Nguyen v Commissioner of Police

NCAT Occupational|2020-11-04

Introduction

The Applicant, Minh Tuan Nguyen, works in his wife's business, installing security shutters, window grilles and security doors in residential and commercial premises.
Mr Nguyen needs to be licensed under the Security Industry Act 1997 (the SI Act) to continue to carry out those activities. He applied to the licensing authority, the Commissioner of Police, but his application was refused by the Commissioner's Security Licensing & Enforcement Directorate (SLED). At Mr Nguyen's request, that decision was the subject of an internal review but the original decision was affirmed.
Mr Nguyen has now applied to the Tribunal for an administrative review of the decision to refuse his licence application.

Jurisdiction

Section 29 of the SI Act permits a person to apply to the Tribunal for an administrative review of any of a number of decisions made by the Commissioner, including the refusal or failure by the Commissioner to grant a licence. The section also provides that the review is to be conducted under the Administrative Decisions Review Act 1997 (the ADR Act).
Section 63 of the ADR Act provides that, in determining Mr Nguyen's application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For this purpose the Tribunal may exercise any of the functions conferred or imposed on the Commissioner. The Tribunal may affirm, vary or set aside the decision, and may make its own decision in substitution for the decision under review, or may remit the matter to the Commissioner for reconsideration.

The need for a licence

It is an offence to carry on a security activity in this State unless you have an appropriate licence authorising you to carry on the activity: SI Act, s 7.
A security activity includes, as relevant to this case, any of the activities of selling, installing, maintaining, repairing, servicing, or providing advice in relation to, security equipment, if the activity is carried on in the course of conducting a business or in the course of a person's employment (SI Act, s 4(1)).
Security equipment means any type of safe or vault, or any mechanical, electronic, acoustic or other equipment designed or adapted to provide or enhance security or for the protection of any property.
Mr Nguyen applied for a class 2B and a class 2C licence. It seems to be common practice within SLED to refer to a licence covering both subclasses as a '2BC' licence, even though each subclass authorises different activities.
A class 2B licence, among other things, authorises the licensee to sell, and provide advice in relation to, security equipment.
A class 2C licence authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith.

The refusal of the licence

The licence application was refused on two grounds: 1. The Commissioner was not satisfied that Mr Nguyen was a fit and proper person to hold the class of licence sought (SI Act, s 15(1)(a)); and 2. The Commissioner considered that the grant of the licence would be contrary to the public interest (SI Act, s 15(3)).
Ground (a) cited by the Commissioner is a mandatory refusal ground: s 15(1)(a) says the Commissioner must refuse the application in that circumstance. Ground (b), on the other hand, is discretionary: s 15(3) says the Commissioner may refuse the application in that circumstance.
On internal review, the refusal decision was affirmed, on the same grounds.
The review officer said - perhaps unnecessarily - that s/he was 'satisfied that [Mr Nguyen] is not a fit and proper person to hold a security licence'. That is a negative finding against Mr Nguyen, rather than a failure to make a positive finding in his favour, which is all the SI Act requires.
Also, the review officer said s/he 'consider[ed] that it is not in the public interest for [Mr Nguyen] to be granted a security licence'. That finding differs from the language of the SI Act, which directs attention to whether the decision-maker considers the grant of the licence would be contrary to the public interest. It is at least theoretically possible for the grant of a licence to be 'not in' the public interest without it being 'contrary to' the public interest.
It is important for administrative decision-makers to pay close attention to the language of the legislation they are applying. There is a big difference between being satisfied that someone is not a fit and proper person, and failing to be satisfied that someone is. Equally, if a decision depends on the decision-maker considering that an outcome is 'contrary to' the public interest, then a view that the outcome is 'not in' the public interest may not actually answer the statutory question. If the language in the reasoning doesn't agree with the language in the statute, then it may be that the wrong question was asked and answered, and that the decision-maker failed to perform his or her statutory function.
In any event, what concerned the Commissioner's delegates was Mr Nguyen's conviction, in October 2019, of the offence of 'conceal serious indictable offence of another person'.
The Facts Sheet tendered to the Campbelltown Local Court in relation to that offence discloses that NSW Police had a property in Eagle Vale under surveillance, suspected of being used for the cultivation of cannabis. Mr Nguyen attended the premises for about two hours on 5 April 2018. A short time after Mr Nguyen left the premises, two vehicles that had been parked outside also left the premises. When Police stopped those vehicles they found 8.5 kg of freshly harvested cannabis leaf. A subsequent search of the premises discovered, according to the Facts Sheet, 'a fully equipped indoor hydroponic set up purposely built to grow cannabis plants over 3 levels inside the house'.
Mr Nguyen's attendance at the property and failure to report the cannabis-growing operation to the Police led to his being charged under s 316(1) of the Crimes Act 1900. He was convicted and placed on a 'conditional release order' for a period of 18 months, commencing in October 2019 and concluding in April 2021.

Mr Nguyen's evidence and submissions

The evidence Mr Nguyen provided to the Tribunal comprises: 1. A written statement he made on 27 September 2020; 2. Two letters from Dr Andrew Talbot, an ear nose and throat surgeon, dated 29 July 2011 and 24 September 2018; and 3. Three character references.
In his statement Mr Nguyen explains that he and his wife have worked very hard in the last 18 years to support their family. After a varied career they are now 'finally running a business that we thoroughly enjoy, and that is suitable for our family and tight schedule'.
Mr Nguyen claims not to have been aware that cannabis was being cultivated in the Eagle Vale property. He puts this down to his chronic airway restriction and hyposmia, matters which are mentioned in Dr Talbot's letters. These conditions, he says, explain why he did not detect what the Police claim was a 'strong smell of cannabis' inside the property and, it may be inferred, why he did not report the activity to the Police.
The character references provided to the Tribunal speak of Mr Nguyen's willingness to assist with fundraising and training for a local soccer club, his 'positive aspect on life', that he is a 'very reliable and honest person to deal with'. Mr Nguyen's wife herself provided one of the references; she notes his many years of law-abiding behaviour and says he presents no threat of harm to the community.
Mr Nguyen submits he is a fit and proper person to hold a licence and that the grant of a licence would not be contrary to the public interest.

The Commissioner's submissions

In the Tribunal, the Commissioner's reliance on ss 15(1)(a) and 15(3) of the SI Act ('fit and proper person' and 'public interest' respectively) took a back seat to s 16(1)(a). That section specifies another mandatory refusal ground: the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: 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.
Clause 15 of the Security Industry Regulation 2016 (the SI Regulation) prescribes the offences that disqualify an applicant, for the purposes of s 16(1) of the SI Act. Specifically, clause 15(1)(d) of the SI Regulation prescribes the following types of offences as offences which automatically disqualify a person from holding a licence, provided a conviction has been recorded within the period of 10 years before the application for the licence was made: An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.
In the event that the Tribunal does not accept the submissions in relation to s 16(1)(a) of the Act and clause 15(1)(d) of the SI Regulation, the Commissioner relies in the alternative on the 'fit and proper person' and 'public interest' provisions.

An offence involving fraud, dishonesty or stealing?

The first question, for the purposes of clause 15(1)(d) of the SI Regulation, is whether the offence of 'conceal serious indictable offence of another person', of which Mr Nguyen was convicted in October 2019, is an offence involving fraud, dishonesty or stealing. The Commissioner submits it is an offence involving dishonesty.
Section 316(1) of the Crimes Act sets out the offence, as follows: 316 Concealing serious indictable offence (1) An adult - (a) who knows or believes that a serious indictable offence has been committed by another person, and (b) who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and (c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority, is guilty of an offence.
An Appeal Panel of this Tribunal considered the meaning of the expression 'offence involving dishonesty', for the purposes of s 16 of the Property Stock and Business Agents Act 2002 (NSW), in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23. At [26] the Appeal Panel settled upon the Macquarie Dictionary definition of 'dishonesty' as (1) lack of honesty; a disposition to lie, cheat, or steal; (2) a dishonest act, as a fraud or theft.
The Appeal Panel noted at [31]: To be an 'offence involving dishonesty' the relevant statutory provision does not have to contain the word 'dishonest' or 'dishonesty'. Examples of offences which come within the ordinary meaning of dishonesty offences are stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud: Barber v Law Society of NSW (No 2) [2001] NSWSC 361 at [32]. Perjury is another example. There is also clear authority that obtaining money by false or misleading statements is an offence involving dishonesty: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 668-669; Doja v R [2009] NSWCCA 303 at [174]-[179].
After dealing with some earlier cases (including RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49) where the relevant expression had been interpreted as allowing reference to the circumstances of an offence, not merely the terms of the offence provisions, the Appeal Panel stated its preference for 'the narrower approach of confining the Tribunal's consideration to the offence itself', explaining itself as follows: [39] Firstly, 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. The applicant's counsel gave an extreme example to illustrate the consequences of adopting that interpretation. If a person is convicted of murder but dishonestly lured the person to a remote location before killing that person, the offence would be one involving dishonesty. [40] Secondly, if the broader interpretation is applied, there would be a practical onus on the person to prove that he had not acted in a dishonest manner or did not have a dishonest state of mind. In relation to the factual situation in Sharp Towing, the applicant would have to prove that he did not act dishonestly in charging a particular fee. That would require a separate factual inquiry and decision on the part of the decision maker. It is unlikely that the legislature intended that such an inquiry be carried out in circumstances where disqualification is mandatory upon conviction of a particular kind of offence. [41] Thirdly, for the reasons we have given, the phrase should not be given a broad interpretation because the effect of disqualification is that a person will lose their livelihood. [42] 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".
The reference in Farah [42] to 'the words of Bell J' is a reference to Barber v Law Society of NSW (No 2) [2001] NSWSC 361, where her Honour concluded at [32] that an offence involving dishonesty 'must be one which answers that description without further inquiry'.
The Appeal Panel in Farah went on to explain the approach to adopt when addressing the question whether a particular offence is an offence 'involving dishonesty'. That is to examine the elements of the offence, and determine whether any act or omission involved in the offence comes within the ordinary meaning of dishonesty (as to which, see [31] of these reasons, containing the meaning of the word 'dishonesty' - a meaning I adopt).
The elements of the offence under s 316(1) of the Crimes Act are: 1. The perpetrator knew or believed that a serious indictable offence had been committed by another person; 2. The perpetrator knew or believed that he had information that might be of assistance in securing the apprehension, prosecution or conviction of the offender; and 3. The perpetrator failed without reasonable excuse to bring that information to the attention of the NSW Police Force or other appropriate authority.
The issue boils down to the question whether the third element, the failure to notify the Police of the other person's criminal activity, is an act or omission involving dishonesty. And in answering that question it is not to the point that Mr Nguyen claims to have been unaware of that criminal activity - because it follows from his conviction that he has been found to have known (or at least believed) that a serious indictable offence had been committed by someone else. Furthermore, he did not even need to know that the other person's criminal activity amounted to a 'serious indictable offence'; he could still be convicted whether or not he knew that was the case: Crimes Act, s 313.
During the hearing I expressed my preliminary view that Mr Nguyen's offence is not an offence involving dishonesty. On further reflection and consideration of some additional authorities I believe my preliminary view was wrong.
There is nothing in the accepted meaning of 'dishonesty' that requires a person to commit a positive act; a failure to act, or an omission, can also amount to dishonesty. That view has been taken before in security industry licensing matters: see for example Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 17. In that case Deputy President Hennessy was considering whether a conviction for 'goods in custody' under s 527C of the Crimes Act was a conviction for an offence 'involving fraud, dishonesty or stealing' - language that is identical to that under consideration here. Specifically referring to the question of dishonesty the Deputy President said (emphasis added): [18] … A person would be acting dishonestly or deceitfully where that person fails to disclose to police that goods have come into his or her custody in circumstances where that person has reasonable grounds for suspecting that the goods have been stolen or otherwise unlawfully obtained. The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act. [19] It does not make any difference to this conclusion whether the goods in the person's custody have been stolen or obtained by some other unlawful means. The person has still acted dishonestly or deceitfully by failing to take any action which would bring the situation to the attention of police.
I respectfully agree with the highlighted statements set out above. Even though they were made in the context of s 527C of the Crimes Act, rather than s 316(1), they are statements of general principle that apply with equal force to the provision under consideration here. The correctness of the statements is not undermined by the fact that they pre-date the Appeal Panel's decision in Farah, nor by the fact that in Joyce the Deputy President was considering the circumstances of the offence, not merely the terms of the offence provisions.
The critical element of the offence of which Mr Nguyen was convicted, the element of failing to notify the police of the serious indictable offence being committed by another person, involved dishonesty on Mr Nguyen's part. It follows that he has been convicted of an offence involving dishonesty, in accordance with the reasoning of the Appeal Panel in Farah.

An offence with a maximum penalty of imprisonment for 3 months or more?

The second question, for the purposes of clause 15(1)(d) of the SI Regulation, is whether the maximum penalty on conviction under s 316(1) of the Crimes Act is 3 months imprisonment or more.
The maximum penalty provided in s 316(1) is imprisonment for: 1. 2 years - if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or 2. 3 years - if the maximum penalty for the serious indictable offence is more than 10 years imprisonment but not more than 20 years imprisonment, or 3. 5 years - if the maximum penalty for the serious indictable offence is more than 20 years imprisonment.
Therefore, even if the serious indictable offence (committed by the other person) is at the lower end of seriousness, the maximum penalty to which the person convicted under s 316(1) is exposed is 2 years imprisonment. That is more than the threshold provided for in clause 15(1)(d) of the SI Regulation.

Conclusion

In the context of s 16(1)(a) of the SI Act, I am satisfied that Mr Nguyen has, within the period of 10 years before he applied for his security licence, been convicted of an offence prescribed by the regulations. Specifically, he has been convicted of an offence involving dishonesty, and in respect of which the maximum penalty is imprisonment for 3 months or more.

Decision

In those circumstances I am compelled to affirm the Commissioner's decision to refuse to grant a security licence to Mr Nguyen.
That is a very harsh outcome for Mr Nguyen, particularly where the penalty imposed on him on conviction under s 316(1) of the Crimes Act was that for a period of 18 months he must not associate with, or be in the company of, a named individual - presumably the individual who was committing the 'serious indictable offence'. Given that he could have been imprisoned for 2 years or more, it seems his offence was regarded by the Court as standing at the lower end of the scale.
It is harsh also for the fact that Mr Nguyen appears to have been a competent installer of security equipment, seems to have attracted no complaints about his ability, expertise or reliability, and may very well be a fit and proper person to hold a licence. Because of the way the law operates, it is unnecessary to consider his fitness and propriety to hold a licence, as his application for a licence has to be refused in any event.

Order 1. 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: 18 December 2020

Property Stock and Business Agents Act 2002(NSW)

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