Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9
Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
Source
Original judgment source is linked above.
Catchwords
Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director of Public Prosecutions v Smith (1991) 1 VR 63Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Ekila v Commissioner of Police, New South Wales Police Force [2019] NSWCATOD 150
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Farquharson v Director-General, Department of Transport [1999] NSWADT 53
Fakhouri v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 117
Feuerstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114
Fitton v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2007] NSWADT 72
Habib v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 48
Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6
Hardy v Commissioner of Police, New South Wales Police Force [2006] NSWADT 167
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245
IJ v Commissioner of Police, New South Wales Police Force [2003] NSWADT 230
Infarinato v Commissioner of Police, New South Wales Police Force [2004] NSWADT 43
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
O'Neill v Commissioner of Police, New South Wales Police Service [2005] NSWADT 130
O'Sullivan v Farrer (1989) 168 CLR 210
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Judgment (5 paragraphs)
[1]
The applicant's conduct
It is not disputed that the evidence, consideration and findings of the tribunal in the 2019 hearing remain relevant for the purposes of the present application.
At the hearing of the present application, as well as the 2019 hearing, the respondent's evidence on the "fit and proper" question consisted of a record containing a substantial number of driving offences, some of them extremely serious.
Having obtained his learner licence in July 2015, he incurred his first fine, for failure to display L signs, three months later. Thereafter he accumulated 10 speeding offences between 20 July 2016 and 4 February 2019, three L or P plate contraventions, two traffic light violations and one bus lane and one improper turning infringement.
He incurred three demerit points suspensions, from 3 January 2017 to 6 May 2017, from 9 May 2017 to 12 September 2017 and from 14 September 2017 to 18 January 2018. As will be seen, the suspension periods followed in close succession and almost overlapped.
From 15 May 2018 to 14 August 2018, his New South Wales driving privileges were withdrawn on the ground that he was not a fit and proper person to exercise them. He was under disqualification from driving, commencing on 17 February 2019 and continuing to 6 August 2020, in relation to the police pursuit and manner dangerous convictions, of which more is said below. On 7 May 2018, at Bankstown Local Court he was placed under two intensive correction orders, one for 6 months and the other for 14 months. The latter expired on 16 March 2020.
Further, on 12 April 2019 he was charged with driving while disqualified. That charge had not been heard at the time of the 2019 hearing, but he was shortly afterwards dealt with at Bankstown Local Court on 27 June 2019, which imposed an intensive correction order for eight months and ordered the applicant to perform 75 hours of community service. A one-year licence disqualification was also imposed.
Of particular concern are two episodes, the first of which occurred on 4 January 2018 (charge No. H66790019). Police observed the applicant driving a Toyota Aurion on King George's Road, Beverly Hills and decided to stop the vehicle for a random breath test. Once the vehicle had stopped, the fact sheet records, police observed the accused and his front seat passenger climbing over each other and switching seating. The officers approached the front passenger window to speak to the applicant and observed him to be breathing heavily and shaking. The applicant initially refused to take a breath test, saying that he had not been driving.
On further questioning about the switching of seats, the applicant admitted that he knew he was a suspended driver, but claimed that he had not driven that day and that police were mistaken. Police then asked the front seat passenger, Mohamed Jaelouk, some questions about the incident. Jaelouk kept smiling, laughing and looking back at his companions during questioning, maintaining that he had been the driver the whole time. Throughout the encounter, the applicant was not cooperative when interacting with police.
At the 2019 hearing he admitted that he had been driving the car to Hurstville in order to help his cousins, who were passengers in the car, even though the eldest, Mr Jaelouk, held a current license and was entitled to drive the vehicle.
The other matter of particular concern was the incident on 7 May 2018 (charge No. H 68469279), which resulted in three charges, not stopping and engaging in a police pursuit, exceeding the speed limit by an estimated more than 45 km/h and driving recklessly/furiously or in a manner dangerous. The fact sheet relates that while they were following the applicant's Toyota Aurion on Gibson Avenue, Padstow, they observed that he had increased his speed to no less than 80 km/h in 60 km/h zone, before overtaking a car on its left-hand side at speed.
Police then activated their warning devices and began gaining on the accused, who entered a roundabout at high speed and continued in a heavily pedestrian area signposted at 40 km/h. He travelled up the road at no less than 90 km/h, becoming airborne over a pedestrian crossing and again over a speed hump. A pedestrian walked onto the roadway into the accused's lane, where he was seen to cross unbroken lane lines onto the wrong side of the road without slowing and passed the pedestrian while still travelling at more than 90 km/h. He then turned left onto a street signposted at 50 km/h and travelled down that street at a speed of no less than 120 km/h. At that point police caught up to the accused and it was clear that he was disregarding the police direction to stop.
The applicant then turned onto another road that was congested with traffic, changing lanes several times and reaching speeds of no less than 130 km/h and no more than 140 km/h in the area signposted at 70 km/h. When his progress was blocked by a truck, police were able to remove him from the car and arrest him. When questioned in relation to his driving, he said that "I was just driving normal".
At the time of the offence the applicant had a female passenger, who was his sister. Police thought his speed could only be described as extremely dangerous to the public. He had approached the pedestrian crossing at such speed that if someone had walked onto it he could never have stopped. "It was only by sheer luck that the accused [the applicant] was able to cross to the incorrect side of the road to avoid the pedestrian. An impact with a pedestrian at that speed would undoubtedly have resulted in a fatality", the fact sheet stated.
Police said that while he was driving along Banks Street, a number of persons were observed in close proximity to the edge of the road, walking from the station to their parked cars. The applicant had shown no regard for the safety of any of those persons or to the welfare of his passenger, whose life he also put in extreme danger.
The respondent's evidence on the "fit and proper" question does not involve any misconduct in the course of his security guard duties, or any instance of violence, threatened violence or sexual misconduct. It consists of a catalogue of driving offences, but of such an extent, gravity and frequency as to constitute an extraordinarily bad record pointing to a degree of contempt for the law, especially as several of them included an attempt to mislead the police.
[2]
The public interest
The alternative ground for refusing the issue of a security licence to the applicant is that it is not in the public interest for the applicant to hold it.
In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence under the SI Act, the appeal panel described the public interest ground in the SI Act in the following terms:
[A]n inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be "for the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In the context of this regulatory scheme, the purpose and scope of the legislation is the attainment of a professional and safe security industry, free from persons who engage in unprofessional and irresponsible conduct. Paramount consideration is to be given to public safety: Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43, [18].
That being so, the applicant's personal interest in retaining his licence cannot outweigh the public interest in maintaining full confidence in the professionalism of those involved in the industry. Nor should the decision-maker shy from exercising the discretion merely on the ground that the licensee or his dependants may suffer hardship or inconvenience or both. All the circumstances of the conduct must be taken into account: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22]; Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114, [32].
[3]
Evaluation and conclusion
As was noted above, the respondent's evidence on the "fit and proper" question does not involve any misconduct in the course of his security guard duties, or any instance of violence, threatened violence or sexual misconduct. He has no drug or alcohol offences. His acts of dishonesty formed part of his rampage through the traffic laws of New South Wales and there is no instance of fraudulent behaviour in his other dealings or activities.
Nevertheless, his record consists of a catalogue of driving offences of such an extent, gravity and frequency as to constitute an extraordinarily bad history which he himself described as "atrocious". It points to a degree of contempt for the law, especially as several of his violations included an attempt to mislead the police. The criminal justice system gave him many second and subsequent chances, which he chose to waste.
His repeatedly demonstrated disregard for the law and for the safety of others, coupled with his willingness to attempt to deceive in order to escape the consequences of his wrongdoing, showed that he had behaved as a person from whom the public needed protection. He lacked the qualities of behaviour needed to make him a fit and proper person to hold the licence in question. In particular, he did not satisfy the higher standard required of persons licensed in the security industry, given its special role in maintaining public order, in protecting property and in ensuring public safety and community values.
A member of the public at the time of the 2019 hearing knowing only the applicant's record of contempt for the traffic laws and public safety, and on one occasion of driving in a manner seriously dangerous to the public in order to evade police, together with an instance of resorting to deceit in an attempt to escape responsibility for his transgressions, would have objected to the applicant performing the licensed activities: Farquharson v Director-General, Department of Transport [1999] NSWADT 53, [37]. The
The applicant's record of offences as catalogued in connexion with the issue of fitness and propriety is also relevant to the public interest question. It reveals a pattern of repeated disregard of the law, including several instances of driving while suspended or disqualified. There is no doubt that refusal of his security licence in 2019 was the only possible decision on the available evidence, and in the present hearing the applicant himself appeared to accept that.
[4]
Orders
1. Decision under review set aside.
2. A class 1ACE security licence is to issue to the applicant, subject to a condition to the effect that "If the licence holder accumulates 5 or more driver demerit points before 31 December 2021, the Commissioner may summarily revoke his security licence".
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 January 2021
The applicant Mr Mohammed Fakhouri applied to this tribunal on 13 October 2020 for review of a decision by the respondent Commissioner on 18 September 2020 to refuse him the grant of a class 1ACE security licence under the provisions of the Security Industry Act 1997 (SI Act). The application was refused on the grounds that the applicant was considered not to be a fit and proper person to hold a security licence and that the grant of a licence to him would be contrary to the public interest.
The applicant was issued with his initial class 1ACE security licence, No. 00022110, on 11 November 2015. On 3 January 2018, he applied to renew the licence, and a new licence was issued on 15 January 2018, expiring on 10 January 2019. On 4 January 2019, he lodged an online renewal application. As the renewal application was lodged before the licence expired, he was authorized to continue to perform the functions previously authorized on the licence.
In the meantime, the applicant had accumulated a number of serious traffic violations, including driving in a manner dangerous, and on 22 January 2019 his security licence was revoked. He requested an internal review of the revocation decision, but that decision was affirmed on 18 February 2019.
He applied to this tribunal for a review of that decision, which came on for hearing before me on 6 June 2019. On 14 June 2019, I delivered a decision in Fakhouri v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 117 (the 2019 decision) affirming the revocation decision on the grounds of fitness and propriety and public interest.
Having been found guilty of driving while disqualified on 27 June 2019, and being made subject to an intensive correction order for eight months with 75 hours of community service, he applied for a new class 1ACE security licence on 16 July 2019. That application was refused on 21 November 2019, and the refusal was affirmed following an internal review on 12 December 2019.
Mr Fakhouri applied once again for a class 1ACE security licence on 6 July 2020, that application being refused on 19 August 2020 and the refusal affirmed on 18 September 2020. He then applied to this tribunal for review of that refusal on 13 October 2020.
Respondent's submissions
The respondent relied on written submissions (exhibit R2) which began by setting out the applicant's admittedly "atrocious" driving record. That did not, however, give the full picture, the respondent said, and better insight into the seriousness of the offences and of the applicant's character was to be found in the fact sheets for the most serious offences.
The fact sheet for charge H66790019 (exhibit R1, pp 32 - 34) described how on 4 January 2018, when police stopped the applicant for a breath test, he was observed to rather amateurishly initially switch seats with his front seat passenger in order to avoid the consequences of his actions. He continued to try to bluff it out with police, denying that he was the driver. He was charged with driving while suspended.
Charge H68469279 (id., 35 - 38) involved a police pursuit on 7 May 2018, with the applicant driving dangerously and at a speed of over 140 km/h in a 70 zone. His vehicle twice became airborne during the chase. His sister was a passenger in the car and a pedestrian was placed in actual danger. Other persons in the area were placed at risk. When stopped, he said "I was just driving normal". He was charged with a police pursuit, not stopping and driving dangerously. At that time he had been using his Queensland licence.
Charge H68608050 (id., 39 - 41) saw the applicant on 1 August 2018 driving in a bus lane and again attempting to bluff it out with police, producing his Queensland licence. Enquiries at the police station revealed that he was under a 3-months disqualification that was still operative. He was charged with driving while disqualified and driving in a bus lane, and granted bail.
Charge H70729132 (id., 42 - 44) described the applicant being stopped by police on 12 April 2019 for tailgating and again trying to bluff it out by producing his Queensland licence. He was disqualified at the time and was charged accordingly.
The tribunal's reasons for decision in the applicant's 2019 application were delivered at the time when a further offence of driving while disqualified was still pending. The applicant indicated to the tribunal that he intended to plead guilty, but the outcome of the matter before the Local Court was not known to the tribunal at the time. The respondent submitted that with the passing of such a short time since the present hearing before the tribunal, the facts, consideration and findings (both factual and legal) continue to be entirely relevant to the matter now under consideration by the tribunal.
The tribunal had drawn attention to the instances of dishonesty by the applicant in dealing with the police and also his repeated use of his Queensland licence in an attempt to mislead police as to his actual licence position. Despite the explanation that the applicant gave for holding that licence, the proposition that he had transferred his licence to Queensland to avoid a suspension in New South Wales was irresistible. The tribunal had noted that he had been given many second and subsequent chances to change his ways, but had chosen to waste them. He might have undergone a major change of heart and direction, but he still needed to prove it.
Consideration
This tribunal carries out a review of the merits of the original decision, considering all the material taken into account by the original decision-maker, together with any further relevant material, so as to either confirm the original decision, vary it or set it aside and substitute another: "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made": Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
It is commonly accepted that there is no strict onus of proof in tribunal proceedings. In Hardy v Commissioner of Police, New South Wales Police Force [2006] NSWADT 167, Higgins JM explained that "It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings" (at [12]). In the context of licence revocation under the SI Act, however, it has been held that where the issue to be decided is whether circumstances have arisen that would justify licence cancellation or suspension, the onus of proving that such circumstances have arisen devolves on the accuser. In that sense the party alleging that change of circumstances has the onus of proving it: Habib v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 48, [81].
There being no strict burden of proof, there is no legal standard of proof either, but the tribunal takes as a guide the standard laid down in s 140 of the Evidence Act 1995, which is the balance (preponderance) of probabilities. That is the case even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449). The tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account, the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60].
The Act establishes a scheme for licensing persons to carry on security activities. The objects of the Act and the public policy served by it were analysed in Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245, [47]:
The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, New South Wales Police Force [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6.
Fitness and propriety
The applicant's licence application was refused both on the ground that he was not a fit and proper person to hold the licence and that his doing so would be contrary to the public interest. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157 the High Court stated that:
The expression "fit and proper person" is of course familiar enough as traditional words when used with references to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, 65 the Court explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
It is thus a question of whether the applicant possesses a requisite knowledge of the duties and responsibilities devolving upon him or her as the holder of a particular licence and that he or she is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public as a person to be entrusted with the kind of work that the licence entails: Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 76. Importantly, as Montgomery JM pointed out in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230, [27],
A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.
As the discretion must be exercised in light of the activities that the person will be engaging in, the Act's objects and purposes are relevant. They include the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in it are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, New South Wales Police [2005] NSWADT 130. As was pointed out in Haining at [22], the security industry has a special role in ensuring that public order is maintained, and that the public and public venues are safe.
The evidence relating to the applicant's conduct that bears on the public interest is essentially the same as for the "fit and proper person" point, and is evaluated below.
In the applicant's favour are a number of character or occupational references. They were tendered for the 2019 hearing but remain relevant for present purposes. The applicant did not tender any new material of that nature and, as an unrepresented applicant, appeared to be unaware that he really needed to, saying at one point in his submissions that he had done everything that was required.
One signed reference is from Mr Daniel De Sousa, duty manager of the Watershed Hotel, who was aware of the applicant's bad driving record but not of all of his offences. The referee stated that he had found the applicant a wonderful person to work with, as he was easy to get along with and cooperate with a team. They had become close friends and he began to learn more about him and his life. At the time of the offences the applicant had been living on his own and working in construction during the week, and as a security guard at the weekend. He was happy to be at work and loved what he did. It was great to have him at work, with his bubbly and friendly personality that brightened up the workplace.
He had been moved on from the Watershed to other venues around the Sydney CBD, as his skills in security were needed elsewhere for the benefit of the security company he was working for at the time, Prime Protection Services, but he remained in contact with his colleagues at the Watershed. After about a year he returned to work at the Watershed on weekends. He was "still the same lovable friend" and was great to work with as always. The referee had learned a great deal from Mohammed as he was always helping him to become the best manager he could be.
He was always great at keeping situations calm and dealing with them collectively and safely. His professionalism and work ethic were fantastic, and his trait of always going above and beyond had never gone unnoticed. He could always be relied on to deal with situations with his fellow guards if an incident were to happen. He was always a first preference to have if there was a private function booked at the venue because of his excellence in communicating with customers and outstanding customer service.
He was very surprised and disappointed to learn about the police pursuit, thinking it extremely out of character. He had spoken to Mohammed about it, and he had said he was extremely sorry, saddened and remorseful. He had begun to think positively and accept the reality that he had committed the mistakes, and he accepted the consequences. He was hoping to move on with his life and would think positively before acting.
Mr Mohamed Bousaleh was for five years the security supervisor at the Watershed and is currently a security guard at the Sydney Opera House. When the applicant had first started at the Watershed in January 2016, he was very shy but quickly became part of the team. The referee then describes the applicant's work ethic and how he was working at two jobs in order to support his family, both in Sydney and in Abu Dhabi. He had accepted that he had "messed up" and had to realize that he could not save the world. He should have called an ambulance instead of driving to the chemist's with his sister while disqualified [see 2019 decision, para 32]. He deserved a second chance because although he had done wrong, the good outweighed the bad and he wanted an opportunity to prove that he was not going to go backwards.
Those references from a member and a client of the security industry are quite detailed and not mere "pro forma" endorsements. They credibly indicate that he is well regarded as a security guard and as an employee, and has positive personal qualities. There is also a reference from the applicant's elder sister, Mariam Fakhouri, who is currently a check-in counter agent at the airport, while also studying part-time for a master's degree in business management at Southern Cross University. She stressed that he had always been a hard worker and a good provider for the family, but it was somewhat stressful for him at times, as he was providing his family with everything as they had found it difficult to find employment, and her father was not able to work because of a knee disability. During one of his regular trips to take her to the station so she could get to work he committed the offences relating to the police pursuit. He later apologized to her as he was sorry for scaring her and she knew he did not intend to frighten her or commit the offences that he had committed. But at that time he was worrying and stressed from all the responsibilities he had.
She had been very disappointed and angry with him on learning that he had been told to surrender his security licence because it had been revoked, as the family dependent on him and he worked long hours to make ends meet. But he had learned from his offences and become a better person. He is a great person, full of respect and great attitude and deserved another chance to recover his licence.
It might be suggested, with all respect to Ms Fakhouri, that as a family member she might not necessarily be thought to be the most detached of observers, but her conviction that he has learned his lesson and become a better person is consistent with the comments of the other referees.
In his own sworn statement (exhibit A1), the applicant apologized at length for his affront to the community and for putting people in danger by his furious driving. He vows that he would never do anything of that kind again. He pointed out in his submissions that he had never breached the terms of his intensive correction order or his community service orders. But he had not really learned his lesson and grown up until he had almost been ordered to go to jail.
It may also be noted that when working as a security guard he had assisted with police inquiries and had helped the Office of Liquor and Gaming. He had been subpoenaed multiple times to assist with statements in police prosecutions (2019 decision, para 16).
In cases of this kind, applicants almost invariably express remorse and contrition and claim to be fully reformed and rehabilitated. In this case, however, the applicant's seemingly heartfelt realization of what he had done and his determination to make a fresh start and shoulder his responsibilities, expressed in his own words, appear genuine.
He points out that after losing his licence he undertook courses that cost him $4000 in order to become qualified for the construction industry, but with the downturn in the economy, and therefore in the building industry, caused by COVID-19 restrictions, he was endeavouring to return to security work. He has an offer of employment with a security company which he hopes to accept, but he needs his licence for that. He is now engaged to be married and aims to start a family.
As Mr Grey correctly pointed out, the courts, and the tribunal in cases such as Fitton, have made it clear that mere effluxion of time without adverse notice, by itself, is insufficient evidence of reform and rehabilitation, and in any event only some two years have elapsed since the applicant's last offence. At that time his conduct had also been marred by a lack of candour, comparable to that in Ekila. Further, he had been given second and subsequent chances before but had wasted them.
On the other hand, his referees all attest to the radical change in his outlook and behaviour that he describes. They support his description of the somewhat Damascene dawning of realization that eventually came to him through his interactions with the justice system, and particularly when he faced the imminent prospect of a sentence of imprisonment. In his words, "When I started doing my community service hours at Bankstown PCYC I first felt absolutely unhappy and embarrassed, but the more I was there every week I realised that I deserved to serve the community for my mistakes and wrongdoings, also for putting people in danger. I pushed through every single hour day in and day out always reminding myself why I am here and why I would not repeat what I have done nor will I even encourage anything in any way" [sic].
He has now been driving on the roads since his suspension ended for some five months without incident, which should be quite unremarkable, but in his case it represents a clear change from his earlier pattern of behaviour. And as I noted in the 2019 decision, it is a well-known tenet of criminology that the incidence of law-breaking by male offenders falls off sharply after the age of 25, and the applicant is now 24.
In my view the evidence shows on the preponderance of probabilities that the applicant is now a fit and proper person to hold a class 1ACE security licence and that it would not now be contrary to the public interest for him to do so, and I so find.
At the same time, as only approximately two years have elapsed since his last offence, some additional safeguard is needed for the protection of the public in the event of a relapse into offending behaviour. I therefore find that the licence to be issued to him should contain a condition to the effect that "If the licence holder accumulates 5 or more driver demerit points before 31 December 2021, the Commissioner may summarily revoke his security licence".
On 27 June 2019, Bankstown Local Court imposed an intensive correction order for 8 months for driving while disqualified and ordered the applicant to perform 75 hours of community service. A one-year disqualification was also imposed. Only two weeks after being dealt with by the Bankstown Local Court, and four weeks after the tribunal's decision, the applicant lodged a further application for a security licence, which was refused, the refusal being affirmed following an internal review. On 6 July 2020, the applicant again applied for a security licence. Following a refusal and an unsuccessful application for internal review, that matter is now before the tribunal.
After setting out the duties and responsibilities of a security licence holder, the respondent highlighted the extent to which such licence holders interact with police, and how they are required to comply with police directions. But as the tribunal noted in the 2019 case, the applicant had come under notice as a person who is uncooperative and on occasion has sought to evade and mislead the police.
The submissions then referred to the authorities on the requirement that an applicant be a fit and proper person to hold a licence, and then turned to the law relating to the public interest. The respondent noted that in Sosaiete & Asovale v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 91, the tribunal had noted that the applicants were family men and needed security licences to work at their vocation in order to support their families. Nevertheless, it was well established that the public interest overrides any private interests in applicant may have in holding a licence. "The need for each of the Applicants to hold a security licence is subordinate to the need to ensure public safety" (at [34]).
A recent revocation decision in point was Ekila v Commissioner of Police, New South Wales Police Force [2019] NSWCATOD 150 in which there were concerns about the truthfulness of the evidence given by the applicant at the hearing and his evasiveness when questioned by police when his motorcycle was involved in two police pursuits. The tribunal concluded, "The lack of candour, and the failure to cooperate with police, are not consistent with the requirements and community expectations imposed on the holder of a security licence" (at [31]).
The applicant in his one-page statement (exhibit A1) had expressed regret for his past actions, claimed new insights into his behaviour and stated that he has undertaken training in the construction industry, but building work is now limited, whereas security work is available to him. But the tribunal had noted in Fitton v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2007] NSWADT 72, [39], that it had been acknowledged that the mere passage of time since the wrongful act was not sufficient to indicate a change of character.
The respondent submitted that the mere assertion of reform by the applicant did not satisfy the legal obligation for clear evidence. The fact that the assertion came from a person who had exhibited a routine reliance on lies and deceptions was more concerning. The security industry, both in New South Wales and nationally, had never been under closer public scrutiny. It was essential that the community had trust in persons who are licenced as security operatives.
At the hearing the respondent reiterated the points made in the written submissions, pointing out that the applicant had been under constant adverse notice until April 2019, incurring many fines and disqualifications and needed to prove that he had changed. He had applied for a security licence again on 15 July 2019, only a month after the tribunal had affirmed the refusal decision that was before it. Little could have changed in a month. He had made more than one attempt to mislead, such as in relation to the Queensland licence. Ekila stresses the importance of candour as a qualification in the security industry.
Nothing had changed since the 2019 decision. Fitton pointed out that the effluxion of time need not in itself be evidence of positive change. His own assertion carries little weight and there is no evidence to support it, and no evidence from his peers. Previously he had failed to learn from his mistakes.
The tribunal has also held that the Commissioner's discretions should be exercised in such a way as to promote the objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23].
The same point was made in Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6, [22]. As one of the objects of the Act is to regulate security activities, licences are conditioned on the overriding need to ensure public safety and the protection of property. The Act was designed with the intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard: Feuerstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114, [11].