Rogers v Commissioner of Police, New South Wales Police Force

NCAT Occupational|2019-05-14

Reasons for decision

On 14 March 2019, the applicant Mr Bruce Raymond Rogers applied to this tribunal for review pursuant to s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision made by delegate of the respondent on 12 October 2018 to revoke the applicant's class 2BC security licence number 000224020 issued under the Security Industry Act 1997 (NSW) (SI Act). An internal review had affirmed that decision on 11 February 2019, the applicant being notified of that decision on 14 February.
The ground given for the decision was that on 10 October 2018 the applicant had been convicted at Port Macquarie Local Court in his absence of the offence of larceny and fined $500. That conviction was annulled on 15 November 2018 by Price LCM at Port Macquarie Local Court. On 6 February 2019, the applicant entered a plea of guilty to larceny at Port Macquarie Local Court, was sentenced to a conditional release order without conviction for a period of two years under s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was ordered to pay Coles stores $401 by way of compensation.
The hearing was held at Sydney on 14 May 2019, the applicant appearing by telephone unrepresented.

The evidence

The respondent called no oral evidence but relied on the s 58 documents (exhibit R1, in two parts). That material included the police fact sheet dealing with the relevant offence, which stated that on 1 September 2018 the applicant had entered the Coles supermarket at Port Macquarie and had moved around the store selecting numerous grocery inferred items and placing them in a trolley. He filled the trolley with items with a total value of $401.49.
The applicant then pushed the trolley through the entry area near the top of the escalators, making no attempt to pay for the goods. He gave the trolley to his autistic son, who was at the front of the store. He then entered the store again and selected some items, which he took through the checkout and paid for. The applicant then approached his son who was with the trolley. The two were preparing to leave the area when stopped by staff. Police were called.
The applicant stated that he had made the decision to steal the items and that his son had nothing to do with it. He stated that he was suffering financial difficulties and stole the food to feed his family. He indicated that he was very remorseful for his actions and admitted that he had made no attempt to pay for the goods. The applicant has not at any stage disputed the accuracy of the fact sheet.
The applicant tendered a signed statement (exhibit A1). I noted on objection by Mr Searson that the statement contained factual allegations that were irrelevant to the issue as well as matters of comment, but I admitted the document subject to relevance and weight.
The applicant said that he is aged 59, has been married for 26 years and is the father to 3 children who have been diagnosed with severe brain disorders. He is currently employed as a security technician, having held a security licence for 5 years without issues and has been with his employer company for close to 18 years. His current role requires him to attend domestic and commercial jobsites such as hospitals, industrial sites and retirement villages to install, maintain and monitor security systems, and to liaise with third-party organizations such as the police. He has never had a complaint made against him when attending jobsites. His employer is aware of his situation but has stated that he could not afford to continue the applicant's employment if he were to lose his security licence.
His adult children are highly dependent on him and his wife and they are unable to work or live away from home. They receive no disability benefits. His youngest daughter has been diagnosed with pervasive development delay, atypical autism and convulsion epilepsy. One son has been diagnosed with autism, and the other currently has undiagnosed Asperger's. He and his wife have applied to Centrelink for disability pensions for the children five times over the last 10 years, but have been refused. His wife has also applied many times for a carer's pension but has not been accepted.
The applicant's wife does not currently work as she is the children's full-time carer. He is the sole income earner for the family. They are currently renting and if he loses his job, they would not be able to afford rent. He was diagnosed with ankylosing spondylitis at the age of 21. At his age he would struggle to find other employment and commence re-training. He maintains that he is an acceptable person within the community. He has been a volunteer with the State Emergency Services for 20 years and received a national SES medal for his service.
He was initially convicted of the relevant offence in his absence, but the conviction was annulled on 15 November 2018 with the assistance of a Port Macquarie Legal Aid lawyer. He explained to the lawyer that he was shopping with his son, trying to teach him how to purchase items from Coles. His son struggles with the simplest of tasks and managing his emotions in a public area, as sounds and people make him anxious. The applicant had previously shown his son how to scan items and pay for them. He left his son at the checkout to pay for the items and did some of his own shopping, saying he would meet him at the front of the store.
Unbeknownst to him, his son had not paid for the items and had come to him with the trolley of groceries. He had not thought to ask his son if he had paid, because he had shown him how to pay and thought he had made payment. They proceeded to leave Coles but were stopped by security, who informed him that the items had not been paid for and that police had been called. Having never dealt with that kind of situation before or with the police, and being unaware of what punishment awaited them, he feared the worst for his son and took responsibility for the taken goods. He feared that his son would go to prison if he did not do so and would be a vulnerable person if arrested. If frightened he would have a meltdown and would be unable to control his emotions.
When they were being interviewed by the police, his son was shaking and mumbling to himself. When he admitted taking the goods, he was unaware of what would happen to his licence and thought that Coles would simply ask him to pay for the goods. He had enough money to pay for them.
His lawyer advised him that his son was a key witness who would have to give evidence to verify the facts. Again, the applicant feared for his son and did not wish for him to be cross-examined in court. He did not think he would be able to handle it and thought that would impact negatively on him. He has the cognitive functions of a 12-year old child. His lawyer having advised him to make a "plea of convenience", he entered a plea of guilty on 23 January 2019 to prevent his son from giving evidence.
His son does not leave the house often, and the applicant values his safety and did not consider what the outcome on his licence would be. He believes his record shows him to be a person of good character and he never intends to find himself in a situation like that again. He is very remorseful for the events that transpired.
The respondent did not cross-examine the applicant on his evidence about the circumstances of the offence, his position being that it was irrelevant as the revocation provisions were mandatory in this situation. He did, however, take the applicant through the various substantive stages of the matter, including arrest, court appearances, sentence and revocation. The applicant did not dispute any of the relevant steps.

The submissions

The respondent relied on his written submissions (exhibit R2) in which, after correctly outlining the statutory framework of the matter, he pointed out that the tribunal had decided numerous cases on the SI Act and had consistently held that it must refuse to grant a licence where the Act mandates refusal on the basis of certain offences set out in the regulations to the Act. In Bourke v Commissioner of Police, New South Wales [1998] NSWADT (unreported), O'Connor DCJ had explained that in the case of the mandatory refusal provisions, the tribunal had no discretion of its own to exercise in relation to the appeals before him. The only role it could perform was to consider whether the "objective facts" relied on by the Commissioner were made out. Those facts were whether there was a conviction, or a finding of a charge proven of a kind fitting within the parameters of s 16.
In Farah v Director-General, Department of Finance and Services [2014] NSWCATAP 23, the Appeal Panel had held that the words "offence involving dishonesty" in the relevant legislation meant that the offence itself must involve dishonesty. It was not permissible to look behind the conviction for that offence to consider the particular facts of the case. The offence must be one that involves dishonesty without further inquiry. That did not mean that the relevant statutory provision had to contain the word "dishonest" or "dishonesty", and it might not, as is the case with offences such as stealing, robbery and false pretences.
In this case the objective facts had been made out. There had been a finding of guilt (as the applicant had pleaded guilty), without a conviction being recorded in relation to an offence involving dishonesty or stealing within the previous 5 years, an offence for which the maximum penalty exceeded the 3 months' imprisonment threshold set out in cl 15(1)(d). Accordingly the relevant provisions required the applicant's licence to be revoked.
The applicant at the hearing reiterated his submissions contained in exhibit A1 and added that he did plead guilty, in order to protect his autistic son. He himself had no criminal record and would never go out and steal goods from a store. He had said he needed the groceries because he was in financial difficulties, but he had the means to pay for them and had said that because his son was distressed. He accepted responsibility for his statements and his guilty plea, but he had admitted taking the goods without paying in order to shield his son. Nothing like that would ever happen again.

Consideration

This tribunal has jurisdiction to determine the present review application by reason of s 29 of the SI Act. The Commissioner revoked the applicant's security 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 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….
For the purposes of s 16(1)(b) of the SI Act, cl 15(1)(d) provides that the following is a prescribed offence regardless of whether it is committed in New South Wales: 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.
The applicant on 6 February 2019 entered a plea of guilty to larceny under s 117 of the Crimes Act at the Port Macquarie Local Court and was sentenced by Price LCM to a conditional release order without conviction for a period of two years under s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999. Such orders are made pursuant to s 10(1) of that Act, which states relevantly that "Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: …(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9)…."
Those provisions require that a court has found a person guilty of an offence. As the applicant pleaded guilty to the charge, the court was able to make a finding of guilt.
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 5 years before the licence application was made, the applicant was found guilty (6 February 2019) of larceny, with no conviction being recorded.
There being no controversy about the objective facts, the issue in this case devolves into two sub- issues, (i) whether an offence under s 117 of the Crimes Act is a "prescribed offence", specifically an offence "involving fraud, dishonesty or stealing", and (ii) the maximum penalty prescribed for it is imprisonment for 3 months or more.

Whether s 117 of the Crimes Act creates an offence involving fraud, dishonesty or stealing

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 that involved assault occasioning actual bodily harm within s 59(1) of the Crimes Act. See also Mishra v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 19.
As larceny literally involves stealing, it plainly falls within the scope of cl 15(1)(d). In addition, one of the ingredients of the mental element of the crime of larceny is dishonesty: R v Glenister [1980] 2 NSWLR 597 (CCA).
The facts of the present case suggest that the applicant was not actually guilty of fraud, dishonesty or stealing, as when he proceeded to the front of the store without taking the trolley through the checkout, he was acting under a mistake of fact, namely that his son had already paid for the goods in the manner the applicant had instructed him to do. One could argue that when he falsely told the police and the Coles staff that he had himself stolen the goods because he was unable to pay for them, he was speaking dishonestly, but by so doing he was not seeking any material advantage, quite the contrary. But in any event, as Farah makes clear, the provisions do not permit an inquiry into the applicant's state of mind or the circumstances that led to the finding of guilt.
It follows without further inquiry that the offence under s 117 is an offence "involving fraud, dishonesty or stealing".

Does the offence under s 117 carry the prescribed penalty?

Clause 15(1)(d) applies if the offence carries a maximum penalty of imprisonment for 3 months or more. The Crimes Act s 117 states that the punishment for larceny is imprisonment for up to 5 years. The penalty element of the provision is thus clearly satisfied.

Other matters

The applicant's evidence and submissions raised a number of matters relating to the offence and his personal circumstances. Because, as has been explained above, the tribunal has no discretion in cases under s 26(1A), they can be given no weight. Nevertheless, because Mr Rogers based his case on those facts and circumstances, it is desirable to say something about them.
To summarize, as was noted above, the applicant is the father to three children who have been diagnosed with severe brain disorders. His adult children are highly dependent on him and his wife and are unable to work or live away from home. His wife cannot work as she is the children's full-time carer, and the applicant is the sole income earner for the family. If he were to lose his security licence, his employment and family would be severely impacted. They receive no disability benefits - for what reason the applicant does not say. His son has been diagnosed with autism.
On the day of the incident the applicant had been shopping with his son, trying to teach him how to purchase items from Coles. His son struggles with the simplest of tasks and managing his emotions in a public area, as sounds and people make him anxious. His father had previously shown him how to scan items and pay for them and left him at the checkout to pay for the items in the trolley. He did some of his shopping and said he would meet him at the front of the store.
Unbeknownst to him, his son had not paid for the items and had come to his father with the trolley of groceries. He did not think to ask his son if he had paid because he had shown him how to do so and thought he had done so. When they were stopped by staff, and interviewed by police, he feared the worst for his son and took responsibility for the taken goods. He feared his son would go to prison if he did not do so and that his son would be vulnerable if he were arrested and became frightened. He would have a meltdown and would be unable to control his emotions.
To protect his son, he accepted responsibility for the taking of the goods, being unaware of what would happen to his licence as a result. He thought Coles would ask him to pay for the goods, and offered to do so. His lawyer advised him that his son would need to give evidence in order to support the applicant's account of the events, but he did not wish for him to be cross-examined as he did not think his son would be able to handle it.
The applicant stressed that he is the family's only breadwinner and that his ability to support them will suffer severely from the revocation of his licence. His employer has explained that unless he has a security licence, he could not continue to employ him.
Aged 59, the applicant's record, apart from a PCA in 1983, is unblemished. He has been married for 26 years and has worked for the same employer for 18 years. He can be accepted as a reliable and truthful witness. If this were a case turning on one of the discretionary grounds of licence revocation, he would have a substantial case for exercise of the discretion in his favour.
But as Farah and Barber make clear, when applying the SI Act mandatory revocation provisions, the tribunal is concerned only with the "objective facts", meaning the matters of legal record, 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 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 5 years the applicant has been found guilty of an offence prescribed by the regulations (s 16(1)(b); 3. the offences prescribed by the regulations include an offence involving fraud, dishonesty or stealing for which the maximum penalty is imprisonment for 3 months or more (cl 15(1)(d)); 4. the applicant has been convicted within the previous 5 years of an offence involving fraud, dishonesty or stealing for which the maximum penalty is imprisonment for 3 months or more; 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

Security Industry Act 1987(NSW)

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