Mishra v Commissioner of Police, New South Wales Police Force

NCAT Occupational|2019-01-07

REASONS for decision

The applicant Mr Bivek Nath Mishra on 8 October 2018 applied to this tribunal for review of a decision made by the respondent Commissioner of Police on 1 August 2018 revoking Mr Mishra's class 1A security licence No. 000216395 pursuant to s 26 of the Security Industry Act 1997 (NSW) (SI Act). That decision had not been the subject of an internal review. The decision was served on the applicant personally on 27 November 2018, at which time the applicant's licence was revoked.
The ground given for the decision was that the applicant had on 31 July 2018 been convicted at Penrith Local Court of a prescribed offence involving assault, namely assault occasioning actual bodily harm (DV). The offence arose under s 59(1) of the Crimes Act 1900 (NSW). The court had imposed a community service order of 75 hours cumulative.
The applicant applied for review of the decision on 8 October 2018, the application being lodged before the decision was served on him, apparently as a result of Mr Mishra's being put on notice of the decision by his former employer. Mr Mishra did not apply for internal review.
The tribunal hearing took place on 7 January 2019, the applicant appearing in person. An interpreter, Mr Pramod Shitraka, was sworn into assist the applicant.

Applicable legislation

The SI Act s 26(1A) provides that "The Commissioner must revoke a licence where the 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".
Section 16(1)((a) of the SI Act provides as follows: 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: (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….
If one then refers to clause 15(1) of the Regulation, one finds that "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:…. (c) An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being an offence in respect of which the penalty imposed includes any term of imprisonment (whether or not suspended), an intensive correction order, a community correction order, a conditional release order, a good behaviour bond, a community service order or a penalty of $200 or more".
Section 59(1) of the Crimes Act provides that "Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years…."
The issue in this application is thus whether the offence in s 59(1) of the Crimes Act is correctly characterized as being an offence involving assault of any description for which one of the listed penalties may be imposed.

The evidence

The respondent called no oral evidence but relied on the s 58 documents (exhibit R1). The applicant did not give evidence but tendered an unsworn, unsigned statement dated 19 December 2018 (exhibit A1). It consists partly of factual assertions and partly of submissions, and is summarized below.

Applicant's submissions

In exhibit A1, the applicant stated that he came to Australia from Nepal on 29 October 2013 on a study visa. He finished his Master of Professional Accounting in 2016 and currently holds a temporary residence visa giving him full working rights. But the "unfortunate incidence [sic]" happened in his life and because of it he was going through mental and financial difficulties. After finishing his Master in Accounting degree, he performed contract work with a Korean company, believing that they would help him to obtain employment in the country. He paid them $31,000, but they defrauded him and he filed an application against them in NCAT. His case was successful and the tribunal ordered the payment of money, but he received no money back.
He had never done anything wrong after arriving in Australia, except the misfortune that happened last July. He had wanted to undertake a cooking course so that he could apply for employment sponsorship in Australia and thereby make a better future for himself, his wife and daughter. He had come to Australia especially to obtain a better future for his daughter. His security licence had been cancelled by the police because he had some issues with his wife. He was not notified of the cancellation. He had approached his previous employer for a job, which is when he learned that his licence had been cancelled. His licence was for standing guard, not armed, and any other guard duties.
Australia is a happy country, he continued, but because of his financial crisis the family were unable to enjoy it. His mother passed away in 2017 and he was going through emotional problems because of losing her. He had never done anything wrong and illegal. He was suffering from emotional breakdown and mental stress. He is a loving husband and a caring father, but now he is feeling helpless and worries about their future. Since obtaining a bad police report he had applied for some positions but had never been called upon. He had completed 75 hours of community work. He and his wife are happily living together.
He is the only breadwinner in his family and is hardly supporting his family as he has no other financial support. He is doing casual cleaning jobs through which he is paying rent on the house, grocery and other bills. He asks the tribunal to review his licence cancellation so that he could work in a full-time job and support his family. He had spoken with his previous employer, who had said if he could first get his security licence back, he would give him permanent employment. He would not repeat the same mistake as he had earlier and sought a second chance so that he could become a good father and loving husband.
At the hearing the applicant reiterated those points and stated that he had tried unsuccessfully to contact the police on numerous occasions in order to arrange for an internal review. He submitted that the cases relied on by the respondent were incorrect because the offence was a husband-and-wife dispute and his wife had made allegations against him. He had done nothing wrong while on duty as a security guard. He had applied for review because his security work was the family's only source of income and he also had a daughter aged almost 10 and was living with his wife. He understood that the legislation does not give the tribunal a discretion.

Consideration

This tribunal has jurisdiction to determine the present review application by reason of s 29 of the SI Act. The matter turns on statutory interpretation and does not involve evaluating the factual merits of the events giving rise to the proceedings, other than the existence of the relevant conviction.
As there had been no internal review of the respondent's decision, an order dispensing with internal review under s 55(4)(b) of the Administrative Decisions Review Act (ADR Act) 1997 was made, by consent.
The Commissioner revoked the applicant's licence under s 26(1A) of the SI Act, which provides that the Commissioner must revoke a licence where the Commissioner is satisfied that if the applicant were applying for a new licence, the application would be required by the Act to be refused. Section 16(1) sets out the circumstances in which refusal would be mandatory, including (a), that the applicant had, 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.
For the purposes of s 16(1)(a) the SI Act, cl 15(1)(c) of the Regulation provides that the following is a prescribed offence regardless of whether it is committed a New South Wales: "(c) An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being an offence in respect of which the penalty imposed includes any term of imprisonment (whether or not suspended), an intensive correction order, a community correction order, a conditional release order, a good behaviour bond, a community service order or a penalty of $200 or more".
The applicant was convicted on 31 July 2018 of an offence under s 59(1) of the Crimes Act, which provides that "Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years". The Local Court imposed a community service order of 75 hours cumulative.
Section 26(1) enumerates a number of grounds that give the Commissioner a discretionary power to revoke a licence, but in this instance the respondent relies on the mandatory revocation provisions in s 26(1A). In such cases the tribunal's role is a limited one. As O'Connor J noted in his ex tempore decision in Bourke v Commissioner of Police, New South Wales ([1998] NSWADT unreported), the SI Act licensing scheme has divided the manner in which licensing will be conducted into categories, where certain applications must be refused mandatorily and others where applications will be considered on a discretionary basis: "So we have got a licensing scheme that has mandatory elements to it and discretionary elements to it".
The tribunal in Bourke, a decision that has been followed in many subsequent cases, made it clear that the tribunal must refuse to grant a licence where the Act mandates refusal on the basis of certain offences set out in the regulation to that Act. It has no discretion in the matter. O'Connor J stated in that case that:- Having made those observations, it would be clear, I think to those listening that I consider the tribunal does not have any discretion of its own to exercise in relation to the various appeals that are before it this morning…. In light of those conclusions, I consider that the only role that the Tribunal can perform in relation to mandatory refusals of licences under the Security Industry Acts scheme is to consider any applications which may be made where there is a question as to the objective facts to which the Commissioner has relied.
His Honour then proceeded to explain what was meant by "objective facts": The cases make it clear...that the Tribunal is only able to proceed to satisfy itself that the objective facts, as they are called, upon which the Commissioner relied were properly relied on by the Commissioner. That clearly goes simply to the question of whether there was a conviction or a finding of a charge proven of a kind which fits within the parameters of section 16.
There is no dispute that within the period of 10 years before the application was made, the applicant was convicted (on 31 July 2018) of assault occasioning actual bodily harm and was sentenced to a community service order: exhibit R1, p 5.
There being no controversy about the objective facts, the issue in this case devolves into two sub-issues, (i) whether an offence under s 59(1) of the Crimes Act is a "prescribed offence", specifically an offence "involving assault of any description", and (ii) whether one of the penalties listed in cl 15(1)(c) was imposed.

Does s 59(1) create an offence involving assault of any description?

In Farah v Director, Department of Finance and Services [2014] NSWCATAP 23, the Appeal Panel noted that the provision there in issue referred 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" (at [39]). The tribunal could not look at the facts surrounding the offence to see if, in that particular case, the person had engaged in dishonest conduct: Our conclusion is that it 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, the offence must be one which involves dishonesty "without further inquiry" (at [42]).
In Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861, another case where the meaning of "offence involving dishonesty" was in issue, Bell J had said, "It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry" (at [32]).
Farah and Barber lay down the correct approach to be taken in the present matter. The Appeal Panel adopted that approach in Lokondo v Commissioner of Police [2017] NSWCATAP 137, a case which, like the present application, involved assault occasioning actual bodily harm within s 59(1) of the Crimes Act.
In light of those authorities, it follows without further inquiry that the offence under s 59(1) is an offence of "involving assault of any description" within cl 15(1)(c).

Was one of the listed penalties imposed?

The other sub-issue is whether the penalty imposed for that offence was one of the penalties prescribed in cl 15(1)(c). The applicant was made subject to a community service order of 75 hours. Community service orders are specifically mentioned in cl 15(1)(c). Consequently, it cannot be disputed that one of the prescribed penalties was imposed.

Other matters

The applicant raised a number of other matters relating to the offence and to his personal circumstances. Because, as was explained above, the tribunal has no discretion in cases under s 26(1A), they can be given no weight. Nevertheless, because Mr Mishra based his case on those facts and circumstances, it is desirable to say something about them.
First, the applicant submitted that the authorities cited on behalf of the respondent by Mr Di Carlo were inapplicable because his conviction was for a matter that arose between husband and wife. The fact that it was a case of domestic violence is of course not a mitigating factor. Furthermore, the assault was a serious one. The police fact sheet for charge H69034741, dated 30 July 2018, recites that when the couple married, there was an arrangement that the victim's father was to pay the accused money. Since the marriage, the applicant had physically and verbally assaulted the victim, as he believed he was underpaid by his wife's father. He was always demanding money from his wife but did not give her any money. He did not want their daughter and had not allowed her to live with them until six months previously.
On 11 July 2018 the victim was sitting on her bed with their daughter when the accused approached her demanding money. There was a disagreement about a credit card and the victim stated that she had no money. The applicant approached the bed and began assaulting the victim. The child became frightened and ran from the room. The applicant hit the victim in the stomach and legs, pulled her hair, squeezed and pulled on her hand and scratched her neck. The assault lasted for about half an hour. Later that day the applicant returned to the bedroom and began assaulting the victim again, punching her to the head and leg. Later that night the victim left the house with her daughter. As she had nowhere to go they stayed at the Nepean shopping centre for the night. In the morning they walked around Penrith until the victim was able to contact her friend.
She then went to Penrith police station where police observed that her right little finger was very bruised and swollen. She had large scratches on the right side of her neck, small cuts and bruises on her left hand and a bruise to the back of her neck. She complained that her head was still sore after she had been punched to the head.
The applicant claimed that he and his wife were now living happily together, but there is no evidence of any kind from his wife, and even if she had supported his assertion, it could make no difference to the result of the application as the tribunal has no discretion once the objective facts are made out.
The applicant also stressed that he is the family's only breadwinner and that his ability to support them has suffered from the revocation of his licence. He is working at part-time cleaning and similar jobs but is finding it difficult to manage, whereas his former employer has undertaken to give him a permanent position if he recovers his licence.
But as Farah and Barber make clear, when applying the SI Act mandatory revocation provisions, the tribunal is concerned only with the "objective facts", and not with the other facts and circumstances of the case. In any event Lal v Director-General, Department of Transport [2001] NSWADT 74, [47] and subsequent cases (e.g. Husain v Roads and Maritime Services [2017] NSWCATOD 8, [34]) have held that hardship to an applicant is not a factor that can be taken into consideration on review of licensing decisions. The applicant's submissions on that point are therefore of little assistance to the tribunal.

Conclusion

The reasons given above may be summarized in the following five propositions: 1. The Commissioner must revoke a licence where the licensee, if he were applying for a new licence, would have to be refused a licence (s 26(1A)); 2. a licence [application] must be refused if within the previous 10 years the applicant has been convicted of an offence prescribed by the regulations (s 16(1)(a)); 3. the offences prescribed by the regulations include an assault of any description for which the penalty imposed includes a community service order (cl 15(1)(c)); 4. the applicant has been convicted within the previous 10 years of an assault for which the penalty imposed included a community service order; 5. therefore, the Commissioner was required to revoke the applicant's license (s 26(1A)).
For those reasons, therefore, the decision under review must be affirmed.

Order 1. 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

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