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 60Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70Farquharson v Director-General, Department of Transport [1999] NSWADT 53Feuerstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114Habib v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 48Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6, [22]Hardy v Commissioner of Police, New South Wales Police Force [2006] NSWADT 167Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245IJ v Commissioner of Police, New South Wales Police Force [2003] NSWADT 230Infarinato 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
Judgment (12 paragraphs)
[1]
Solicitors:
Office of the General Counsel (Respondent)
File Number(s): 2019/00088338
[2]
Reasons For Decision
The applicant Mr Mohamed Fakhouri applied to this tribunal on 6 March 2019 for review of a decision of a delegate of the respondent on 14 February 2019 revoking the applicant's class 1ACE Security Licence No. 000221100. The licence was revoked pursuant to s 26(1A) of the Security Industry Act 1997 (SI Act) on the grounds that the applicant was not a fit and proper person to hold a security licence and that it would not be in the public interest for him to continue to hold it.
The applicant had been issued with his initial security licence on 11 November 2015 and re-applied for it on 3 January 2018. On 15 January 2018, he was issued with the security licence under the provisions of the SI Act, which authorized him to perform the following security functions:
Class 1A - Unarmed Guard - authorizes the licensee to patrol, protect, watch or guard any property while unarmed (and whether static or mobile);
Class 1C - Crowd Controller - authorizes the licensee to act as a crowd controller or to act in a similar capacity;
Class 1E - Monitoring Centre Operator - authorizes the licensee to patrol, protect, watch or guard any property while carrying on monitoring centre operations (does not include control room operations).
The applicant was initially issued with a New South Wales learner driver licence on 17 June 2015, but on 30 December that year, he was fined for failing to display his "L" plates as required. He was issued with a P1 provisional license on 24 June 2016, but it was suspended several times because of the applicant's accrual of demerit points for violations including speeding, failure to display "P" plates, disobeying traffic lights, driving in a bus lane and improper turning.
In January 2018, the applicant was charged with driving a motor vehicle while licence suspended (first offence). According to the fact sheet, he was observed driving his vehicle and then switching seats with his passenger after police had signalled to him to pull over. The maximum penalty for such an offence is 30 penalty units or 6 months' imprisonment or both.
On 13 February 2018, the applicant transferred his provisional license to Queensland (exhibit R2, p 2). On 13 March 2018, he was convicted of driving a motor vehicle while suspended (first offence) and was fined $800 and disqualified from driving until 12 August 2018. On 10 April 2018, his New South Wales driving privileges were formally withdrawn until 14 August 2018 on the ground of his not being a "fit and proper person" in view of the offences he had accumulated. Then on 7 May 2018, he was charged with three offences arising from an incident earlier that day: "police pursuit - not stop - drive dangerously - first offence", "Class A m/v exceed speed, greater than 45 km/h estimated" and "drive recklessly/furiously or speed/manner dangerous - first offence". The maximum penalties for those offences include imprisonment for 9 months and imprisonment for 3 years. On appeal his disqualification period for driving while suspended was reduced from 5 months to 3 months.
Subsequently, in August 2018, he was charged with two offences following an incident on 1 August 2018, driving in a bus lane and driving a motor vehicle during disqualification, first offence. Then on 17 January 2019, he was convicted by the Local Court of New South Wales of the following charges:
"Police pursuit - not stop - drive dangerously - 1st offence". He was placed on an intensive correction order for 14 months, required to perform 300 hours of community service and disqualified from driving for 18 months.
"Drive recklessly/furiously or speed/manner dangerous - 1st offence". He was placed on an intensive correction is order for 6 months and disqualified from driving for 18 months.
"Drive in bus lane": he was fined $450.
A District Court appeal against severity of the sentence was dismissed on 20 February 2019.
By court order, the applicant is disqualified from driving in New South Wales until 6 August 2020 (exhibit R2, p 1). On 22 January 2019, the applicant's security licence was revoked by a delegate of the Commissioner. On the basis of the applicant's convictions, the delegate was not satisfied that it was in the public interest for him to continue to hold the licence, and considered that he was not a fit and proper person to hold a security licence. Following an internal review, the decision to revoke was affirmed on 14 February 2019.
Further, on 12 April 2019, the applicant was charged with driving a motor vehicle while disqualified, 2nd offence. The fact sheet records that he presented a Queensland driver licence and when asked a number of questions about driving, replied "I don't want to comment". He is due to appear in Bankstown Local Court to answer that charge on 13 June 2019.
[3]
Applicable legislation
The SI Act establishes a scheme for licensing persons to carry on security activities. It also contains several provisions permitting the Commissioner to revoke a licence on specific grounds. Section 26(1A) provides that "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". Under s 15(1)(a) the Act, the Commissioner must refuse to grant a licence if not satisfied that the applicant "is a fit and proper person to hold the class of licence sought by the applicant".
Section 26(1)(d) confers a discretionary power to revoke a licence "for any other reason prescribed by the regulations". Clause 25 of the Regulation provides that a licence may be revoked if the Commissioner considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it.
The issues in this application are thus whether the applicant is a fit and proper person to hold the security licence and whether it would be contrary to the public interest for him to continue to hold it.
[4]
The evidence
The respondent called no oral evidence but relied on material, including the s 58 documents (exhibit R1). The applicant gave sworn evidence.
[5]
The applicant - Mohamed Fakhouri
The applicant tendered a signed statement filed on 6 June 2019 in which he stated that he refused to accept the revocation of his licence because he had been convicted and charged for only two offences. Although they were serious, he said they were committed approximately a year ago and in that time he could say with pride and confidence that he had changed and become a better person. On the day of the incident, it was all a matter of two minutes that caused him to be caught and be put before the courts and charged. Everything leading up to those two minutes was him being a normal young person working at two jobs in order to support his family and build his future. Everything after those two minutes up until today had made him wiser and have more control over his actions and situations when they occur.
He is performing his community service hours at Bankstown PCYC and has also been asked, because of his excellent manners and attitude, to help families and children on Saturdays at soccer games. They love to have him there every week because, he has been told, he is an excellent person to have around and can always be relied on. In the security industry he had never had any complaints, only great recommendations and excellent feedback from venues and from patrons he had helped.
He had also helped immensely with police inquiries and had helped the Office of Liquor and Gaming. He had also been subpoenaed many times to New South Wales courts to assist with statements, and more importantly to help the New South Wales Police Force.
If he were to receive his licence back, he would first be extremely grateful to everyone. He would continue to be a fit and proper person and as he is now, and to help the community when he could and prevent wrongdoing when he could. He believed he deserved a second chance and should be given one because everything that happened in the past was in the past and he is looking forward to getting married this year. Consequently, being immature and not a fit and proper person are not on his to-do list. He hopes for the best outcome and thanks everyone for their consideration.
In a further written statement (undated and unsigned) (exhibit A2), he stated that he is currently 22 years of age and works part-time in construction. He is a brother to 3 sisters, of whom only one works, as the other two are studying. He is also a son to his father who is currently unemployed because of a disability. In January 2016 he received his security licence in order to commence work as a security guard. At the time he was living at home while his family were living overseas in Abu Dhabi. He was also working in construction as a formwork rigger. He was very excited to receive his security licence and be able to commence work, as he knew he was going to learn a special set of skills to use in his day-to-day life.
[6]
References
The applicant produced three signed but undated references (exhibit A3), the first of which was from Mr Daniel De Sousa, duty manager of the Watershed Hotel. In cross-examination the applicant said he had told Mr De Sousa everything but agreed that the reference did not mention all of his offences. Mr De Sousa had known about the pursuit incident, but not the latest charges, as the reference had been written before he had been charged. He had not told the referee about it, as he did not want to because it was not relevant as Mr De Sousa was a friend. He did not want to give him every detail, but he knows the applicant has a driving record and has had problems at home.
The referee stated further that he found the applicant a wonderful person to work with as he was easy to get along with and work with. They had become close friends and he began to learn more about him and his life. At the time Mr Fakhouri 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 brightens up the workplace.
He had been moved on from the Watershed to other venues around the Sydney CBD as his skills and security were needed elsewhere for the benefit of the security company he was working for at the time, Prime Protection Services, but 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. He had learned a great deal from Mohamed 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.
At the start of 2018 he was very happy that his sisters and father were returning to Australia from Abu Dhabi. During the first couple of months he was beginning to experience some stress, as he was working more to provide for his family who were struggling to find work themselves, and his father was unable to work because of his knee injury. At the time his family were depending on him to work both jobs as both positions were very important, delivering income to support his father and younger sister, and also his mother who was still overseas.
[7]
Applicant's submissions
The applicant said the last two or three years had been "quite a ride". When he obtained his security licence, he took two or three jobs because he was alone at the time. He was not the best driver, and was going through a phase in which he tended to express himself through speed, which was wrong.
His security licence helps him to support his family, as casual work in construction is now difficult to get.
He is known for his ability to deal with difficult situations and has no problems in keeping everyone safe. He had applied to join the navy, and had been accepted as a boatswain's mate, but then realized that working in security was more what he wanted. He had declined the RAN's offer.
He loves security work and is a good driver when he is not making mistakes. He understands why the court disqualified him, but he had chosen to drive to help his family, even though he was disqualified or suspended. He likes to help people. He has changed in the last six months, however, and hopes to marry his girlfriend who is a neuroscience student at UNSW. His security licence helps him to support his family, as they helped him in the past. The salary range for construction work quoted by the respondent is wrong. He believes a member of the public would say that he deserves a second chance. People learn from their mistakes and he did not want to go through that process any more. He accepted his convictions and wanted to make a fresh start.
The facts stated by the respondent were exaggerated. There are some things he does not tell his friends, but they know much more about him and are proud of him. His father, aged 58, is also proud of him and says it had been a phase that the applicant had gone through, but he has now matured. He has learned a great deal from the security industry, which has helped him to become better. 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 while disqualified. He deserves a second chance because although he has done wrong, the good outweighs the bad. He wanted an opportunity to prove that he is not going to go backwards.
[8]
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].
The standard of proof is the civil standard, 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.
[9]
Fitness and propriety
The applicant's licence was revoked 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.
[10]
The public interest
The alternative ground for revoking the applicant's licence was that it was 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 to be amplified 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].
[11]
Conclusion
For the reasons given above, I conclude that at present the applicant is not a fit and proper person to continue to hold a licence under the SI Act and that it is not in the public interest for him to do so. The evidence does show that he has started on the path of rehabilitation and of becoming a responsible citizen, but it is too early to say that he has indeed rehabilitated himself. The decision under review must be affirmed.
[12]
Order
Decision under review affirmed.
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: 09 March 2023
Parties
Applicant/Plaintiff:
Fakhouri
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
His first work venue was at the Watershed Hotel in Darling Harbour. He began working casually on weekends with Prime Protection Services, while still continuing his construction job during weekdays. He became better as a great security guard by learning from his fellow guards and also making great friends, who are still currently his friends. After working for about a year at that venue, he was asked to be moved to a different venue to help other venues with their security. Along the way he was making friends with many other guards and managers in venues all over the Sydney city CBD. During that period he still kept a close relationship with his work peers from the Watershed. He also always got along well with patrons and the people he was working with.
In late 2017 he had returned to work at the Watershed and was asked to become a permanent security guard on weekends. He agreed, as he enjoyed the people and the atmosphere at that club. He began making more friends and becoming a well-known guard to other venues around the harbour and also to the New South Wales Police Force, due to dealing with them on a regular basis if a situation had occurred on a specific night. While he was working at weekends he was also doing three or four extra security shifts during the week to help out with his expenses, and also because he was sending money overseas to his mother to help his family and his sister's university payments. In total, he was therefore working approximately five or six security shifts a week and four or five construction days in a week. Both jobs were very important to him, and security in particular, as it is always stable, whereas his construction job was not, as the work was not consistent.
During 2017 he had lost his driver's licence for three months because of loss of demerit points. It all resulted from his stupidity in driving. During the time he was suspended and off the road, he had realized the importance of having a driving license and was hoping to become a great driver New South Wales roads once he was allowed to drive again. Unfortunately, he was caught driving while suspended and was given a court date on which he received five months off the road. He then appealed that decision, but by the time he appealed, he had only two weeks left of his suspension.
At the start of 2018 his sisters and father moved back from Abu Dhabi and began living with him, as he had found and begun renting a house for them. He was extremely happy, as he had not been living with, or seeing, his family for more than 3½ years. His younger sister began attending school at Beverly Hills Girls' High School and he was supporting his other sisters and father, as they were still trying to find work. Soon enough, his sisters began working at the airport, but his father was still unable to work because of his knee disability. At the time he was still supporting his mother overseas, and currently is still doing so.
In cross-examination at the hearing he reiterated those points and added that he is currently living with his sisters, his father and his grandparents. While working at the Watershed he had been carrying out monitoring, crowd control, helping people and attending to the safety of the public and his colleagues. He knew how to help his supervisor and deal with incidents and acted for him when he was absent. He had received two weeks' training. There were between 8 and 10 guards at the Watershed, and between 700 and 1000 guests. When his licence was revoked, he had been working Wednesdays, Fridays to Saturdays, and sometimes Sundays at the Golden Sheaf at Double Bay, which amounted to 30 or more hours per week. There had never been any complaints against him as a security guard.
At the time he had not been getting much work in construction because of a building downturn. Since revocation of his licence, he has helped out some friends, but not to any great extent as the construction industry is still low. He has applied for courses and tried for 200 other jobs in cleaning, gardening and retail, but his lack of experience in other fields is a problem, as are his lack of a driver's licence and his criminal convictions.
Ms Garaty then took him through his traffic record (exhibit R2). He admitted all the offences and conceded that his record was "atrocious" and that it showed a contempt for the rules of the road, at that time. When it was put to him that he had placed public safety at risk, he replied that he now could see that, but at the time he had been living by himself and not considering his actions as much as he should have. It was then put to him that his behaviour did not show a high standard of good conduct and good character, to which he replied that if a person did not know him, he could not say what they would be likely to think.
He said he had no particular reason for transferring his licence interstate on 13 February 2018, but he had met a girl in Queensland and was driving there about twice a month until the relationship ended in late 2018. He had assisted her to buy a car there. He denied that he had transferred his licence in order to avoid a possible suspension in New South Wales.
The police fact sheet for an incident on 16 January 2018 at Beverly Hills stated that when they had directed the applicant to pull over for the purpose of a random breath test, they observed him and his front seat passenger climbing over each other and switching seating. As they had observed him occupying the driver's seat when he had driven past police moments before, they asked him to produce his licence. He initially refused to do so, saying that he had never driven and had always been occupying the passenger seat. Having carried out routine checks, police ascertained that he was a suspended driver, and also noted that he was not cooperative when interacting with police. The passenger, who by then was occupying the driver seat, Mohamed Jaelouk, said he had been the driver the whole time. Police noted that he "kept smiling, laughing and looking back at his friends during questioning".Jaelouk held a current driver's licence and was permitted to drive the vehicle.
Commenting on that report, the applicant denied that he had been uncooperative and said he had answered the police questions. When it was put to him that it was a serious offence, he replied that he had done it because he had some cousins aged 18, 15 and 12, in the car whose father had died two months previously. They had asked him for help and he had been driving them to Hurstville, as he did not want to give them more grief. He agreed that Jaelouk held a current license and could have driven the car, but said he was the eldest and he was grieving. He had wanted to help them and thought that he could not refuse. It was not a minor infringement, but he had done it in a safe way. That did not mean that when working as a security guard, he would commit an unlawful act for a friend. He admitted that he had attempted to mislead the police and agreed that as a security guard, he should be cooperative with them.
He was then asked about the three offences occurring on 7 May 2018, which the fact sheet stated (exhibit R1, pp 12 - 15) had entailed his driving at speeds of up to 140 km/h in a congested area of Padstow at 3:31 pm and twice becoming airborne over speed humps, while ignoring police directions to stop. When questioned after his arrest, he had said "I was just driving normal".
Noting that his sister aged 25 was a passenger in the car, Ms Garaty put it to him that he was driving dangerously and leading the police on a high-speed chase, he replied that some of the details in the fact sheet were wrong. There had been no pedestrians in the area at that time and is vehicle had not become airborne. As it was a residential area, he had not been travelling at 120 km/h. There had been too many cars in the area for him to reach those speeds. He had passed a number of cars, but had not been travelling at more than 100 km/h (in the 70 km/h area). He admitted that he had failed to stop for the police, but said the pursuit had lasted no longer than 30 seconds. He had said 2 minutes in his statement (exhibit A1), but the actual pursuit took 30 seconds. He had been involved in an argument with his sister, which was why he had not stopped. He agreed that driving at those speeds in a manner dangerous was not "normal" and was unsafe, creating a risk to his sister and to the public, and that as a security guard he was held to a higher standard of conduct because of occupying a position of trust and should uphold the law.
He had pleaded guilty and been convicted on 17 January 2019 of two of the offences, but had appealed against the severity of the sentence because it was difficult to find work if one was on a community service order. He is currently disqualified from driving until 2020. He was currently facing charges in Bankstown Local Court next week (exhibit R2, p 14) for driving while suspended, and intended to plead guilty to the charges.
He had driven on that occasion because at that time of day his family was not at home, except for his older sister who suffers from a medical condition that causes her much pain. She has no driver licence and needed medication. He had therefore driven to the nearest chemist, which was about 1 minute away, but as he had been stopped by the police, his delivery of the medications to his sister had been delayed. He agreed that when questioned by police about his driving, he had replied "I don't want to comment", but said that he had presented no risk to public safety. As a security guard he does whatever it takes to help people, and had been helping his sister, but that was not always the best way. He had not wanted to break the law, but his sister, who had raised him, needed help. He accepted, however that it had been wrong.
Asked whether a member of the public would think that he would not accept the obligation to comply with the laws relating to security guards, he replied that the record only showed half the picture. He could not answer for what a member of the public might think, but they could have confidence that he would comply with security guard law. In his statements (exhibits A1 and A2), which had been written after he had been charged with the latest offences, he knew that those charges would be heard but did not think he needed to mention them, because he was setting out what he is as a person, and any case he knew the latest charges would be mentioned at the hearing. It did not make his written statements meaningless.
He had mentioned the pursuit incident because that was what had triggered his licence revocation. He was now wiser and had given assistance to the police and the Liquor and Gaming authorities. He now has two screws in his hand because he tried to help some people who were being attacked. He agreed that his behaviour had not changed until recently and that there had indeed been an escalation in seriousness, but said that the facts showed that he would no longer offend. He was sincerely apologetic about his past behaviour and had learned his lesson. He was better at managing stress and was no longer affected by it, which was important as there was a great deal of stress in his job.
When he had heard what had happened with the applicant and his police pursuit, he was very surprised and disappointed as it was extremely out of character for him to do something like that. He had spoken to Mohamed about it, and Mohamed had told him 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 said that he had a hearing in January 2019 and was ready to accept whatever he was given by the magistrate. He was hoping to move on with his life and think positively before acting.
Mohamed had come to visit the Watershed one weekend and said he missed everything about work and Mr De Sousa as manager, and he feels the applicant has been mistreated and states that his security licence is very important to him and his family. He is an outstanding person who deserves a second chance and has moved on and is ready to accept more new responsibilities.
The applicant's eldest sister Mariam Fakhouri stated that she is currently working as a casual check-in counter agent at the airport, and also studying part-time at Southern Cross University trying to complete a master's in business management. During 2018 she and her sisters had returned to Australia after living for about 7 years in Abu Dhabi. Her brother Mohamed had by that time spent roughly 3 years living on his own and did an amazing job of doing so, which had proven to her that he was a mature and responsible 21 [sic] year-old. During that time he was supporting himself and her siblings and parents overseas, while doing two jobs and also taking a full-time course in 2016.
He had always been a hard worker and a good provider for the family. It was somewhat stressful for him at times, as he was new to 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. When she started working at the airport, her brother was always trying to find time in between his work and sleeping patterns to take her to the train station so she could get to work, as they only had one car at the time and it was his. During one of those trips to take her to the station, he committed the offences in relation to the police pursuit and reckless driving. 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 the time he was worrying and stressed from all the responsibilities he had.
She was very disappointed and angry for him on learning that he had been told to surrender his security licence because it had been revoked by reason of his convictions. Working as a security guard is a very important job for him and for herself and her siblings, and they depend on him and he works hours on end to make ends meet. Currently he is not working as much in construction as he is finding it hard to get to and from work. He always tells her he can work in many places close to home as a security guard, if only he had as licence, which she really hopes he gets. She knows her brother has committed offences and been charged with them. He has also learned from them and become a better person. He is a great person full of respect and great attitude and deserves a second chance to have his licence.
Mr Mohamed Bousaleh was for five years security supervisor at the Watershed Hotel 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 once introduced to the team he quickly became part of it. Over a period of about a year, he stayed working at the Watershed and they became good friends, both inside and outside work. He was moved to other venues but remained close and in contact during that time.
At that time he was living alone as his family was living in Abu Dhabi. He was renting a room in a share house. They would meet at the gym frequently and do some recreational sports when they had free time. The applicant was always good at working, and he was working at two jobs to support his family overseas as well as himself.
After a couple of months he asked to be moved back to the Watershed, which he did, and was working every weekend from then on. Mr Bousaleh could see that he missed his family and was very happy when they were returning to Australia to live with him. After they arrived at the beginning of 2018, he was extremely excited and loved working and providing for them. His jobs as a construction worker and in security were extremely important to him and his family, as they depended on him to work both jobs to help with household expenses.
Along the way he committed the offences that led him to face court and ultimately lose his driver's license and receive two intensive correction orders with community service. He later lost his security licence and felt very disappointed, as Mr Bousaleh did, feeling that he deserved a second chance. He was working so hard and had shown that he had learned his lesson, as he became a wiser person and is grateful for what he has. Mr Bousaleh has helped him to make sure he knows how to manage his stress and worries.
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 vCommissioner 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].
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.
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 is currently 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 expires 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 this writing, but in cross-examination the applicant admitted that it was correct and said he intended at the hearing to plead guilty.
Of particular concern are two episodes, the first of which occurred on 4 January 2018 (charge No. H 66790019). 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 vehicles had stopped, the fact sheet records, police observed the accused and his front seat passenger climbing over each other and switching seating. They approached the front passenger window to speak to the accused and observed him to be breathing heavily and shaking. The accused (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 tribunal hearing, the applicant asserted that he had been cooperative and had answered the police questions. Leaving that aside, however, 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. He said he had himself chosen to drive, however, because his cousins had lost their father two months previously and were still suffering from it. In particular, he said Mr Jaelouk was grieving and he did not want to cause him any more distress.
It seems rather improbable, however, that his cousin was still so afflicted by his father's death is to be totally incapacitated from driving two months later. But in any event, the uncontradicted police observation that Mr Jaelouk kept smiling, laughing and looking back at his companions throughout the police questioning is inconsistent with the applicant's explanation. This incident is a matter for concern, not only because the applicant chose to drive while his licence was suspended, but also because it involved a clear attempt to deceive the police as to who had been driving at the time. As such it amounts to an offence of dishonesty.
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 that it was clear that he was disregarding the police direction to stop.
The accused 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 he said 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.
At the hearing the applicant admitted the offence but said that some details were exaggerated. He claimed that he had not exceeded 100 km/h (in a 70 km/h zone), but as the police were pursuing him and had good reason to be noting the speeds attained, their contemporaneous record is more likely to be correct. The applicant also claimed that he was unable to stop because he was having an argument with his sister (which his sister did not mention), an explanation that borders on the ludicrous.
In the applicant's favour are the references he placed in evidence (exhibit A3). Although in some respects incomplete, they do credibly indicate that he is well regarded as a security guard and as an employee and has positive personal qualities, including a keen sense of responsibility towards his family. He has no drug or alcohol offences and according to the evidence he has never been the subject of a complaint about his performance as a security guard. Also relevant is that none of his violations occurred while he was performing security guard duties and none constituted offences other than traffic matters, although some in particular were very serious and one involved dishonesty.
The applicant has expressed remorse and contrition and is adamant that he has seen the folly of his ways and is determined to become a responsible and law-abiding citizen. He believes (as do his referees) that he should have a second chance.
There is no doubt that people can change. The incidence of law-breaking by male offenders falls off sharply after the age of 25, and the applicant is now 22. In the applicant's case, however, his bad record is still relatively recent, his worst offences having been committed in 2018. Indeed, he was charged only three months ago with driving while disqualified, an offence which he admits and to which he intends to plead guilty at his forthcoming hearing. The criminal justice system has already given him many second and subsequent chances, which he has chosen to waste. He may well have undergone a major recent change of heart and direction, but he still needs to prove it.
My conclusion is therefore that the applicant's repeatedly demonstrated disregard for the law and for the safety of others, coupled with his willingness to attempt deceit in order to escape the consequences of his wrongdoing, show that he has been a person from whom the public needed protection. He has lacked the qualities of character needed to make him a fit and proper person to hold the licences in question. In particular, he does 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 at community venues.
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 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 habitual disregard of the law, including several instances of driving while suspended or disqualified. It cannot be in the public interest to have in the industry a person carrying out security guard duties who, as I have found, is not fit and proper to hold a security industry licence.
A member of the public knowing 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 object to the applicant performing the licensed activities: Farquharson v Director-General, Department of Transport [1999] NSWADT 53, [37].
That view would be reinforced by the fact that he has also been sentenced to an intensive corrections order, which is categorized as a "custodial sentence" in Part 2, Division 2 of the Crimes (Sentencing Procedure) Act 1999. Ensuring that persons who accumulate that kind of record are not permitted to be placed in a position of authority and trust with responsibility for maintaining public order is necessary to maintain public confidence in the industry and in the regulatory scheme.
It is also necessary for persons holding security licences to have a cooperative relationship with law enforcement. While the applicant states that he has often assisted the police and the liquor and gaming authorities, he has also come under notice as a person who is uncooperative and on occasion has sought to evade and mislead the police.
He has tendered a number of supportive references attesting to his remorse and contrition over his bad record and assuring the tribunal that he has learned his lesson and has resolved to make a fresh start. One can accept that he has that intention, but it is still too early to say confidently that he will put it into effect, as his latest offence, driving while disqualified, occurred only three months ago and at the time of writing he is still awaiting the Local Court hearing.
The applicant and his referees stress his need to recover his licence in view of his responsibility for supporting family members. That, however, is a matter of his private interest and cannot prevail over the interests of the public.