Gabriel v Commissioner of Police, NSW Police Force

NCAT Occupational|2018-04-30

REASONS FOR DECISION

The applicant, Mr Alan Gabriel, has worked in the security industry for many years. His most recent security licence was a Class 1AC licence issued in February 2013. On 29 June 2016 the respondent, the Commissioner of Police, NSW Police Force (the Commissioner), revoked Mr Gabriel's licence because he had been convicted on 27 June 2017 of an offence of "Use carriage service to menace/harass/offend". Mr Gabriel sought internal review of that decision and the decision to revoke the licence was affirmed on 3 August 2017. He lodged an application for review of that decision with this Tribunal on 1 February 2018 following District Court proceedings concerning the conviction.
This application has been made some five months out of time. An applicant has 28 days after being notified of the internal review decision to file an application for review with the Tribunal (r 24(4)(a) Civil and Administrative Tribunal Rules 2014). The Tribunal does have a discretion to extend the time for the filing of the application (s 41 Civil and Administrative Tribunal Act 2013). A threshold issue in the proceedings was therefore whether the time should be extended.
At the hearing, I allowed the late filing of the application and gave brief reasons for doing so. Before proceeding to determine the substantive issues which arise in this application, it is necessary to set out a little more background and the relevant legislative provisions.

The legislation

The Security Industry Act 1997 (NSW) (the Act) establishes a scheme for licensing people to carry on security activities. Section 26(1A) of the Act provides that the Commissioner must revoke a licence where the Commissioner is satisfied that, if the person were applying for a new licence, that application would be required by the Act to be refused. Section 16 (1) of the Act sets out a number of mandatory grounds for refusing an application for a licence.
Of relevance to this matter are ss 16(1) (a) and (b) which provide that the Commissioner must refuse to grant a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or (b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law.
Clause 15 of the Security Industries Regulation 2016 (the Regulation) prescribes certain offences for the purposes of ss 16(1)(a) and (b). These include in cl 15(1)(i): An offence under the law of any Australian or overseas jurisdiction involving stalking or intimidation.
Section 474.17 of the Criminal Code (Cth) - which was the provision under which Mr Gabriel was convicted on 26 June 2017 - provides: (1) A person commits an offence if: (a) the person uses a carriage service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
The Commissioner is of the view that an offence under s 474.17 of the Criminal Code is an offence "involving stalking or intimidation". At the time Mr Gabriel's licence was revoked and on internal review, the relevant provision of the Act relied upon by the Commissioner for the revocation of his Class 1AC licence was s 16(1)(a) as, at that time, Mr Gabriel had been convicted of the offence.
Both parties agree that the issue before me, consequent upon the outcome of Mr Gabriel's appeal to the District Court, is whether the licence must be revoked in accordance with s 16(1)(b) of the Act.

The issues

The primary issue in this case is whether Mr Gabriel has been found guilty (but with no conviction being recorded) of an offence prescribed in the Regulation, including consideration of whether an offence under s 474.17 of the Criminal Code is an offence "involving stalking or intimidation". More particularly, the issue is whether the offence involves intimidation as it is clear there was no element of stalking. A further issue concerns the Tribunal's powers on review and, in particular, whether the Tribunal is able to exercise any discretion when considering the mandatory refusal of licences under s 16 of the Act.

Was Mr Gabriel found guilty of an offence?

Mr Gabriel states that, as a result of the District Court appeal, the conviction and penalty imposed by the Local Court were set aside and Mr Gabriel was discharged on a bond. He submits that the District Court made no finding of guilt and therefore s 16(1)(b) of the Act does not apply to his licence. As set out above, s 16(1)(b) is engaged if a person is "found guilty (but with no conviction being recorded)" of a prescribed offence.
The Commissioner submits that the order of the District Court which includes the words "the offence is proven" is a finding of guilt within the meaning of s 16(1)(b) of the Act. The Commissioner notes that the word "guilty" is not defined in the Act and states that it is a well understood word which should be given its ordinary meaning. The Commissioner refers to the definition of "guilty" contained in the Oxford Dictionary of Law, Sixth Edition which is couched in terms of an accused person admitting "that he has committed an offence with which he is charged".
The wording in the order made by the District Court is derived from s 19B of the Crimes Act 1914 (Cth) which provides that where a person is charged with a federal offence and the court is satisfied "that the charge is proved", the person may be discharged without proceeding to conviction so long as he or she gives a security that he or she will comply with certain conditions. The heading to the section is "Discharge of offenders without proceeding to conviction".
In the circumstances of this case, based on the evidence given at the hearing, Mr Gabriel pleaded guilty to the charge at the Local Court. He then appealed to the District Court only in relation to the severity of the sentence imposed upon him. That Court made a finding that the charge was proven. Indeed it could hardly do otherwise as that aspect of the Local Court's orders was not before it. The Court's finding that the charge was proven was made in conformity with the legislation which it was applying, namely s 19B of the Crimes Act 1914 (Cth). The decision made by the District Court was to set aside the conviction and impose a different sentence to that previously imposed.
In my view, it is abundantly clear that Mr Gabriel has been found guilty of the offence with which he was charged (in accordance with his own plea). I agree with the Commissioner's submission that to construe s 16(1)(b) as being applicable only in circumstances where the relevant statute uses the word "guilty" would produce an absurd result which cannot have been intended. For example, an offender who receives a s 10 order under the Crimes (Sentencing Procedure) Act 1999 (NSW) would be caught by the provision, but any offender who is dealt with under the equivalent provision in the Crimes Act 1914 (Cth) would fall outside the scope of s 16(1)(b) and cl 15 of the Regulation. This would be the case even though s 16(1)(b) and cl 15 refer to the laws of any Australian or overseas jurisdiction.
I do not agree with the submissions made on behalf of Mr Gabriel that the exercise of a Court's discretion under s 10 of the NSW Crimes (Sentencing Procedure) Act 1999 or s 19B of the Crimes Act 1914 (Cth) means that there is no finding of guilt.
The word "guilty" in s 16(1)(b) should be given its ordinary, well understood meaning. Guilt, in my view, includes that an offence has been proven.

Does the offence involve intimidation?

As noted above, cl 15(1)(i) of the Regulation refers to an offence "involving stalking or intimidation". At issue is whether the offence of using a carriage service (in this instance a telephone service) in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, is an offence involving intimidation.
Mr Gabriel argues that the offence with which he was charged did not involve intimidation. He states the word "intimidation" is not part of the offence, there was never any intention to intimidate and the facts of the case do not reveal any intimidation.
The word intimidation does not occur in the Commonwealth offence, nor does the Regulation contain a definition of intimidation for the purposes of cl 15(1)(i). There do not appear to be any cases which have considered the meaning of intimidation in cl 15(1)(i) or which, more generally, have dealt with how the various sub-clauses in cl 15(1) should be interpreted.
Some of the prescribed offences set out in cl 15(1) of the Regulation are specific in their terms and refer to a specific provision in the criminal law. For example, cl 15(1)(l), which concerns offences involving organised criminal groups and recruitment, refers to a specific offence under s 93T or 351A of the Crimes Act 1900 (NSW). Others, such as cl 15(1)(i), are more general in their terms and refer to types of offences, rather than specific legislative provisions.
In Farah v Director-General, Department of Finance and Services [2014] NSWCATAP 23 the Appeal Panel considered a provision in the Property, Stock and Business Agents Act 2002 (NSW) which prevented a person from holding a licence under that Act if the person had a conviction in NSW or elsewhere for an "offence involving dishonesty". At issue in that case was whether an offence for money laundering was an offence involving dishonesty.
Farah makes clear that to be an "offence involving dishonesty" the relevant statutory provision does not have to contain the word "dishonest" or "dishonesty". That reasoning is applicable in the current circumstances and, in my view, the fact that s 474.17 of the Criminal Code does not contain the word "intimidation" does not necessarily mean that it is not an offence "involving intimidation".
The Appeal Panel stated that where a phrase in a statute has no fixed meaning, its meaning must be determined by the process of statutory construction. The Appeal Panel referred to Project Blue Sky v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] where the High Court stated that the "primary object of statutory construction" is to construe a provision so that "it is consistent with the language and purpose of all the provisions of the statute".
The process then undertaken by the Appeal Panel in Farah was to consider the meaning of "dishonesty". The Appeal Panel held that the starting point was the ordinary meaning of the phrase "an offence involving dishonesty" and noted that, whether any broader interpretation was warranted depended on the meaning of the word "involving".
The Appeal Panel noted that, as a matter of statutory interpretation, the provision refers to a conviction for an offence involving dishonesty. The provision does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence and there should be no separate factual inquiry by the decision-maker into whether the person acted dishonestly. This is particularly the case where disqualification from holding a licence is mandatory upon conviction for the offence.
The Appeal Panel, referring to an earlier statement in its reasons for decision that the kinds of offences leading to mandatory disqualification should not be construed broadly, went on to say that the phrase should not be given a broad interpretation because the effect of disqualification is that a person will lose their livelihood and concluded: [I]t is the offence itself that must 'involve dishonesty.' It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J [in Barber v Law Society of NSW (No 2) [2001] NSWSC 361 at [32]], the offence must be one which involves dishonesty "without further inquiry".
The Commissioner submits that, while the Appeal Panel was correct in Farah to conclude that it was not open to the decision-maker to look behind the conviction and consider matters other than whether the offence itself required the element of, in that case, dishonesty, the Panel's conclusion that the kinds of offences leading to mandatory disqualification should not be construed broadly, while applicable to the Property, Stock and Business Agents Act, is not applicable to the Security Industry Act.
My understanding of this submission is that, in relation to the issues in this case, I should confine my inquiry to whether the offence of which Mr Gabriel has been convicted is one which "involving intimidation" without considering matters such as intent or factual background, but in considering the term "intimidation" I should take a broad approach to what is encompassed by that term to give effect to the intention of the relevant provisions in the Security Industry Act.
In support of this proposition the Commissioner sought to distinguish the purpose and scope of the Property, Stock and Business Agents Act from the Security Industry Act. Reference was made to the Second Reading Speeches in the Legislative Assembly and Legislative Council when the relevant Bill was introduced in 1997. Those speeches set out some history of the industry and concerns about criminal elements having infiltrated the industry. The new legislation therefore contained provisions designed to exclude from the industry persons with convictions for certain offences.
The Commissioner also referred to the Administrative Decisions Tribunal's decision in Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11] where the Tribunal described the purpose of the Act as follows: The Act was designed with the clear 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. The legislation was enacted to exclude from the industry persons convicted of prescribed offences. In this regard, criminal record checks are undertaken on a regular basis after licenses are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and revoking their licenses.
The Commissioner noted that, over time, the categories of offences prescribed in the Regulation for mandatory refusal have been expanded, the strengthening of the offence provisions and aims of the Security Industry Act. The Commissioner also refers to the fact that the prescribed offences in cl 15 of the Regulation are generally not specific in their terms but use generic terms which are frequently accompanied by the word "involving" or "similar". For example, cl 15(1)(a) provides that an offence "involving assault of any description" is a prescribed offence. It is apparent that these broad descriptions are necessary as the prescribed offences include offences committed in any jurisdiction anywhere in the world.
It is not clear to me why the principles as espoused in Farah are not applicable to the prescribed offences set out in the Regulation concerning the security industry. I accept that the purpose of the two statutes are somewhat different. The Property, Stock and Business Agents Act is designed to protect the property and other assets of the persons for whom agents act through appropriate licencing and other requirements placed on those agents. The Security Industry Act is designed to regulate the security industry through appropriate licensing and to ensure that both the public and licence holders are protected from harm.
However, both statutes are concerned with the licencing of occupations and the particular provisions which were under consideration in Farah and before me deal with the circumstances in which a person is not able to hold a licence because they have been convicted of a certain offence.
In my view, the Commissioner has misconstrued the Appeal Panel's statements in Farah. The Appeal Panel's decision was directed towards what matters can be considered or taken into account by a decision maker in deciding whether the particular offence of which a person has been convicted falls within, in that case, "an offence involving dishonesty". The Appeal Panel concluded the Tribunal's consideration should be confined to the offence itself and not to some broader considerations, such as the person's conduct or behaviour. The Appeal Panel did not advocate that a narrow approach should be taken to construing the words that constitute the offence. Rather, the Appeal Panel concluded the word describing the offence should be given its ordinary meaning.
I am of the view that the Appeal Panel's approach as articulated in Farah with reference to the legislation there under consideration is equally applicable to the Security Industry Act. Having come to that view, I must now consider what is meant by "intimidation" and whether the offence in this case is an offence "involving intimidation".

Meaning of "intimidation"

The Macquarie Dictionary defines "intimidate" as: 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear.
"Intimidating" is defined as: threatening. Synonyms for "intimidate" include, menace, abuse, cow, harass, hassle, haze, threaten, torment.
Similarly, the Oxford English Dictionary defines "intimidation" as: The action of intimidating or making afraid; the fact or condition of being intimidated; now, esp. the use of threats or violence to force to or restrain from some action.
"Intimidate" is defined as: To render timid, inspire with fear; to overawe, cow; in modern use esp. to force to or deter from some action by threats or violence.
Synonyms for "intimidation" include frightening, menacing, terrifying, scaring, alarming, terrorization, terrorizing, cowing, subduing, daunting, unnerving.
As noted above, the Security Industry Act itself does not define "intimidation". That term is, however, defined in other NSW legislation, for example, in s 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and the now repealed s 545B(2) of the Crimes Act 1900. The Crimes (Domestic and Personal Violence) Act defines "intimidation" as: (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
Section 545B(2) of the Crimes Act defined "intimidation" as meaning: The causing of a reasonable apprehension of injury to a person or to any member of his family or to any of his dependants, or of violence or damage to any person or property.
While these definitions are for the purposes of the offences contained in those Acts and are not directly referable to the provisions of the Security Industry Act, they nevertheless provide an illustration of the type of conduct that the NSW legislature regards as falling within the meaning of "intimidation".

Is the offence an offence involving intimidation?

The offence of which Mr Gabriel has been found guilty does not contain the word "intimidation". In order to be found guilty of such an offence, a person must: 1. use a carriage service; and 2. use that carriage service in a way - either by the method of use of the service or the content of a communication, or both - that a reasonable person would regard as being menacing, harassing or offensive.
The Criminal Code (Cth) does not define the words "menacing", "harassing" or "offensive". The Macquarie Dictionary defines "menace" as: something that threatens to cause evil, harm, injury, etc.; a threat; to utter or direct a threat against; threaten.
The synonyms for "menace" include harass and intimidate.
When s 474.17(1) was included within the Criminal Code (Cth) in 2004, the Explanatory Memorandum for the Bill stated: Examples of the type of use of a carriage service the proposed offence may cover include use that would make a person apprehensive as to their safety or well-being or the safety of their property, use that encourages or incites violence, and use that vilifies persons on the basis of their race or religion.
It is apparent from the definitions set out above in relation to "intimidation" and "menace" that "menacing" (and possibly "harassing") conduct involves intimidation. I am satisfied that the offence of using a carriage service to menace, harass or cause offense is an offence "involving intimidation" within the meaning of cl 15(1)(i) of the Security Industry Regulation.

Mandatory nature of the refusal provision

The Tribunal has held on numerous occasions that, where the Security Industry Act provides that a licence must be refused (or, by extension, as in this case, revoked) if the person has been convicted or found guilty with no conviction recorded of the prescribed offence, the licence must be refused or revoked. The Tribunal has no residual discretion to decide otherwise (Bourke & Ors v The New South Wales Commissioner of Police [1998] ADT).

Conclusions

Mr Gabriel's representative argued eloquently that it would be unfair and unjust for Mr Gabriel's licence to be revoked. He pointed to Mr Gabriel's otherwise good character and submitted that Mr Gabriel's actions which led to the charge were not of a serious nature. He submitted that the Tribunal should not construe the relevant provisions in a way which produced an unfair and absurd result.
While I have some sympathy for Mr Gabriel's position, applying the principles set out in Farah and Bourke:

Mr Gabriel has been found guilty of an offence under s 474.17(1) of the Criminal Code (Cth) of "Use carriage service to menace/harass/offend";
that was an offence "involving intimidation" within the meaning of cl 15(1)(i) of the Security Industry Regulation; and
Mr Gabriel's conviction occurred within the last five years.

Accordingly, in accordance with ss 26(1A) and 16(1)(b) of the Security Industry Act and cl 15(1A) and 15(1)(i) of the Security Industry Regulation, Mr Gabriel's licence must be revoked.

Orders 1. The applicant's application for an extension of time to lodge an application for review is granted. 2. The decision under review is 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: 15 May 2018

Property, Stock and Business Agents Act 2002(NSW)

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