Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wilson v The Commissioner For NSW Fair Trading [2014] NSWCATOD 79 Hearing dates: 4 July 2014 Decision date: 21 July 2014 Jurisdiction: Occupational Division Before: Naida Isenberg, Senior Member Decision: 1. The decision under review to refuse the applicant a certificate of registration as a real estate salesperson under the Property, Stock and Business Agents Act 2002 is set aside, and in substitution the decision is made that the certificate be granted. Catchwords: real estate salesperson - offences - time since committed - whether trivial Legislation Cited: Property, Stock and Business Agents Act 2002 Cases Cited: Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37 Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 Parvin v Commissioner for Fair Trading [2005] NSWADT 34 Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284 Song v Commissioner for Fair Trading NSW Office of Fair Trading [2006] NSWADT 218 Bek v Commissioner for Fair Trading [2004] NSWADT 149 Category: Principal judgment Parties: Sam Wilson (Applicant ) Commissioner For Fair Trading (Respondent) Representation: T Murray (Applicant ) S Robosa, Department of Fair Trading (Respondent) File Number(s): 1420126 reasons for decision 1Sam Wilson, the applicant, applied for a certificate of registration as a real estate salesperson ("certificate") under the Property, Stock and Business Agents Act 2002 ("PSBA Act"). His application was refused by the Respondent and upon internal review. He seeks review by this Tribunal. THE LEGISLATIVE FRAMEWORK Section 16- Disqualified Person 2Section 14(3)(d) PSBA Act provides that a person is eligible to hold a certificate, only if that person is not a disqualified person. 3The term "disqualified person" is relevantly defined by s.16(1)(a) as being a person who "has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Director-General has determined under subsection (2) that the offence should be ignored". 4Section 16(2) provides that a conviction for an offence involving dishonesty may be ignored "because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence". BACKGROUND 5The applicant lodged his application for a certificate ("the application") on 8 October 2013. While he was found to have met the qualification requirements, the application was refused on the basis that he is a disqualified person for purposes of the PSBA Act because he had been convicted of 4 shoplifting offences - in 2003 and 2004 ("the earlier offences"), and in June and December 2012 ("the 2012 offences"). The earlier offences related to having shoplifted razor blades and alcohol, respectively. The 2012 offences related to shoplifting headphones and soft drink, respectively. "Shoplifting" was considered by the Respondent to be an offence involving dishonesty; the acts giving rise to the offences were not regarded as trivial; and insufficient time had passed since the commission of the 2012 offences. Consequently, the offences could not be ignored. ISSUE 6There was no dispute that the offences involved dishonesty. The only issue then was whether the offences could be ignored in accordance with s.16(2) of the PSBA Act. CONSIDERATION 7The construction of the discretion in s.16(2) of the PSBA Act was considered by the Appeal Panel in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37. At [34] the Appeal Panel noted that there were only 2 factors to be taken into account in the exercise of this discretion, namely the time that had passed since the offence was committed, and the triviality of the acts or omissions giving rise to the offence. Has sufficient time lapsed to warrant an exercise of the discretion to ignore the offences? 8I did not understand the Respondent to submit that the earlier offences should not be ignored. I consider that the offences were committed now about 10 years ago. In my view, they may be ignored due to the elapse of time. 9As to the 2012 offences, they were committed nearly 2 years, and 18 months, ago, respectively. I do not consider that they can be ignored on the basis of the time that has passed since they were committed, per se. 10The applicant gave impressive evidence about how his life has changed since the time of the 2012 offences. There have been 2 key factors in this change. Firstly, since early 2013 he has married and his wife is shortly to have a baby. He has acquired a large supportive extended family with whom he is close. This has provided him with domestic stability, in marked contrast to his experiences throughout his life up until that time. He gave evidence that his wife would not tolerate any return to unacceptable conduct on his part. 11Secondly, he has had the extraordinary good fortune to have been taken into what his solicitor described from his own knowledge, as "the McGrath (Real Estate) family". By chance the applicant has found his way into a prestigious real estate business as an administrative assistant to one of its senior sales agents, Ms Berlyn. He is justifiably proud of his achievement. He had been subjected to a rigorous selection process involving multiple interviews and some computer-based testing in order to secure the position. He said he disclosed his offences at the very outset. There was evidence that a copy of his police record had been provided to the 'Head of People'. He is being groomed to have a more active role but until he has a certificate, his role is limited. An expanded role will include, for example, attending at open homes. 12The applicant produced some very impressive references from his employer - Mr McGrath, the CEO of the company, Mr Lucas, the COO, and Ms Berlyn. All were aware of his shoplifting offences. 13The applicant also gave evidence that he voluntarily participates in some McGrath-initiated welfare activities which benefit the homeless. He is 'passionate' about these activities because of his own background. 14The applicant gave evidence, which I accept, that he would do nothing to jeopardize his current work situation. I think it is a matter of common -sense that any dishonest conduct would likely to lead to immediate dismissal. His family depends on him as the provider and he intends to never go back to his previous lifestyle. He recognizes that he has everything to lose if that should occur. 15The applicant had attempted in his dealings with the Respondent to downplay the 2012 offences. In his application, for example, he claimed the items which he stole were baby formula and nappies and a bottle of milk. He claimed all of the offences occurred because he had no job and had no way to feed himself or his daughter (from a previous relationship). His evidence was that he was rushing to complete the application and did not pay attention to the detail and that, at the time, he did not have his police record available to him. He conceded he had tried to understate the nature of the offences, hoping they would not be checked in detail. He desperately wanted the certificate so he could progress at McGrath's and conceded that his actions were naïve. 16The applicant provided a report from Dr K. Akkerman, consultant psychiatrist, dated 16 May 2014. The applicant relied on Dr Akkerman's expert view that his "propensity to shoplift or steal in the future is quite low". The Respondent submitted a 'quite low' risk of re-offending was not sufficient for the 2012 offences to be disregard. The Respondent submitted that, in any event, Dr Akkerman's opinion should be rejected because the report failed to include the reasoning process by which the doctor arrived at his opinion, and, in any event, the doctor had interviewed the applicant only once for the purpose of this application for review. I agree, and attach limited weight to the doctor's assessment. 17As to treatment, the applicant had attended support groups, weekly for one year and he had seen two psychologists, some time ago. He had not had any "treatment" for the last two years. In his evidence the applicant said that he could not afford psychological assistance and had instead engaged in self-help remedies such as courses, yoga and meditation. He also found his charity work through McGrath's to be therapeutic. 18A report dated 3 September 2013 by Dr M Gliksman, occupational physician and former patron of the Foster Care Association, was provided. Dr Gliksman had known the applicant since he was 10 years old and had re-established contact with him as a young adult. The doctor did not state that he was aware of the 2012 offences, but referred to 'some earlier mistakes - understandable given the lack of suitable guidance in the past'. The doctor considered him to be 'remarkable young man', with 'virtues of optimism, intelligence and a willingness to trust that belies his childhood experiences'. 19In O'Connor the Appeal Panel specifically held that "the triviality of the acts or omissions giving rise to the offence" in s.16(2) invites an examination of the conduct of the person at the time the offence was committed, and that the Judicial Member at first instance had erred in taking into account what the applicant in that matter had done since the offence in question. I am bound by the decision of the Appeal Panel. I therefore can place no weight on the remarkable turnaround in the applicant's life. 20Neither representative was able to provide any further assistance in relation to 'trivial'. The Respondent referred to a number of other cases, which involved either comparatively large sums of money (about $7,000 in Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186), the very serious offence of producing another person's licence, which resulted in a custodial sentence (Parvin v Commissioner for Fair Trading [2005] NSWADT 34), or assault occasioning actual bodily harm and the applicant still being subject to a good behaviour bond at the time of application (Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284). None of these cases were helpful in addressing triviality. The Respondent also referred me to Sakellis v Officer in Charge of Police, Paddington [1968] 88WN 541 in relation to the concept of honesty but I did not find that case helpful. 21The Respondent also referred me to Song v Commissioner for Fair Trading NSW Office of Fair Trading [2006] NSWADT 218, but there the conviction was recorded and the events giving rise to it arose after the applicant had made his application for a certificate. JM Molony considered less than 2 years which had elapsed since the conviction for "Goods in personal custody suspected of being stolen" was insufficient time to allow the conviction to be ignored because of the passing of time. 22The applicant attributed his offences to a difficult upbringing, details of which were contained in the information he provided to the Tribunal. That background was not challenged by the Respondent. The Respondent in submitting that it is significant that the 2012 offences were committed when the applicant was 27 years old, seemed to me to seek to reduce the weight of the applicant's submission which had related to his very troubled childhood and youth. 23The applicant did not attempt to excuse his conduct. He acknowledged that he had stolen. At the time of at least the first 2012 offence he was unemployed, according to the history given to Dr Akkerman, although his work history appears to be somewhat unclear. There was no indication on the police charge sheets as to whether he was employed at the time of the offences. The applicant's account was that he needed that the earphones for his TAFE course. As to the 2012 offences generally he said he was naïve to think that he could get away with it. The total monetary value was about $130. The Respondent conceded that the applicant's offences are at the lower end of seriousness. 24The Respondent also referred to Bek v Commissioner for Fair Trading [2004] NSWADT 149, in which Mr Bek had been convicted of "Driver/Rider State False Name or Address" and was fined $300. JM Montgomery agreed that it was an offence at the lower end of the scale and held that "given the nature of Mr Bek's offence, three and a half years is sufficient" to warrant ignoring the offence. I do not understand however that decision to suggest that for all offences 'at the lower end of the scale' that 3½ years is some benchmark for the exercise of the discretion. 25It is unsurprising to me that in the cases upon which the Respondent relied, referred to above, the Tribunal declined to exercise the discretion; the offences in all those cases were considerably more serious than shoplifting. In Bek JM Montgomery, after reviewing some authorities, held that the period of time sufficient to warrant an exercise of the discretion to ignore the offences must be linked to the offence for which an applicant has been convicted: at [37]. I consider the approach in Bek in linking the period of time sufficient to warrant an exercise of the discretion to the offence for which an applicant has been convicted, to be a sensible one. For example, offences involving large sums of money (as in Hunt v Director General, Department of Services Technology and Administration), or assault occasioning actual bodily harm (as in Nizhnikov v Commissioner for Fair Trading) are likely to require a longer period before which they could be safely ignored, given that one of the underlying purposes of the PSBA Act is consumer protection: Second Reading Speech 9 May 2002. 26Adopting the approach in Bek, I consider that 18 months since the applicant's last shoplifting offence, is sufficient to warrant the exercise of the discretion to ignore the 2012 offences. DECISION 27The decision under review to refuse the applicant a certificate of registration as a real estate salesperson under the Property, Stock and Business Agents Act 2002 is set aside, and in substitution the decision is made that the certificate be granted. ********** 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: 21 July 2014