Applin v Stati [2005] WASC 145

Criminal law - Appeal against conviction - Breach of a condition attached to a crowd control agent's licence - Whether a standard trading session of a tavern is "any event or function" - Whether a crowd control agent and licensee of a tavern must give written notice of prescribed matters if crowd controllers are supplied to the tavern

Criminal law - Appeal against sentence - Spent conviction order

Interpretation Act 1984 (WA), s 44

Liquor Act 1988 (WA), s 3, s 3(1), s 35(3), s 48(2)

Security and Related Activities (Control) Act 1996 (WA), s 4, s 34, s 35, s 35(1), s 38(1), s 43, s 64, s 88, s 94

Security and Related Activities (Control) Regulations 1997 (WA)

Sentencing Act 1995 (WA), s 39(2), s 45

Brewer v Bayens (2002) 26 WAR 510

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Scott (1990) 20 NSWLR 72

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Smith v The Queen (1992) 7 WAR 527

Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18

1 This is an appeal from the decision of a Magistrate sitting in the then Court of Petty Sessions at Mandurah on 22 December 2004 whereby on complaint no MH 4390/03, being one count of breaching a condition attached to his crowd control agent's licence, the appellant was convicted, fined $750 and ordered to pay costs.

"1.1 The learned Magistrate erred in law in finding the trading of the Halls Head Tavern during its ordinary trading hours was an event or function to which the provisions of Clause 15 in Division 4 of Schedule 1 of the Security and related Activities (Control) Regulations 1997 applied.

1.2 Alternatively, the learned Magistrate erred in law in finding that there was an event or function at the Halls Head Tavern constituting an event or function at which a crowd control business was engaged to provide crowd controllers within the provisions of Clause 15 in Division 4 of Schedule 1 of the Security and Related Activities (Control) Regulations 1997.

1.3 Alternatively the learned Magistrate erred in law in finding George Arthur Applin as the crowd control agent on behalf of Bename Pty Ltd was obliged to give notice to himself as the approved manager of Halls Head Tavern.

1.4 Alternatively, the learned Magistrate erred in law in finding there was an engagement of a crowd control business in circumstances in which the provisions of Clause 15 in Division 4 of Schedule 1 of the Security and Related Activities (Control) Regulations 1997 applied.

1.5 The learned Magistrate imposed a sentence that was excessive in that he did not exercise his discretion to make a spent conviction order under the Sentencing Act 1995 (WA)."

3 The complaint alleged that on 2 October 2003 at Halls Head the appellant, being a licensed crowd control agent, breached a condition attached to that licence, in that he failed to provide prescribed information to a client, namely the Halls Head Tavern, as required by the Security and Related Activities (Control) Regulations 1997 (WA), ("the Regulations"), Sch 1, Div 4, cl 15 contrary to the Security and Related Activities (Control) Act 1996 (WA), ("the Act"), ss 64 and 88.

4 The appellant pleaded not guilty. A trial ensued at the conclusion of which the appellant was convicted of the offence and sentenced as detailed previously.

5 The Magistrate found that the "uncontested evidence" proved that at about 8.30 pm on 2 October 2003 the police went to the Halls Head Tavern. On that date, pursuant to the provisions of the Liquor Act 1988 (WA) ("the Liquor Act"), Bename Pty Ltd ("Bename") was the licensee of the tavern and the appellant was the approved manager.

6 The tavern was open. There was no specific entertainment, performance or amusement taking place. It was a standard trading session. As a consequence the tavern staff were serving drinks and performing other functions associated with the trading of a licensed tavern. Patrons were present using the services that were being provided. There were also persons at the premises performing the functions of crowd controllers as particularised in the Act, s 35. However, they were not required to be present as a condition of the tavern's liquor license.

7 The Magistrate further found that the appellant was a crowd control agent and that his licence was issued to him on behalf of Bename.

8 There was undisputed evidence that sometime prior to 2 October 2003 the appellant had employed crowd controllers without a crowd control agent's licence. One of the police witnesses had advised him that he had to obtain a crowd control agent's licence in order to enable him to legally employ crowd controllers. The appellant then obtained a licence. The evidence established that the appellant was first issued a crowd control agent's licence on 25 March 2002 on behalf of Bename Trading as the Halls Head Tavern. The police witness gave evidence that there was no objection to the appellant obtaining a licence to manage his own crowd controllers because he was not able to find "an adequate local company to provide him security staff".

9 The appellant did not give or call evidence. Thus the evidence that was before the Magistrate was that of the police officers. There was not any challenge to the credibility of the officers. The Magistrate appears to have accepted their evidence. The Magistrate concluded that the appellant had committed the offence as charged. The Magistrate did not expressly state the facts of the breach but the appellant does not dispute the facts upon which the respondent relied. These were that the appellant was asked by the police to produce the written records that are required to be given by a crowd control agent to a "person who engaged the business" pursuant to the Regulations, Sch 1, cl 15. The type of information required to be given is stated in the Regulations, which is quoted in full later in these reasons. The appellant did not produce that written notice to the police.

10 The appellant said that he would need to obtain records from his office. After approximately 10 minutes he took the police to his office. The police asked the appellant who was working that night on crowd control and he told them that he did not know. They asked him whether he had a roster and he said he did not and that he did the rosters at the end of the night. The appellant was asked whether he knew who was working and he said that "Brian" told him at the end of the night. Later he said "Brian sorted all of that out". There was evidence that Brian was the head doorman at the tavern. The appellant was asked whether Brian was the crowd control agent and he said no, he was. The appellant was asked how he knew that the persons working were licensed and he replied that he asked Brian to provide him with five licensed crowd controllers every Thursday night and Brian organised it.

11 The police asked the appellant to produce whatever written records he had and he produced two pieces of paper, each of which was tendered into evidence. The two pages consist of two incident reports dated 18 and 25 September respectively. The appellant said that he had other records at home. Another police officer said that the appellant was asked "how do you pay them?", meaning the crowd controllers, and the appellant replied "I pay them at the end of the night in cash".

12 On 15 October, as a consequence of a prior arrangement, the police met the appellant in his office. There he told them that he had only some time sheets. Two other handwritten pages were apparently admitted into evidence. They contain eight dates between 11 September 2003 and 27 September 2003. Under or alongside each date are names and numbers, presumably of crowd controllers.

13 There was no documentary evidence concerning the structure of Bename. In cross-examination some propositions about the company were put to one of the police witnesses. These propositions and his answers were as follows:

"And you knew of [the appellant] in relation to the Halls Head Tavern, did you not?---That's correct.

And you know that he is and was then the approved manager of that tavern?---Yes, I did.

And you also knew that a company, Bename Pty Ltd, in fact held the tavern licence in respect of the Halls Head operation?---Yes, that's correct.

And you were aware of the fact that it was [the appellant] who was indeed responsible for that company. He in effect ran that company - - it was his company - - ?---Yes, that's correct.

- - he being a director of that company?---I understand so, yes.

Yes. And a shareholder of that company?---I believe so. I don't know specifically, but - -

And in all the time that you've been associated with the affairs of the Halls Head tavern, and you've always understood that it was [the appellant] who ran that business?---Yes, that's correct."

The Law Relating to the Appeal against Conviction

14 An appeal from a decision of a Magistrate sitting as a Court of Petty Sessions will not be allowed unless an error has been made by the Magistrate that is such as to demonstrate that a miscarriage of justice has occurred, or, that the proceedings were fundamentally flawed: Smith v The Queen (1992) 7 WAR 527. There must be shown to be a link between any error made by the Magistrate and the conviction recorded.

15 There are a number of statutory provisions which it is necessary to consider in order to determine this appeal. These are primarily contained in the Act. The long title of the Act is:

"An Act to provide for the licensing of persons engaged in work relating to:

and of agents who supply the services of persons to carry out such work, to prohibit unauthorised persons from acting as armed bodyguards, and for related purposes."

16 Consistent with that title, the Act, ss 36 - 38 provide that crowd controllers and crowd control agents must be licensed and that a licensed crowd controller must not act as a crowd controller unless he or she is employed by a crowd control agent and that agent is specified in the crowd controller's licence. The Act, s 4 says that references to employment in the Act are to references to employment under a contract of service or apprenticeship.

17 The Act, s 34 defines a "crowd control agent" as a person who supplies the services of crowd controllers. Section 35(1) defines "crowd controller" to mean a person:

" ... who in respect of any licensed premises, place of entertainment, or public or private event or function, as part of his or her regular duties, performs for remuneration any function of -

(a) controlling or monitoring the behaviour of persons;

(b) screening persons seeking entry; or

(c) removing persons for behavioural reasons,

18 "Licensed premises" is defined to have the same meaning as given by the Liquor Act, s 3(1). There is no dispute that the Halls Head Tavern came within this definition.

19 Further, the Act, s 63 states that the Regulations to the Act may prescribe conditions and restrictions that are to be taken to be attached to licenses under the Act. Section 64 provides that a person must not fail to comply with the condition or restriction attached to a licence under the Act. Section 88 provides that it is an offence to, amongst other sections, contravene s 64.

20 The Act, s 94 provides that the Governor may make any Regulations prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of the Act.

21 The Regulations, reg 21 provides that the conditions and restrictions set out in Div 4 of Sch 1 are taken to be attached to all crowd control agent's licenses. Clause 15, which is part of div 4 of Sch 1, states:

"15. Information to clients

Before the start of any event or function at which a crowd control business is engaged to provide crowd controllers, the crowd control agent must give to the person who engaged the business a written notice setting out -

(a) the name and licence number of the crowd control agent;

(b) if the crowd control agent's licence is held on behalf of a partnership or body corporate, the name of the partnership or body corporate;

(c) the names and licence numbers of all crowd controllers employed in the business who will be performing crowd control activities at the event or function;

(d) the times during which each of those crowd controllers will be performing those activities; and

(e) a statement to the effect that the person who engaged the business is required by section 84 of the Act to retain the notice for 3 years."

22 Thus, the Act provides for the regulation of crowd controllers. It requires each of them to be licensed and employed by a crowd control agent who in turn must be licensed. Crowd controllers and agents who employ them are further regulated by conditions attached to licenses issued under the Act.

23 The first ground of appeal raises the issue as to whether a standard trading session of a licensed tavern is an "event or function" for the purposes of the Regulations, Sch 1, cl 15.

24 The appellant submits that the term "any event or function" in cl 15 refers back to the term "public or private event or function" in the Act, s 35 (see above). He says that a standard trading session at a licensed tavern is not a public or private event or function and therefore, cl 15 does not require notice to be given prior to a standard trading session at a licensed tavern.

25 The respondent submits that the words "any event or function" should be given their ordinary dictionary definitions. He says that there is no justification for giving the words the same meaning as the phrase "public or private event or function" in the Act, s 35. Further, even if the expression does have the same meaning as the latter expression in the Act there is no justification for giving the phrase a narrow meaning, excluding from it a standard trading session at a licensed tavern.

26 The respondent also submits that the narrow construction urged by the appellant would not further the purposes of the Act. He points to regs 39 and 40 which require an agent to keep an incident register to record each occasion upon which a crowd controller, amongst other things, removes a person from an event or function at which the crowd controller is carrying out crowd control activities. He also points to reg 41 which requires an agent to keep records in relation to every event or function for which it is engaged to provide crowd controllers. These records include the name of the person who engaged the business, the location of the event or function, the type of event or function and its date and time. There are no separate requirements relating to licensed premises and places of entertainment. So, the respondent points out, either these Regulations apply to licensed premises and places of entertainment or agents are not required to keep such records in respect to them. This latter possibility, the respondent submits, is contrary to the purpose of the Act and Regulations.

27 I turn first to the appellant's submission that the expression "any event or function" in reg 15 has the same meaning as the expression "public or private event or function" in s 35. Words and expressions used in regulations have the same respective meanings as in the statute under which the regulations were made: Interpretation Act 1984 (WA), s 44. This is to avoid the need to redefine words and expressions used in the statute: Pearce D and Argument S, "Delegated Legislation in Australia", 2nd ed, 1999 at 345. The difficulty with the appellant's submission is that cl 15 does not use the same expression as that used in the Act, s 35. If it did his submission would be unquestionably correct.

28 Secondly, even if I assume that the expression "any event or function" in cl 15 is a shorthand way of saying "public or private event or function", in order to avoid liability the appellant still needs to persuade me that the expression does not include a standard trading session at a licensed tavern. The appellant submits that this is the case for at least one of two reasons. The first being that the three expressions used in s 35 are disjunctive and exclusive. The second being that a standard session at a licensed tavern does not fall within the definition of the expression "event or function".

29 As to the first of these submissions, the appellant did not refer to any authority to support this interpretation. There is no persuasive reason to interpret the section in this way. To do so would be to create difficulties that would not otherwise exist. For example, if, as the appellant submits, the expression "public or private event or function" excludes anything occurring on licensed premises and this definition applies to the expression "any event or function" in cl 15 then it is difficult to see how cl 15 could ever apply to a licensed tavern.

30 It is not unusual for there to be an overlap between words used in a section. This appears to be the case in respect to s 35. I note that the first two expressions used in the section are places whereas the last expression refers to different occasions. Logically a function or event may be held at licensed premises or a place of entertainment. It appears to me that the categories referred to in s 35 are not mutually exclusive. The expressions "licensed premises", "place of entertainment" and "public or private event or function" may overlap in the sense that the latter may well be held in the former two places.

31 Thus, even accepting that "any event or function" in cl 15 should be given the same meaning as the words in the Act, s 35, the syntax of s 35 does not give me much, if any assistance, in determining what that meaning is.

32 As to the second submission, the appellant attempted to establish that the words in the expression "any event or function" have a specialised meaning because they are used in the Liquor Act and the Regulations made thereunder to mean particular types of functions and events. He submitted that they should have the same meaning in the Act.

33 The Liquor Act, s 3 defines "a function" for the purposes of that Act to mean "a gathering, occasion or event (including a sporting contest, show, exhibition, trade or other fair or reception) at which it is proposed that liquor be sold or supplied to those present". The word is not used extensively in the Liquor Act but when it is used it does not appear to refer to the usual trading at licensed premises. For example, the Liquor Act, s 48(2) states that a club license authorises the sale of liquor to a member and to the guests of that member in the company of that member for consumption on the licensed premises. The subsection goes on to say that it also authorises the sale of liquor to a member, for consumption by the guests of that member at a function held by or on behalf of that member at the club.

34 "Event" is not defined in the Liquor Act but it is used in the Act to denote a specific occasion. It is also used as part of the definition of "a function".

35 In my opinion it is not open to me to assume that "function" and "event" have the same meanings in the Act and Regulations as they do in the Liquor Act. First, the Acts are not in pari materia or, in other words, analogous to one another. The Liquor Act is an Act to regulate the sale, supply and consumption of liquor and for other related matters. The Act has a very different scope and applies to premises other than those on which liquor is consumed. If I was to adopt the definition of "function" from the Liquor Act only functions at which liquor was to be sold or supplied would be included in the Act and Regulations.

36 Secondly, the Acts do not form a scheme of legislation.

37 Thirdly, there is no indication in either Act that they are to be generally read together. Apart from providing that the term "licensed premises" is to have the same meaning in both Acts, the Act does not make reference to the Liquor Act. In the Liquor Act there is an interpretation section but its definitions are said only to apply to "this Act". Indeed, it is arguable that the failure of the legislature in the Act to expressly apply the definition of "a function" in the Liquor Act is an indication that Parliament intended the term to have a specific meaning in the latter Act but its ordinary meaning in the former Act: R v Scott (1990) 20 NSWLR 72 at 77.

38 Consequently, in my view the words in the expressions "any event or function" in the Regulations and "public or private event or function" in the Act do not have the technical or specialised meaning contended for by the appellant.

39 An alternative submission made on behalf of the appellant is that "any event or function" at licensed premises is only one at which a licensee is obliged by law to have crowd controllers present. For example, it is a condition of Bename's Tavern licence that when the tavern is putting on adult entertainment at least two crowd controllers or security persons must be on duty for the duration of every performance. Again, I do not agree with this submission. There is no provision in the Act or Regulations which indicates that "any event or function" is limited to those events or functions at which, by another law or as a condition of a licence, crowd controllers are required to be employed.

40 In my opinion, in order to determine whether a standard trading session of a licensed tavern is "any event or function" for the purpose of cl 15 the component words should be given their plain and ordinary meaning, having regard to the context in which the expression is used in the Regulations and the Act.

41 To determine the meaning I will begin by considering the dictionary definitions of "event" and "function".

42 The second definition of the noun, "event" in the "Oxford English Dictionary", 2nd ed, 1989, appears to be most relevant. It is, "anything that happens, or is contemplated as happening; an incident, occurrence". The dictionary says that in modern usage the word is chiefly restricted to occurrences of some importance. The "Macquarie Dictionary", 3rd ed, 1997 definition is very similar. It is "anything that happens or is regarded as happening; an occurrence especially one of some importance".

43 In respect to, the noun, "function" the most relevant definition in the "Oxford English Dictionary", 2nd ed, 1989, seems to be a "public ceremony; a social or festive meeting conducted with form and ceremony". In the "Macquarie Dictionary", 3rd ed, 1997, the relevant definition is "any ceremonious public or social gathering or occasion". The "Oxford English Dictionary", 2nd ed, 1989, states that "ceremonious" means "according to prescribed or customary formalities or punctilios".

44 The preceding word "any" governs both "event" and "function". It thus indicates that any event or function, without limitation as to what sort of function or event it is, is included within the obligation in the regulation. Arguably the use of "any" could be a reference back to s 35 and the words "public or private". However, if that had been intended I would have thought that "any" would not have been the word used because it denotes not just two sorts of functions or events, that is private or public, but whatever number of different sorts of functions and events that can be held.

45 Taking into account these definitions it does not seem to me that the standard trading session that was occurring on the evening of 2 October 2003 at the Halls Head Tavern could be regarded as a function. There was no evidence that the session was being conducted with any kind of ceremony.

46 It is more difficult to determine whether the trading session was an event. Although the dictionary definitions state that the word specially denotes an important occasion, they do not say that it only denotes such occasions. Given that the word is preceded by "any" I am of the view that Parliament did not intend to limit the meaning of the word to important occasions.

47 Any trading session of a licensed tavern, whether it be for two or twelve hours, is an occurrence which occurs at a specified place for the purposes of sociable meeting of people as well as the consumption of liquid, usually liquor. Thus, in my opinion, it is an event.

48 I have also had regard to the purpose of the Act and thus the Regulations made under it. The Interpretation Act 1994 (WA), s 18 states that in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law, whether that purpose or object is expressly stated in the written law or not shall be preferred to a construction that would not promote that purpose or object. I have already referred to the long title of the Act. Additionally, in the Second Reading speech in the Western Australian Legislative Assembly Hansard, 8 December 1994, p 9272, the relevant Minister said:

"In recent years widespread community concern has been expressed that the crowd control industry has been infiltrated by persons with the propensity to violence. This has been highlighted by incidents over the past year at nightclubs and licensed premises where crowd controllers, through inappropriate, aggressive behaviour have been convicted for assaults on members of the public. This legislation will ensure the proper licensing and control of the crowd control industry."

49 I discern from this statement and the long title that the purpose of the Act is to ensure the proper licensing and control of persons involved in the crowd control industry at places including nightclubs and licensed premises. This purpose would be promoted by interpreting "any event or function" in reg 15 broadly to include within the definition of "any event" any occasion upon which or occurrence at which crowd controllers were engaged to perform crowd control functions. This would include when they were employed to perform such duties at licensed taverns during normal trading hours. Thus the trading is something which is happening, and to some people, it is an occurrence of some importance.

50 I concluded that the Magistrate did not err when he found that the trading of the Halls Head Tavern on the evening of 2 October 2003 was "any event or function" to which the provisions of the Regulations, Sch 1, cl 15 applied.

Grounds of Appeal 1.2 and 1.4 - Engage the Business

51 The appellant submits that Bename does not conduct a crowd control business and does not supply crowd controllers to any person or corporation other than itself. He submits that in this factual situation where it was employing crowd controllers for its own use there was no "person who engaged the business". Thus no one to whom notice had to be given by the appellant pursuant to Regulation, Sch 1 cl 15.

52 The respondent submits that it is apparent from the statutory scheme that every crowd control agent is said to have a "business". This business is the employment of crowd controllers whose services are supplied for the purpose of crowd control: the Act, ss 34 and 38.

53 It does not seem to me that the appellant can avoid liability under the Regulations in this manner. By obtaining a crowd control agent's licence and employing crowd controllers for the purpose of supplying those crowd controllers to himself or Bename he was subjecting himself to the requirements placed on crowd control agents. The alternative, it seems to me, is the situation that was operating prior to him obtaining his crowd control agent's licence. That is, he was unlicensed and employing crowd controllers in contravention of the Act. The scheme of the Act is that only a crowd control agent may supply crowd controllers. Every time a crowd control agent supplies crowd controllers, whether that be to himself, the company on whose behalf he holds the licence or to an independent person or corporation, his business or that of the company on whose behalf he holds the crowd control agent's license has been engaged to supply those crowd controllers.

54 "Engaged" is a word that can denote a formal contract. However that is not necessarily the case. The "Oxford English Dictionary", 2nd ed, 1989, states that one meaning of the verb "engage" is "to bind by a contract or formal promise". It goes on to say that in modern usage it also means "to have promised ones presence, made an appointment, etcetera, for any purpose of business or pleasure". I see no reason why this latter definition may not be used so that the person to whom written notice has to be given under cl 15 is to the person to whom the agent has promised or undertaken to supply crowd controllers for the purpose of crowd control.

55 The obligation created by cl 15 only arises if a crowd control business is engaged to provide crowd controllers. The appellant submits that he does not operate a crowd control business. "Business" is defined in the Regulations to mean, if the agent's licence is held on behalf of a body corporate, the business of the body corporate. The appellant further submits that Bename does not conduct a crowd control business and in this factual situation was not engaged by any other person or body to provide crowd controllers.

56 The statutory definition of business is not a comprehensive definition of the "business". The statutory definition merely indicates whose business is being referred to rather than what that business is.

57 "Business" is not defined in the Act. However, the term is used in the Act, for example in s 43, to refer to the work that is carried on under the crowd control agent's licence. The word is used in the Regulations in the same sense.

58 The "Oxford English Dictionary", 2nd ed, 1989, relevantly defines "business" to mean "that about which one is busy". The dictionary lists many different senses of this meaning including "a particular occupation; a trade or profession". Similarly the primary definition of "business" in the Macquarie Dictionary is "one's occupation, profession or trade".

59 Further, it is relevant to note that the expression used in cl 15 is "the business". In my opinion this is a reference to the particular crowd control agent's occupation as a crowd control agent. The fact that a person is a licensed crowd control agent is prima facie evidence that the licensee has a business of employing and supplying crowd controllers. It may be possible to prove by evidence that a licensee did not operate such a business, that is that they were not engaged in employing or supplying crowd controllers.

60 In this case there was evidence that the appellant, on behalf of Bename became a crowd control agent so he could employ crowd controllers for the purpose of supplying them to the Halls Head Tavern and that he did so employ and supply them on 2 October. There was no evidence as to whether the appellant supplied crowd controllers to others. Even if he did not it was still Bename's business to employ the crowd controllers for the purpose of supplying them to itself. In my opinion there was sufficient evidence from which the Magistrate could conclude that Bename operated a crowd control business. It may well be the case that it also operated a business known as the Halls Head Tavern but that evidence did not detract from the fact that it was also carrying out work as a crowd control agent. In my opinion there is no necessity for reading the expression "the business" as being anything more than that work.

61 It is true, as the respondent concedes that the concept of Bename Pty Ltd trading as the Halls Head Tavern engaging the appellant on behalf of Bename to supply crowd controllers is rather artificial. Nevertheless, it is my view that the scheme of the Act is such that any licensee who supplies crowd controllers named on his licence for the purposes of carrying out crowd control activities whether it be to a person or corporation associated with the agent or independent of the agent is required to comply with the provisions of the Regulations, including cl 15.

62 An additional matter is raised by the appellant in his written submissions. It is to the effect that the crowd controllers at the Halls Head Tavern were not employed by him in a crowd control capacity within the meaning of the Regulations, Sch 1, cl 15(c) and the Act, s 4 "under a contract of service".

63 Clause 15(c) requires notice to be given of all crowd controllers "employed in the business" who will be performing crowd control activities at the event or function. The Act, s 4 states that in the Act, and thus the Regulations, references to employment are to employment under a contract of service or apprenticeship. The Act, s 38(1) provides that a licensed crowd controller must not act as such unless he or she does so as an employee of a crowd control agent and that crowd control agent is specified in the person's licence.

64 The evidence before the Magistrate was that there were crowd controllers on duty performing crowd control activities at the Halls Head Tavern on this particular evening and that the appellant admitted to being the crowd control agent. He further admitted to organising the presence of the crowd controllers, through Brian, and that he would pay them at the end of the evening. Given this evidence and the lack of any evidence to the contrary the Magistrate was entitled to infer that the appellant was engaged to provide crowd controllers on this particular evening. Therefore the obligation in Sch 1 cl 15 arose. That obligation was not complied with and thus an offence was committed. The question as to whose names and licence numbers should have been on the notice simply did not arise for determination by the Magistrate.

65 However, I point out that this submission highlights the importance of compliance with cl 15. If the appellant was supplying crowd controllers who were not employed by him in the statutory sense and he had been forced to acknowledge this fact in a written notice provided under cl 15 it may have prompted him to take his responsibilities as a crowd control agent more seriously.

66 The appellant submits that where the approved manager of the licensed premises and the crowd control agent are the same person, as in this case, it would be a nonsensical interpretation of the Regulations to require the crowd control agent to give written notice to himself prior to each day and/or nights trading.

67 I agree that it would be nonsensical to read this requirement as obliging the appellant to hand himself a written notice. However, it seems to me, that the obligation in cl 15 would be satisfied if the crowd control agent had prepared a written notice or document setting out the matters in cl 15. It was not in dispute in the trial that the appellant did not prepare such a written notice for Bename.

Ground of Appeal 1.5 - Appeal against Sentence

68 The appellant submits that the Magistrate erred in refusing to make a spent conviction order.

69 After the Magistrate convicted and fined the appellant, the appellant's counsel applied for a spent conviction order. He relied upon the appellant's good character, the unlikelihood of him offending in the future and the fact that it was not "a glaring or serious omission on his part".

70 In his decision, the Magistrate determined that the offence was not a trivial one although he accepted that it was not as serious as some breaches which might occur. He did not elaborate on why it was not a trivial breach although earlier he had mentioned the highly regulated nature of the industry. The Magistrate then said that only the future would tell whether the appellant was unlikely to commit an offence of this kind in the future. He said "because of the factors, I said this is a highly regulated industry, I don't believe it is appropriate in the circumstances to make a spent conviction order".

71 In order for the appellant to succeed on this ground of appeal it must be shown that there was some error made in the exercise of the Magistrate's discretion to decline to make a spent conviction order: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

72 The discretion to grant a spent conviction order is given by the Sentencing Act 1995 (WA), s 39(2) and s 45. Section 39(2) provides that a sentencing option available in respect to a natural person is a fine and a spent conviction order. Section 45 states:

"(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers that the offender is unlikely to commit such an offence again; and

(b) having regard to -

(i) the fact that the offence is trivial; or

(ii) the previous good character of the offender,

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender."

73 Thus, a spent conviction order can only be made if the court considers that the offender is unlikely to commit such an offence again. Additionally, the court must be satisfied that it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on him or her because either the offence is trivial or the offender is of prior good character.

74 The circumstances in which it is appropriate for a judicial officer to exercise the discretion to grant a spent conviction order have been considered in R v Tognini [2000] WASCA 31; (2000) 22 WAR 291. Murray J, with whom Malcolm CJ and Wallwork J agreed, said at [27] - [28]:

"In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."

75 I infer from the Magistrate's comments that he considered the issue but did not conclude that the appellant was unlikely to commit an offence of this kind in the future. He said that only the future could determine whether that was so. Unless the Magistrate was wrong in his conclusion this ground of appeal must fail.

76 The appellant relies upon his prior good record and the unusual circumstance of the commission of the offence to establish that he was unlikely to commit an offence of this nature in the future.

77 As against those factors, there was evidence before the Magistrate that prior to the appellant becoming a licensed crowd control agent he had been employing crowd controllers. As a consequence he was advised by the police that he had to become a licensed crowd control agent if he wished to employ crowd controllers. He subsequently became a licensed crowd control agent but the evidence showed that he paid scant regard to his obligations under the Act and the Regulations. Further there was no evidence of remorse for his offending.

78 As to the circumstances of the offence, during sentencing submissions, the Magistrate pointed out that whilst there were differences between the facts of this case and the situation where an independent crowd control agent was engaged to provide crowd controllers the obligations which arose in this factual situation were the same as those where there was an independent crowd control agent engaged. The obligations included providing written notice so that there was an appropriate record of the names and details of the crowd controllers prior to them starting work. In this case there was no record made at any time before, during or, it seems, after the evening of these details. Neither did it appear to be a one off offence.

79 Given these facts I am not satisfied that the Magistrate erred in failing to conclude that the appellant was unlikely to commit an offence of this kind in the future.

80 However, in case I am wrong in this conclusion I will go on to consider the other limbs of s 45.

81 The first is whether the offence was trivial. As I have said, the Magistrate concluded that it was not a trivial offence.

82 In my opinion the Magistrate was correct in this conclusion. The question as to whether an offence is trivial must be "ascertained by reference to the conduct which constitutes the offence for which the offender was convicted and to the actual circumstances in which the offence was committed": Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18 at [17]. The facts of this case disclose that the appellant did not have any written record of the matters particularised in Sch 1 cl 15. It was submitted by the appellant that because the employment of the crowd controllers was "in-house" the appellant "had knowledge and information regarding the crowd controllers he hired and paid each night". However, the evidence before the Magistrate was to the effect that the appellant did not know the names of the crowd controllers that he employed on this evening and would not know until the end of the night. Thus the object of cl 15 had been negated by the appellant's offending behaviour. In these circumstances the offence was not trivial.

83 However, as it was not in dispute that the appellant was otherwise of good character the finding that this was not a trivial offence was not fatal to the appellant's application for a spent conviction order. He only had to satisfy the court that having regard to his previous good character he should be relieved immediately of the adverse affect that the conviction might have on him.

84 The appellant submits that the conviction may effect his entitlement to be an approved manager and his ability to be involved in licensed premises. However, there was no evidence regarding this before either the Magistrate or before me. The only information I have is that provided by the Liquor Act, s 35(3) to the effect that the approval of a person as an approved manager of licensed premises may be withdrawn if the manager has failed to conduct licensed premises in a proper manner or the conduct of the manager shows he or she is not a suitable person to manage licensed premises. I do not know whether the appellant is at risk as a consequence of this conviction of having his approval withdrawn.

85 In Brewer v Bayens (2002) 26 WAR 510 at [14] Burchett AUJ, with whom Wallwork and Wheeler JJ agreed said:

"Bearing in mind the special nature of the jurisdiction to grant this relief, and the clear case the Full Court has said must be shown, it is to be expected that generally those who contend they come within the conditions laid down in s 45 will demonstrate that fact by convincing evidence."

86 In the absence of evidence that the conviction was likely to have an adverse effect on the appellant's involvement in licensed premises, I am not prepared to conclude that the appellant should be relieved immediately of the adverse affect that the conviction might have on him.

87 Further, this is an appropriate case for the Court to take into account the wider interests of the public referred to in Brewer v Bayens (supra). At [18] - [19] Burchett AUJ said:

"One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from responses to enquiries, and placing a legal impediment in the way of some enquiries. The Court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, too, 'the preservation of confidence in the judicial system' requires publicity: see R v Tait (1979) 46 FLR 386 at 401, per Brennan, Deane and Gallop JJ. As their Honours also said: 'To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction.'

Another aspect of the problem is the effect an order under s 39 of the Sentencing Act may have on those who may legitimately require to take account of the conviction or the charge to which it relates. In the present case, the appellant's research, or the pursuit of his profession, may bring him into close contact with the impressionable minds of the very young. That is why the committees to which reference has been made may be concerned to consider his conduct. I cannot think it to be in the public interest, in the circumstances of this case, to make an order the object of which would be to ensure that they did so wearing blinkers."

88 In my opinion the principles that can be discerned from these comments apply to this case, although the facts differ. Their relevance is a further reason why I do not consider that it is appropriate for the appellant to be immediately relieved of the adverse affects that the conviction might have on him.