documents provided by the Applicant consist of:

3. Additional reference from Father David Wilkins (26 March 1997)

4. Facts Sheet (On-Line Charging) (4 September 1996)

5. Letter from Dr Alexander Murray to Dr R. Beckett (4 February 1997)

Letter from Dr Murray to Mr Mario D'Amico (12 February 1997)

Letter from the Applicant to District Court Judge (14 June 1997).

14 The parties also relied on the following:

(a) Summary, District Court NSW, Penrith 96/21/1254 Regina v Dean Richard Krzeminski, Judge Nield, Proceedings on Sentence, Monday 16 June 1997

(b) Transcript, District Court NSW, Penrith 96/21/1254 Regina v Dean Richard Krzeminski, Judge Nield, Sentence, Monday 16 June 1997.

15 On about 24 February 2000, the applicant made an application for a Class 1, subclass A, B & C security industry licence. Such a licence, if granted, would authorise the applicant to patrol, guard, watch or protect persons or property, to act as a bodyguard, and to act as a crowd controller or bouncer.

16 On about 27 March 2000 a delegate of the Commissioner refused the application by reason of the combination of section 16(1)(b) of the Act and clause 11(c)(ii) of the Regulation, that, in the opinion of the Commissioner, the common assault offence was a "serious assault offence" within the meaning of the clause. Further, it was decided that the Applicant was not a fit and proper person to hold the class of licence sought and that it would be contrary to the public interest to grant the Applicant a licence, pursuant to sub sections 15(1) and 15(3) of the Act respectively. No statement of reasons was given for the making of these findings.

17 On about 19 June 2000 the Applicant made an application for an internal review of the decision. He raised a significant number of matters in his application for internal review including the common assault offence issue.

18 On 4 July 2000, an officer of the Police Service made an internal review decision affirming refusal of the Applicant's application on the same grounds as were in the original decision. On this occasion also no statement of reasons was provided. As observed by this Tribunal at first instance, a statement of reasons ought to have been provided in accordance with the internal review procedure in section 53(7) of the Administrative Decisions Tribunal Act 1997 (`the ADT Act'). Those reasons should have set out, amongst other things, the reasoning processes that led to the conclusions made.

19 On 9 October 2000, the Applicant filed his application for review of a reviewable decision with this Tribunal. On about 13 October 2000 a different delegate of the Commissioner provided a statement of reasons for the refusal (presumably pursuant to section 58(1)(a) of the ADT Act, notwithstanding that the document itself states that it is made under section 53 of the ADT Act and that the delegate appears to be a different decision maker from that of the internal review decision of 4 July 2000).

20 The Tribunal at first instance summarised the Applicant's application for a security industry licence as follows:

4 The applicant's initial application for a security industry licence revealed that the applicant was a police officer in New South Wales from 1988 to 1996 and had not been dismissed from service. It included references from a number of current and former employers and a priest. The applicant was studying full-time law at university. They are all good references. The application also discloses the offence and the fact that no conviction was recorded. Significantly, included in his application was a form of authority for pre-training which had been completed by an officer of the respondent [the Commissioner] recording the applicant as a suitable candidate to undertake security industry training. It was signed and dated 9 December 1999 by the said officer. On this form, the applicant had also disclosed details relating to his conviction. The applicant then undertook tactical training and a certificate relating to his competency in that the training was attached to the application.

5 On the whole, on the face of the application, the only negative feature and the only probable impediment to the applicant being granted a Class 1 licence was his common assault offence

21 In relation to that common assault offence to which the Applicant pleaded guilty, the Tribunal at first instance stated:

11 In the respondent's statement of reasons, the factual issues relating to the assault offence in the present case are as follows:

"On 16 June 1997 and Penrith District Court in the applicant was found guilty with no conviction recorded of two counts of "Assault". The applicant was given a 12 month good behaviour bond and ordered to undertake psychiatric treatment or alcohol counselling.

At the time of these offences [4 September 1996] the applicant was a voluntary resident of Our Lady of Perpetual Help Detoxification Centre in Quakers Hill. The manager of the centre requested that the applicant leave the centre as he was not adhering to their rules. The applicant took exception to the request and informed the manager that he would kill him. The applicant went to the kitchen and obtained a kitchen knife. The centre's psychologist attempted to stop the applicant, and was threatened with the knife. The applicant then repeated his intention to kill the manager. The psychologist managed to calm the applicant down prior to locking himself and the manager in a room where the police were called.

When interviewed the applicant claimed that it was his intention to kill only himself whilst the centre's manager watched. Later that evening the applicant was voluntarily admitted to Cumberland Psychiatric Hospital."

22 Of the materials before the Tribunal listed above, those that were also before the Court appear to have been: 2E; 2F; 2G; 2H; 3; 5; 6 & 7. This Tribunal has confined itself to these materials for present purposes.

23 Additional details surrounding the assault offence emerge particularly from the witness statements and the transcript of Nield, J at sentencing.

24 These suggest that the Applicant argued with the Manager about the Manager's decision and that the Manager had proposed he might call the police. This proposal seemed to rile the Applicant even further. According to the Manager the Applicant's first threat regarding the Manager was while the Applicant was speaking to the psychologist as the Applicant was leaving the office and consisted in the Applicant saying `I'll kill him' followed by the Applicant looking at the Manager over the psychologist's shoulder saying `I will kill you Jim'. According to the psychologist the Applicant stated this as he was walking `up the hallway'. The Manager states in his statement that he first felt `threatened' by the Applicant when the Applicant became angry and then `concerned' and `anxious' when the Applicant made the verbal threat, becoming `almost comatose with fear'. [It is noted that the Manager understood at this time that the Applicant suffered from stress and had `a certain paranoia' about the police.] It appears that the Manager did then phone the police. Away from the office the Applicant spoke some more with the psychologist and repeated his threat and asked the psychologist to stop the phone call to the police. The Applicant was trying to return to the Manager's office and the psychologist blocked his way. There was some pushing and struggling but the psychologist appears to have been concerned for the Manager's safety at this stage rather than his own. The Applicant then left the psychologist and went to the Centre's kitchen where he obtained a long bladed kitchen knife. He returned to where the psychologist was in the hallway to the office and holding the knife in a threatening way told the psychologist to `get out of my way'. The Manager stated he heard further threats of `I'll kill him' from the hallway and then quiet. The psychologist stated in his statement he was `in fear of being harmed with the knife' and motioned the Applicant not to use the knife and the Applicant responded saying `well tell him not to ring the police'. The psychologist agreed and retreated to the office where the Manager was on the phone again to the police. The psychologist locked the office door behind him. According to another resident the Applicant returned to the kitchen, threw the knife on the bench and stormed off towards his room. After several minutes that resident knocked on the office door and spoke with the Manager. Some minutes later the police arrived and spoke with the manager and the psychologist. After some minutes the Applicant appeared, walking calmly from the back of the premises.

25 Neither the manager nor the psychologist was physically injured during the incident, but in their statements to police both men expressed their fear of being harmed by the Applicant. The Applicant told police if any one of the three had been in danger, it was himself.

26 There was medical evidence before the Judge and before this Tribunal as to the Applicant's state of health at the time of the incident and his status at the time of the subsequent trial. It is clear that the Judge relied on this evidence, amongst other matters, in his decision not to convict the Applicant. It is noted also that he recognised `that threatening the life of someone and arming oneself when threatening the life of someone is very serious conduct'.

27 The Applicant had pleaded guilty to the two charges of assault and accordingly Nield, J found the charges proven. He then proceeded to dismiss the charges conditionally pursuant to s. 556A of the Crimes Act 1900 (NSW).

The submissions

28 The Applicant relied upon the written material he had lodged with the Tribunal previously.

29 The Commissioner relied on the written submissions provided to the Tribunal at first instance (dated 21 March 2001) specifically pars. 1 to 43 and 67 to 73 as supplemented by oral submissions made at the Tribunal hearing of 27 February 2002.

30 The submissions made on the Commissioner's behalf were essentially that the Tribunal should consider:

- only the physical actions of the Applicant, the immediate surrounding circumstances and the impact or effect of the actions on the victim/s;

- the applicant's action or conduct involving death threats and the use of a knife which placed the victims in fear of imminent contact and that these actions were sufficient to fall within the parameters of a "serious assault offence" as provided in the Regulation for the purpose of the Act; and

- that the offence committed by the Applicant could be likened to the offence of armed robbery excepting the element of theft of property and referred the Tribunal to the guideline decision of R v Henry & Ors [1999] NSWCCA 11; [1999] 106 A Crim R 149.

31 The Applicant's submissions (which are mixed to some degree with assertions as to factual matters) have been extracted from his letter to the NSW Police Service Registry written during his licence application and review process dated 19 June 2000 and in his application to this Tribunal (dated 9 October 2000) for review of the Commissioner's decision to refuse to grant him a licence. These submissions were that:

- he had pleaded guilty to the assault charges;

- there were no `serious injuries occasioned within the facts of the offence' as there was no physical contact whatsoever;

- there were mitigating circumstances due to the medical conditions he was `deemed' to suffer;

- there was no pre-meditation or intention to commit the offences of assault;

- he was contrite and sorry for the fear he caused the victims;

- no drugs of any kind were involved or formed part of the assault offences;

- he had disclosed his offence in his application and had received pre-training criminal record suitability clearance and received assurances his record would not work against his application succeeding;

- he considered he was still being victimised by the Police and that such was unfair;

- since the offences he had been rehabilitated and was doing his best to get on with his life but felt he was still being victimised and that such was unfair;

- `discretion should apply' in relation to the s.556A decision; and

- other offenders with s.556A dismissals/discharges had succeeded in obtaining security industry licences.

Findings and Reasoning

32 The Tribunal has taken these submissions into consideration but notes that the Commissioner's submissions at paragraphs 35 to 43 concerned issue (b) as identified in paragraph 3 above and therefore, given the Commissioner's decision noted in paragraph 4 above, such do not need to be considered for present purposes.

33 The decisions of the Tribunal at first instance and the Tribunal's Appeal Panel are detailed above and have been carefully considered for present purposes.

34 This Tribunal's task is to determine whether the offences for which the Applicant was found guilty of committing constitute "serious assault offences" in accordance with the reasoning in the Appeal Panel's decision. Essentially that reasoning requires that the Tribunal only have regard to the actual circumstances of the relevant conduct insofar as was required to establish the assault offence, that is, for the purposes of the issue before it, only the objective conduct constituting the offence is relevant, not the whole circumstances of the case or the personal and mitigating factors ordinarily taken into account by a Judge in determining an appropriate penalty.

35 Accordingly, as the Applicant's submissions almost entirely concerned personal and mitigating factors, these factors could not be used in the manner contemplated by the Applicant in any sort of balancing or discretionary exercise, in order to determine whether his offensive acts, for which he pleaded and was found guilty, objectively constituted a `serious assault offence'.

36 As has been noted in the prior decisions neither the Act nor the Regulation define the phrase `serious assault offence'.

37 The offence the Applicant was found guilty of was s. 61 of the Crimes Act 1900 (NSW) which reads:

61 Common assault prosecuted by indictment

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

38 As can be seen from the terms of the offence, the offence was classified as a `common assault'. No definition of assault is to be found in the Crimes Act itself, nor is there any express category of offences termed "serious assault offences" (unlike the Queensland Criminal Code Act 1899 which provides both a definition of `assault' (s. 245) and a specific provision creating an express category of "serious assaults" (s. 340)).

39 `Assault' is defined in the Butterworths Australian Legal Dictionary (1997) as an act that intentionally or recklessly causes another to apprehend immediate and unlawful personal violence: Knight (1988) 35 A Crim R 314. `Common assault' is there defined as `an assault which does not result in any actual physical injury to the person assaulted. It can include both a threat of physical harm or an actual touching of the person assaulted. ....A common assault can be aggravated by reason of the consequences of the assault or the circumstances in which the assault occurred....'.

40 `Serious' is defined in the The Shorter Oxford English Dictionary (1992) as

`not light or superficial'... `not jesting, trifling or playful'; ..... weighty; important; grave; (of quantity or degree) considerable....'.

41 The Tribunal considers, following the reasoning of the Appeal Panel, that an assault can be considered a serious assault without the specific assault offence being expressly called a "serious assault offence" in the relevant legislation.

42 The Crimes Act does provide some assistance in indicating other forms of assaults the legislature appears to have considered potentially more weighty or grave by indicating such assaults attract heftier sentences. These assaults appear to include assaults committed upon particular persons such as police officers (s. 60), persons preserving wrecks (s. 57) and clergy (s. 56) or assaults resulting in harm of particular kinds (ss 59 & 60) or assaults involving forms of sexual or indecent assault (Division 10).

43 Considering point 8 at paragraph 10 above of the Appeal Panel's reasoning, not a great deal of assistance can be gained by considering the range of assault offences to which s 556A can apply. This is because it appears there is nothing in the Crimes Act (at least) which excludes the application of the provision. Accordingly as the provision can be applied to any offence under that Act, it can apply to any assault offence of any kind or description under that Act.

44 It is noted that amongst Nield, J's conclusions in his sentencing of the Applicant was that the conduct involved in the Applicant's offence was `serious'. Although the Judge was of course not applying his mind to the meaning of `serious' as it is featured in the Act's Regulation, his conclusion is considered relevant for present purposes.

45 In R v Henry the Court stated: `There is no doubt that impact on victims is an impact of the seriousness of an individual offence.' (per Spigelman, CJ at p. 168).

46 In the Tribunal's view it is conceivable that a common assault offence could fall anywhere along a continuum ranging from a trivial common assault offence to an extremely serious common assault offence (although to a victim any assault they have been subjected to might not be considered trivial, objectively viewed it may be so). Accordingly not all common assault offences are necessarily serious. A common assault offence may be considered `trivial' or `serious' to one degree or another depending on the factors present in the commission of the offence. In addition to the effect the assault has on its victim/s, some other factors might include: the vulnerability of the victim; the voluntariness or not of the offender's conduct; what is actually said or intimated by the offender; the offender's tone and volume of voice and the offender's appearance and bodily actions or gestures and the apparent degree of control or calm in the offender (his or her intensity and demeanour); the use or not of bodily force; the presence or not of weapon/s held by offender or victim; the nature and dangerousness of such weapon/s and the use, if any, that is made of such weapon/s. These factors are each capable of reasonably objective observation and an incident's triviality or seriousness may result from the presence of one factor or an aggregation of such factors.

47 Given that the Applicant pleaded guilty to the offence, the essential ingredients of the common assault offence can be taken to have been established. For present purposes what remains for determination is whether or not the Applicant's assault offence can be considered `serious' on its objective facts.

48 In this regard the Tribunal has considered the scenes of the incident, as portrayed by the evidence, in its entirety and then separately in its aural and visual forms, as if being seen and heard by an objective bystander. The Tribunal notes that the Court did not make detailed findings in relation to the two offences (as it did not need to). In the Tribunal's opinion the assault on the Manager consisted in the Applicant yelling angrily at the Manager threatening to kill him as he was leaving the Manager's office. The Manager became afraid because of the nature of the threat against him, the size and strength of the Applicant, the angry demeanour of the Applicant while making the threat, and that fear was compounded by his hearing the threat repeated from some distance and his learning that the Applicant had obtained a knife and was heading his way with it. In the Tribunal's view the actual threats on their own, made by the Applicant departing from the scene and some distance away from the Manager's office, do not by themselves make the assault on the Manager serious. In the Tribunal's view, the assault on the psychologist consists in his becoming fearful of harm once the Applicant had obtained a long bladed kitchen knife and had wielded it in a threatening manner towards the psychologist, even though the psychologist knew the Applicant's anger was directed at the Manager. It is noted that the Applicant, besides some pushing, did not resort to actual personal or brute physical violence of any kind. The Applicant did however proceed to arm himself with a weapon, and that weapon, a long kitchen knife, was potentially a very dangerous weapon. In the Tribunal's opinion, it is the introduction of the kitchen knife by the Applicant into the picture and the Applicant's use of it that establishes the assault upon the psychologist as serious and exacerbates and makes serious the assault on the Manager even though he was aware of the knife only from what he heard and was told. It was the Applicant's obtaining the knife and then subsequently using the knife in the manner he did that in the Tribunal's opinion renders his assaults on the two men to be objectively potentially very dangerous and therefore serious.

49 Considering the above findings the Tribunal considers that the correct and preferable decision in the circumstances is that the Applicant's application must be refused on the basis that the Applicant had 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 of a serious assault offence, pursuant to s. 16 of the Act read with clause 11 of the Regulation.

50 This Tribunal decided at the conclusion of the first hearing date to deal with the `serious assault' issue first before proceeding further with any of the other issues raised by the Applicant's application for review. Given the above decision of this Tribunal, the review of the Commissioner's decision need not proceed further to consider the discretionary grounds of refusal.

Decision

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

That part of the Commissioner's decision to refuse Mr Krzeminski's application for a security industry licence based on s. 16(1)(b) of the Security Industry Act is affirmed.