Fitzgibbon v Commissioner of Police, NSW Police [2004] NSWADT 12 (16 January 2004)

Last Updated: 16 January 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Fitzgibbon v Commissioner of Police, NSW Police [2004] NSWADT 12

PARTIES: APPLICANT

Thomas Anthony Fitzgibbon

RESPONDENT

Commissioner of Police, NSW Police

FILE NUMBERS: 033287

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 05/01/2004

DECISION DATE: 16/01/2004

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes Act 1900

Criminal Procedure Act 1986

Inclosed Lands Protection Act 1901

Security Industry Act 1997

Security Industry Regulation 1998

CASES CITED:

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

M Buchanan, solicitor

ORDERS: The Commissioner's decision to revoke Mr Fitzgibbon's class 1ABC security industry licence is affirmed

Reasons for Decision:

BACKGROUND

1 This is an application by Thomas Anthony Fitzgibbon ("Fitzgibbon") seeking review of the decision of a delegate of the Commissioner of Police ("the Commissioner") to revoke his class 1ABC security industry licence. The grounds on which the Commissioner revoked the licence was Fitzgibbon's conviction on 7 May 2003, at the Goulburn Local Court, of larceny contrary to s.117 of the Crimes Act 1900.

2 The parties have requested that the Tribunal determine the application on the papers. These papers consisting of Fitzgibbon's application for review and the Commissioner's brief of evidence.

3 The Tribunal has jurisdiction to determine this matter pursuant to s.29(1)(c) of the Security Industry Act 1997 and s.38 of the Administrative Decisions Tribunal Act 1997.

Relevant legislation

4 The Security Industry Act 1997 ("SI Act") provides for the licensing and regulation of persons in the security industry. Section 26 of that Act sets out the circumstances where a licence that has been issued under the Act can or must be revoked. So far as is relevant to this application, that section provides as follows:

"(1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused (underlining added).

5 Section 16 of the SI Act sets out the circumstances where an application for a security industry licence must be refused So far as is relevant to this application, that section provides as follows:

"s.16(1) 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 ten 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,...." (underlining added).

6 The offences that are prescribed for the purposes of s.16 are contained in Clause 11 of the Security Industry Regulation 1998 ("SI Regulation"). So far as is relevant to this application, that clause provides as follows:

"Cl.11. For the purposes of s.16(1)(a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(d) 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 three months or more".

7 Section 117 of the Crimes Act 1900 prescribes a maximum penalty of 5 years imprisonment for the offence of larceny if dealt with by way of indictment. Where such an offence is dealt with summarily, as it was in this case, the maximum penalty is 2 years imprisonment (see s.6 Criminal Procedure Act 1986).

Offence

8 According to the police fact sheet the circumstances surrounding the offence for which Fitzgibbon was convicted are as follows:

(a) In the early hours of the morning on 4 February 2003, Fitzgibbon and three other young males were seen removing an ornamental windmill from a stand located in the yard of a residential property.

(b) On being given a description of Fitzgibbon and the other three males, the police saw them carrying a silver object that looked like a small ornamental windmill. On seeing the police vehicle the police saw the young males drop the windmill onto the pavement and continue to walk ahead. The police then stopped and spoke to the four youths and took their details.

(c) The police then asked the four youths why they had possession of the ornamental windmill which had been reported stolen. In response the youths stated that they had found it in the street and one of them said he was going to hand it in to the police. The police seized the windmill and subsequently spoke to the occupier of the residential property. The owner identified the windmill as being that which had been taken from the stand in his yard. The windmill was not damaged and the owner informed the police that he would not be seeking compensation in regard to the incident.

(d) On 7 February 2003, Fitzgibbon was charged with an offence of entering inclosed land without lawful excuse contrary to s.4(1)(a) of the Inclosed Lands Protection Act 1901 and larceny contrary to s.117 of the Crimes Act 1900. The Tribunal notes that Fitzgibbon was the only person charged.

Licence history

9 Fitzgibbon was issued a class 1ABC security industry licence, on 15 September 2000. That licence was due to expire on 9 November 2005.

10 On 27 August 2003, the Commissioner issued a revocation notice, revoking Fitzgibbon's security industry licence.

11 As mentioned above the grounds on which the licence was revoked was Fitzgibbon's conviction for an offence of larceny on 7 May 2003 at the Goulburn Local Court.

12 On 22 September 2003, Fitzgibbon lodged an application for internal review of the Commissioner's decision. In his application for review Fitzgibbon stated that he was aged 21 years, that he was currently employed as a supervisor with a shopping centre and his duties involved maintenance, cleaning and general supervisory capacity. He has held this position for four years and as part of this position he obtained his security industry licence and his duties include the escort of cash and securities at the end of each day's trade to the banks. He also stated that without his licence his employment would be terminated. The effect of this was particularly severe as a young person in the area where he lives is unable to find work that easily. Furthermore, he stated that on obtaining his security industry licence he had determined to make the security industry his future career. He gave numerous examples of where he had been successful in obtaining additional security type work. He also stated that he was a hard working young person without dependents, that he resided with his mother and that his father died in tragic circumstances as a result of a work related incident when he was aged 11. He assists his mother in paying board and supplying some foodstuffs but is also saving for a home.

13 In support of his application for review, Fitzgibbon enclosed numerous character references. These references were from the following persons:

- Mrs Maureen Eddy, Deputy Mayor, Mulwarree Shire Council, dated 2 September 2003. Mrs Eddy states that she has known Fitzgibbon for ten years and that she knows him to be honest and hardworking with a very high sense of responsibility. Mrs Eddy in her reference makes reference to the offence for which Fitzgibbon was convicted.

- Carl Heath, Operations Manager, TDK Security, undated. Mr Heath states that Fitzgibbon has worked in an area of high trust in that he has had to move cash on a daily basis and he has done so without a single hiccup.

- Lionel Barber, of LJ Security, dated 10 September 2003. Mr Barber states that he has known Fitzgibbon for approximately four years and during that time he has found him to be honest and forthright in his dealings with him. He also vouches for his hard working and he makes reference to Fitzgibbon's conviction. He states that in his opinion, Fitzgibbon has "more than learnt his lesson and that the chance of him offending again in this manner is next to zero".

- Ms Debbie Walden, Office Administrator, Argyle Mall, dated 5 September 2003. Ms Walden states that she has known Fitzgibbon for two years and that he has proven to be honest and trustworthy in his role with Argyle Mall which includes handling cash for the management of the centre.

- Ms Margo Gallen, dated 9 September 2003. Ms Gallen states that she has known Fitzgibbon since October 2002 in his capacity as a security guard in transporting and depositing the school's banking. She goes on to state that she has found him to be absolutely reliable and polite in all his dealings.

- Mr Brad Blay, dated 5 September 2003. He states that he has known Fitzgibbon for four years and during this time he has worked along side him as a fellow security officer within the community. He makes reference to the convictions and states that he believes that these events are not part of Fitzgibbon's character and would be of a one off nature.

- Matthew Spilane of Cole Supermarkets, undated. Mr Spilane states that as an employee of Coles Supermarkets his duties include those of a Duty Manager from time to time. In his opinion Fitzgibbon is diligent, reliable, trustworthy and honest when performing security duties for Coles Supermarkets.

- Mr James William Saker, JP, undated. Mr Saker states that he has known Fitzgibbon for the past five years and in that time he has observed that he is a hardworking, conscientious individual and has found him to be professional and honest in all his dealings with him. He also states that Fitzgibbon is held in high esteem amongst his many friends and workmates.

- Ms Susan Young, Service Supervisor at Woolworths, undated. Ms Young states that she has known Fitzgibbon for two and a half years and during this period she has worked with him and has always found him to be completely honest and trustworthy. She also makes reference to Fitzgibbon's convictions and states that she is aware that he is remorseful for the incident that occurred.

- Mr David Schultz, a friend and work colleague, dated 2 September 2003. He states that he has known Fitzgibbon for five years and that he has the highest respect for him.

14 On 2 September 2003, another delegate of the Commissioner finalised the internal review and determined to affirm the earlier decision. In that internal review this delegate stated the following at paragraph 16:

"After taking into consideration all the relevant facts and information, I am satisfied that you were convicted of a prescribed disqualifying offence pursuant to Clause 11D of the Security Industry Regulation, 1998. In this regard and under the provisions of Section 26(1A) of the Security Act, 1997, no discretion exists for the revocation of your licence in your particular situation and I must concur with the decision of the delegate of the Commissioner and affirm the decision to revoke your licence".

Reasons and decision

15 The role of the Tribunal is to determine whether the Commissioner's decision is the correct and preferred decision having regard to all the relevant facts and the applicable law (see s.63(1) of the Administrative Decisions Tribunal Act 1997).

16 While the Tribunal accepts Fitzgibbon's contention that the circumstances surrounding his conviction were not a serious theft and that he is remorseful for having acted so foolishly, these are not matters which are relevant to this application.

17 The Tribunal also accepts that Fitzgibbon is otherwise a person of good character and repute. Again, this is not a matter which is of any relevance to this application.

18 While the consequences appear to be severe, Parliament has made it expressly clear that where a security industry licence holder has been convicted of a prescribed offence, the Commissioner is required to revoke that person's licence. That is, the Commissioner is given no discretion in this regard, he must revoke the licence. Accordingly, in this case the only matters of relevance for the purposes of sub-section 26(1A) of the SI Act are whether:

(a) Fitzgibbon has been convicted of an offence involving stealing;

(b) the offence of which he was convicted carried a maximum penalty of imprisonment for 3 months or more; and

(c) the conviction occurred less than 10 years ago.

19 In this case there is no question that each of the abovementioned facts are satisfied which means that the Commissioner had no alternative but to revoke Fitzgibbon's security industry licence. The Tribunal, which can only exercise the same powers as those that are available to the Commissioner also has no discretion.

20 On the basis of the abovementioned reasons, the Tribunal is of the opinion, that the Commissioner's decision was the correct and preferred decision.

21 Accordingly, the Tribunal orders that the Commissioner's decision to revoke Fitzgibbon's class 1ABC security industry licence is affirmed.