Kalman v Commissioner of Police, NSW Police Force

NCAT Occupational|2023-07-20

The Applicant's case

The Applicant did not provide a statement in the proceedings and did not give evidence at the hearing. He did however rely on an undated two page document headed "Application for appeal against conviction and sentence" that was filed by him on 29 June 2023 (Appeal document). It was not clear whether this document had been produced by him for the review proceedings before the Tribunal or whether it was for the purposes of a potential appeal against the finding of guilt for the knife offence. In any event, there was no evidence before the Tribunal of an appeal by the Applicant to the District Court, or any court, in relation to the finding of guilt and in the hearing, the Applicant did not dispute that a finding of guilt and a conditional release order had been made in relation to the knife offence in the Local Court on 11 May 2022.
In the Appeal document, the Applicant stated that the circumstances surrounding the knife offence were that at the time of the incident he was 40 years old and had an excellent criminal history. He stated that he had been assaulted at work by his former employer and that he called the police. Whilst awaiting the arrival of the police he said that he discovered a knife in his bag that he willingly surrendered by placing it several metres away prior to the arrival of the police. He stated that he did not fully understand the consequences surrounding his guilty plea, specifically the loss of his licence. He said that he had a "previous section 10" which resulted in him being able to keep his licence.
In the Appeal document, the Applicant identified a number of grounds for appeal. These included that the knife was not intended to be used as an offensive implement and that it was purchased to maintain his bonsai trees. He stated that the knife was in his bag and was then removed so that the police were not fearful and submitted that he did not breach the Summary Offences Act. The Applicant referred to the trivial nature of the offence and that the full Facts as stated are incorrect and that he removed the knife from his person before the police arrived and declared ownership of it, even before providing his name. In the Appeal document, the Applicant sought the knife offence be dealt with by way of section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999

Consideration

It was not contended by the Respondent that the Applicant had been convicted in relation to the knife offence. As set out above, it is evident that a finding of guilt was made in relation to the knife offence and that the Magistrate who sentenced the Applicant did not record a conviction. Instead, the Applicant was made subject to a conditional release order for a period of 12 months. Conditional release orders are made pursuant to s 9 and s 10 of the Crimes (Sentencing Procedure) Act.
The various legislative provisions relied upon by the Respondent are quite complicated to follow. Section 16 of the Act relevantly provides: 16 Restrictions on granting licence - criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant - … (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, or …
"An offence prescribed by the regulations" is a reference to the Security Industry Regulation 2016 (the Regulation). Clause 15 of the Regulation falls within Part 2 of the Regulation relating to "Licencing - general provisions" and cl 15 relates to offences and civil penalties that disqualify applicants. Clause 15(1A) provides as follows: (1A) Prescribed offences: section 16 (1) (b) For the purposes of section 16 (1) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales - (a) an offence referred to in subclause (1) (a), (b) or (d)-(l), (b) an offence under the law of any Australian or overseas jurisdiction involving assault of any description, being an offence that, in the opinion of the Commissioner, is a serious assault offence.
Clause 15(1)(a) of the Regulation in turn provides: (1) Prescribed offences: section 16 (1) (a) and (b) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales - (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm, or any other weapon, committed under - (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction), and being an offence that would (had the offence been committed under the law of an Australian jurisdiction) disqualify the person concerned from holding a licence under the Firearms Act 1996.
Section 11(C) of the Summary Offences Act was repealed by the Criminal Legislation Amendment (Knife Crimes) Act 2023 on 23 October 2023 and the Crimes Act 1900 was amended to include an offence of "custody of knives in public places or schools". I accept that the knife offence is an offence committed in 2022 under the law of NSW at that time, namely s 11(C)(1) of the Summary Offences Act.
Section 11(5)(d)(iii) of the Firearms Act provides that a firearms licence must not be issued to a person who is subject to a conditional release order in relation to an "offence prescribed by the regulations". An "offence prescribed by the regulations" is a reference to an offence prescribed by the Firearms Regulation 2017. Clause 5(3)(a) of the Firearms Regulation relevantly provides that for the purposes of s 11(5)(d) of the Firearms Act, an offence referred to in cl 5(1)(a) is an offence prescribed "in respect of a person subject to…a conditional release order".
Clause 5(1)(a) of the Firearms Regulation provides as follows: 5 Offences that disqualify applicants (1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed - (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under - (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

Any other weapon

The term "any other weapon" is used in both cl 15(1)(a) of the Regulation and cl 5(1)(a) of the Firearms Regulation". "Weapon" is not defined in the Act, the Regulation, the Firearms Act or the Firearms Regulation.
As of 11 May 2022, the date on which the Applicant was dealt with by the Local Court in relation to the knife offence, Section 11(C) of the Summary Offences Act provided as follows: 11C Custody of knife in public place or school (1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school. Maximum penalty: 20 penalty units or imprisonment for 2 years, or both. (2) Without limitation, it is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if: (a) the custody is reasonably necessary in all the circumstances for any of the following: (i) the lawful pursuit of the person's occupation, education or training, (ii) the preparation or consumption of food or drink, (iii) participation in a lawful entertainment, recreation or sport, (iv) the exhibition of knives for retail or other trade purposes, (v) an organised exhibition by knife collectors, (vi) the wearing of an official uniform, (vii) genuine religious purposes, or (b) the custody is reasonably necessary in all the circumstances during travel to or from or incidental to an activity referred to in paragraph (a), or (c) the custody is of a kind prescribed by the regulations. (3) However, it is not a reasonable excuse for the purposes of this section for a person to have custody of a knife solely for the purpose of self defence or the defence of another person. (4), (5) (Repealed) (6) The regulations may provide that this section does not apply to or in relation to any specified class or description of knife.
Section 3(1) of the Summary Offences Act contains a definition of "knife" and there has been no amendment to the definition since the Applicant's knife offence was dealt with. "Knife" is defined as follows: knife includes: (a) a knife blade, or (b) a razor blade, or (c) any other blade, but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.
As of the date that the Applicant was dealt with for the knife offence, the Summary Offences Regulation 2020 did not provide for any exclusions to the definition of "knife" for the purposes of Section 3(1) of the Summary Offences Act. It was not disputed by the Applicant that the knife offence related to a knife, and I find that it did so. The reference to a knife is set out in both the Certificate of Conviction and the Facts Sheet.
The meaning of the term "any other weapon" in cl 15(1)(a) of the Regulation was considered by Senior Member Naida Isenberg in Martins-Gonzalez. She found at [18]: that that while "weapon" is not defined in the Act or the Regulation, the common or ordinary meaning of that term as defined in the Macquarie Dictionary (online edition) as "any instrument for use in attack or defence in combat, fighting, or war, as a sword, rifle, cannon, bomb, etc.", would clearly include a knife. I also accept that "possession" as used in cl 15(1)(a) is synonymous with the term "custody" in s 11C(1) of the Summary Offences Act. The test, in my view, is an objective one, and it is irrelevant whether the Applicant intended to use the implement in any aggressive fashion; it is the fact that the Applicant was found guilty of having in his possession an implement which included a blade that is determinative. It was open to Parliament to specify the size of a blade or to specifically exempt a "Swiss army" type tool from the definition of "knife" for the purposes of s 11C of the Summary Offences Act, but it did not do so. I am satisfied that the offence under s 11C(1) of the Summary Offences Act, for which the Applicant was found guilty, is an offence "relating to the possession of ... any other weapon" as prescribed in cl 15(1)(a) of the Regulation.
I agree with Senior Member Naida Isenberg's analysis as set out above and, in my view, her analysis in relation to "weapon" and "possession", is equally applicable to the same terms used in cl 5(1)(a) of the Firearms Regulation. Accordingly, I am satisfied that the Applicant's knife offence under s 11C(1) of the Summary Offences Act and for which a finding of guilt (without conviction) was made in the Local Court on 11 May 2022 is an offence "relating to the possession of…any other weapon" as prescribed in cl 15(1)(a) of the Regulation. I am satisfied that it falls within an offence "relating to the possession or use of a firearm or any other weapon…" as set out in cl 5(1)(a) of the Firearms Regulation.
As referred to previously, s 11C(1) of the Summary Offences Act has now been repealed but was clearly in force at the time of the commission of the Applicant's knife offence and the time when the matter was dealt with in the Local Court.
The Applicant raised various matters in relation to knife offence, a number of which have been referred to above. However, it is not permissible for this Tribunal to look behind the finding of guilt made in respect of the knife offence once the finding of guilt has been accepted. Senior Member Naida Isenberg summarised the relevant authorities on this point at [19] in Martins-Gonzales as follows: The authorities are clear - in applying cl 15 of the Regulation, it is the offence for which the person has been convicted or found guilty that is relevant, and it is not permissible for the Tribunal to look behind a conviction or finding of guilt for that offence to consider the particular facts of the case: Farah v Director, Department of Finance and Services [2014] NSWCATAP 23; Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23. Hence, it irrelevant what type of knife was in the Applicant's possession, or whether there was or would be any prospect of improper use. It is the fact of the finding of guilt of the offence under s 11C(1) of the Summary Offences Act that establishes the prescribed offence under cl 15(1)(a) of the Regulation for the purposes of the application of s 16(1)(b) of the Act.
I am satisfied on the basis of the Certificate of Conviction issued pursuant to s 178 of the Evidence Act 1995, and which in any event is supported by other evidence, that the Applicant was found guilty, without conviction, in relation to the knife offence on 11 May 2022 and was sentenced to a 12 month conditional release order. I am satisfied that the knife offence is an offence that would at that time disqualify the Applicant from holding a licence under the Firearms Act. The Applicant made his Application on 18 October 2022, and this period is less than five years from the date that he was found guilty, without conviction by the Local Court on 11 May 2022.

Discretion under s 16(1)(b) of the Act

The Respondent submitted that the Tribunal does not have discretion to grant the Application in this case. In Martins-Gonzalez, Senior Member Naida Isenberg held that the revocation of a security licence pursuant to s 26(1A) of the Act was mandatory under the Act and the Regulation. In reaching that decision, regard was had to the provisions of s 16(1)(b) of the Act. Reference was also made by her at [21] to the description of the legislative scheme in Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 as follows: 11 ... 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. …
Section 16(1)(b) of the Act provides that the Commissioner must (bold added) refuse to grant an application for a licence if the Commissioner is satisfied in relation to the matters in that section. For the purposes of this review, the Tribunal effectively steps into the shoes of the Commissioner. Given the wording of s16(1)(b) of the Act and the use of the word "must", I accept that if the Tribunal is satisfied in relation to the matters set out in subsection(1)(b), it has no discretion in relation to the grant of the Application and that it must be refused.

Consideration

The evidence establishes that the Application was made to the Respondent on 18 October 2022. Having regard to the evidence, and in particular the Certificate of Conviction, I am satisfied that the Applicant was found guilty (but with no conviction being recorded) by the Local Court in NSW on 11 May 2022 for the knife offence and that this was within the period of 5 years before the Application was made. I am satisfied that the knife offence is an offence prescribed by the Regulation in relation to the licence sought by the Application and that the knife offence was an offence under NSW law.
Having made these findings and pursuant to 16(1)(b) of the Act, the Application is refused.
The Applicant has raised concerns about the financial difficulties that he is experiencing by not being able to work in the security industry. However, in light of the finding that I have made, such matters cannot be taken into account by the Tribunal and the Tribunal cannot consider any other subjective factors (Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at [10]).
The Respondent submitted that if the Tribunal found that it did have discretion in relation to the grant of the Application, it should be refused on the grounds that the Applicant is not a fit and proper person to hold the classes of security licence sought by him and because it would be contrary to the public interest for the Applicant to be granted a security licence. The Respondent relied upon a significant amount of further evidence in relation to the further grounds and the Applicant also relied on various character references. In light of my finding that the grant of the Application must be refused, I give no consideration to these grounds or to the additional evidence before the Tribunal.

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: 23 January 2024

Submissions

The Respondent relied on written submissions filed on 5 July 2023. Both the Applicant, and Ms Meikle, the solicitor who appeared on behalf of the Respondent made oral submissions at the hearing. Ms Meikle helpfully handed up a bundle of relevant legislation during the course of the hearing, together with a copy of the decision of Martins-Gonzalez v Commissioner of Police, NSW Police Force [2020] NSWCATOD 167 (Martins-Gonzales) that was referred to in the Respondent's written submissions.

Role of the Tribunal

Section 29(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision to refuse the Application pursuant to s 9 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

At a glance

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Judgment (6 paragraphs)

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Cases Cited (6)