Joel v Commissioner for Fair Trading

Should the Applicant's dishonesty convictions be ignored?

1. It is for the Tribunal to decide whether the acts giving rise to the dishonesty offences were trivial or whether sufficient time has passed since those offences were committed.

Should the Applicant's offences be regarded as trivial?

1. In Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37 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.
2. Each of the dishonesty offences involved a similar scenario and occurred over a period of 4 months at a time when the Applicant was homeless. On eight different occasions, the Applicant entered a restaurant, ordered food and beverages which he consumed and then either attempted to leave the restaurant without paying or admitted to restaurant staff that he could not pay for the meal. Police would be called, and the Applicant, charged. Based on the compensation amounts that the Applicant was ordered to pay on conviction, albeit on only 2 of the occasions, the individual monetary amounts involved appear to have been no more than $175 on each occasion.
3. The maximum penalty for each of the dishonesty offences is 10 years' imprisonment, if the matter is referred to the District Court, or 2 years for each offence if an offence remains in the Local Court: s 192E of the Crimes Act 1900. Also available to a court that has sentenced an offender to imprisonment in respect of one or more offences is an intensive correction order (ICO) directing that the sentence be served by way of intensive correction in the community: s 7(1) Crimes (Sentencing Procedure) Act 1999. Community correction orders (CCOs) were introduced as a sentencing option following the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 on 24 September 2018. CCOs can be imposed for offences that do not warrant imprisonment or an ICO. In the Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill, NSW Legislative Assembly Debates, 11 October 2017, the Attorney General, the Hon M Speakman SC, said the new CCO offered a non-custodial alternative to full-time imprisonment so "offenders can receive supervision to tackle their offending behaviour and be held accountable".
4. The Applicant said he was inadequately represented in the hearings but contended that, nonetheless, it was apparent to the magistrates that the offences were trivial, and he pointed to hierarchy of sentences. There was no direct evidence, such as transcripts, to demonstrate that the various magistrates had actually described the offences as trivial, although in the context of the sentencing regime, the penalties awarded to the Applicant for the dishonesty offences were very low - ranging from a $50 fine and compensation to CCOs for some offences with counselling for grief, life coaching, drug and alcohol rehabilitation and mental health (treatment).
5. The Respondent submitted that the offences cannot be considered trivial because of the imposition of two-year CCOs.
6. The Applicant observed that the CCOs in respect of the dishonesty offences have recently been suspended. The result is that there is no further obligation on the Applicant to attend Community Corrections and report, but the Applicant remains subject to the CCOs until they expire on 25 June 2021. The Applicant relied on the suspension of both of CCOs as further evidence that his offending was "trivial", otherwise, he submitted, Community Corrections would not have suspended the CCOs. The Applicant said Community Corrections does a risk assessment and he was regarded as being at extremely low risk of re-offending, and consequently the offences are trivial. There was no evidence of Community Corrections processes in relation to the suspension, but the Respondent had made its own enquiries and agreed that the CCOs have been suspended.
7. The Respondent submitted that, as the Applicant committed the same offence eight times, his conduct necessarily involved some planning. The Applicant denied that he had planned the offences. He said that although he was dressed poorly and smelt, he was not challenged on entry to the restaurants. The Respondent also submitted, notwithstanding that on each occasion the Applicant was arrested, charged, remained in the cells for hours (and sometimes overnight) and was convicted, he continued to offend. The Respondent submitted, and the Applicant agreed in his evidence, that he was aware of community vans that distribute food to the homeless. The Applicant said that he was mentally ill, and not thinking logically about alternatives.
8. The Applicant's evidence, which I accept, was that he had had no criminal convictions at all until these matters. The Applicant submitted that all of the offences occurred between February and April 2019 during the period when he was homeless between October 2018 to June 2019. The Applicant also said that at the time of the offences, he was suffering mental illness. The Applicant said that, in any event, his mental state was reflected in the penalties which had been awarded.
9. The Applicant said that the causal event that led to his downward spiral, was the death of his father in January 2018. His mother informed him of his father's death by text, did not inform him or any other family members about the funeral and sold the family home without consultation. After that, his brother was readmitted to a psychiatric hospital, where he remains, after struggling with addiction for many years.
10. Between January and June 2018 the Applicant said, he became very depressed but he did not seek help at that time. The traumatic incidents in his personal life caused him a significant amount of distress, making it difficult for him to concentrate and to continue to function at work, and he lost his job in August 2018. As a result, he could no longer afford to meet his rent and he was evicted. He committed the dishonesty offences because he was homeless and hungry.
11. The Applicant relied on the report of Dr Paul Pusey, Clinical and Forensic Psychologist dated 21 February 2021 which had been prepared for the Applicant's most recent court attendance in February this year. Dr Pusey noted that the Applicant attributed the dishonesty offences to the impact of significantly negative changes in his psychosocial circumstances on his functioning and behavioural decision making. Contrary to the Applicant's assertion, Dr Pusey did not go so far as to attribute a diagnosis to the Applicant's condition at the time of the dishonesty offences.
12. I accept that the Applicant committed the dishonesty offences at a time when he was homeless, having spiralled downwards following the death of his father and his mother's bizarre response. There was no evidence that at the time he was mentally ill as he contended, and he conceded he had not sought assistance. The Applicant told Dr Pusey that his substance abuse problem started in April 2018. It is clear he was unwell and this was reflected in the CCOs which ordered him to undergo grief counselling, life coaching, drug and alcohol rehabilitation and mental health treatment for 2 years. While one dishonesty offence such as he committed might be disregarded as trivial, I cannot ignore the fact that there were multiple dishonesty offences. It would be incorrect in my view, to ignore the commission of multiple offences, however minor, even given the Applicant's circumstances, each alone might be.

Has sufficient time elapsed since the offences?

1. The Applicant submitted that it was not as simple as calculating the time since the offences. He said consideration should be given to how his life has changed since that time, and that he is now back to how he was before the life stressors which resulted in his homelessness, and ultimately, the dishonesty offences. The Respondent, on the other hand, submitted that insufficient time has passed since the offending to allow the Applicant to be safely accredited to the public to hold a Class 2 Real Estate Agents Licence. Moreover, the Respondent submitted, there has been insufficient time between the offending for the Applicant to satisfactorily demonstrate that he is a changed person.
2. The Applicant reportedly told Dr Pusey that between June 2019 and February 2020 he was trying to get his life back on track but throughout this period, he was struggling with depression and alcohol. By April 2019, he reported to Dr Pusey, his problem was severe - he was drinking a lot and also using a lot of cocaine. In March 2020 the Applicant told Dr Pusey that he was unable to stop drinking, because it "just numbs the situation". At the time he was drinking up to 30 standard drinks every day. In April 2020 he suffered a "brain seizure" and was admitted to Sutherland Hospital. He was discharged after a week but continued speaking with their drug and alcohol support team. He said he had had 2 "brain seizures" due to excessive alcohol intake. The Applicant said he has been sober now for more than 12 months.
3. The Applicant told Dr Pusey that he commenced using cannabis at the age of 14 and continued for 7 years, with occasional cocaine, and that his use of substances derailed his promising athletics career. With respect to his cocaine use, he said that he had used it only twice before [a named person] died, then it became 3 grams per day for months. He said he "went crazy" and only stopped using when he ran out of money, which, according to his evidence about when he became homeless, would be from about October 2018. In contrast, at his assessment in March 2020, the Applicant told Dr Pusey that substance use was not a problem for him before the incident that gave rise to the February 2020 offences, which are discussed below. The accounts of the Applicant's use of illicit drugs are therefore inconsistent.
4. In January 2019 the Applicant was admitted to a psychiatric hospital to undergo counselling after attempting suicide. The Applicant told Dr Pusey that he made "multiple" suicide attempts in January 2019 for which he was briefly admitted to a psychiatric hospital. At his assessment in March 2020, the Applicant described to Dr Pusey experiencing ongoing suicidal ideation. He acknowledged that "I've even planned it out a few times. I hope that I can turn things around, I'm not sure what prevents me from doing it".
5. The Applicant said that in June 2019, after spending the required six months on Newstart, he was able to access $10,000 of his superannuation. He said he used the money to buy some new clothes and rent a room, so he could start getting his life back on track. He was able to move off Newstart and onto the NSW government's NEIS business program, which provided him with an income. As part of the program he developed an online web app which helps raise money for charity, including some of the groups who helped him while he was homeless. I observe that the Applicant was convicted in June 2019 of common assault. Another CCO expiring on 25 June 2021 was ordered.
6. The Applicant was also charged in relation to offences of 7 February 2020 of "resist or hinder Police officer in the execution of duty" and "use offensive language in/near public place/school". That charges were dismissed under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990. Although this was not an offence of dishonesty, it is relevant though, that it occurred after the Applicant claimed to have rehabilitated himself. The medical evidence is that he was at that time, unwell.
7. Dr Pusey wrote that at the time of the 2020 offences the Applicant would have met the diagnostic criteria for Adjustment Disorder with Depressed Mood and also a likely Substance Use Disorder and possibly a Major Depressive Disorder. The stressor relating to his condition, was in Dr Pusey's view, the difficult interaction he had with his neighbour prior to the police arrival, in addition to the impact of the unresolved psychosocial stressors which predated this interaction occurring.
8. Based upon the Applicant's presentation in February this year, Dr Pusey's view that his risk of recidivism is low. The Applicant had expressed a high level of motivation to maintain his current abstinence from illicit substance use and appears to be engaging in strategies aimed at resolving his ongoing psychosocial stressors.
9. The Applicant said in his evidence that he had suffered 4 psychiatric conditions but that Dr Pusey says none are current. I do not accept that the Applicant is free from mental illness, as Dr Pusey does not express that view, contrary to the Applicant's assertion. In his report Dr Pusey set out an appropriate treatment pathway for the Applicant with the aim of addressing the following areas: a. Support the continued development of insight into his identified psychological vulnerabilities, the role that they played in the commission of his offending behaviour and the ability to better identify his early warning signs and plan how to respond to them in prosocial ways which reduce his level of recidivism risk to the extent that his cognitive deficits allow him to do so. b. Support his ability to maintain his desired abstinence from substances. c. Address the impact of his historical traumas on his current functioning and both emotional and behavioural decision making.
10. Dr Pusey recommended that the Applicant engage in a period of psychological treatment with a qualified Clinical or Forensic Psychologist with specialised experience in the treatment of trauma and substance pathology for a period of 6 months in order to address these areas. Dr Pusey observed that the Applicant "appears to have already commenced the process of creating a context aimed at supporting his engagement in more prosocial thinking, through his move to more affordable accommodation, his attempts to diversify his vocational options and his development of more prosocial methods of addressing his ongoing psychosocial stressors." Of concern though, is Dr Pusey's observation that the Applicant had a lack of insight into the value he would obtain from the treatment process the doctor proposed. Dr Pusey, in my view, was unlikely to have outlined such a treatment plan, if the Applicant were free from mental illness.
11. By July 2020, he said, he was healthy and that his business venture was doing well. In his submission for internal review he wrote that he had just been offered a full-time position with a local real estate agency pending the outcome of these proceedings. No evidence of the offer was provided at the hearing, as might have been expected. Also, the Applicant, in his evidence, in describing his transformation did not refer to the job offer at all. The Applicant said he hopes to resume full time work. He said he had undertaken an aptitude test with the ADF and was told he can "choose from any of 250 different roles". No evidence was provided of any offer to join the ADF.
12. The Applicant wrote in his submissions that he had completed a CCO, alcohol rehabilitation program, and counselling. In addition to completing all of the required programs, he has also completed additional activities to repay the community, and said he has repaid all of the restaurants. He said he has also completed community service.
13. He said that he has changed back to how he was previously. He sees Douglas Kerr - Clinical Psychologist at Uplift Psychological Services in Redfern- as recently as last week. He said Mr Kerr's practice does not provide reports. He said Mr Kerr had referred him to Dr Pusey for the purpose of providing a report for his most recent court appearance. He said he will continue to see Dr Pusey.
14. The Respondent referred me Ex Parte Tzinliolis: Re the Medical Practitioners' Act [1966] 1 NSWR 357 where the Court of Appeal considered an application for registration by a medical practitioner. The Court held that the mere passage of time since the wrongful act is not sufficient to indicate a change of character. This case is unhelpful as, in the present matter s 16(2) of the Act specifically invites consideration of the passage of time.
15. The Respondent also referred to Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284, the seriousness of two "assault actual bodily harm" offences and the fact that the Applicant was on a good behaviour bond were considered, but it was considered that the 15 months since the conviction an insufficient period for the discretion to be exercised. In Yelland v Commissioner for Fair Trading [2005] NSWADT 293, in relation to an applicant who had been convicted of traffic offences including state false name, the Tribunal found at [24] - [28] that the offences, which had been committed only 12 months beforehand should not be ignored. In Hunt v Director General, Department of Services, Technology, and Administration [2010] NSWADT 186 where, in relation to offences of obtaining nearly $7,000 by deception, a period of 5 years since the offences were committed was not sufficient time that the offences should be ignored.
16. I was also referred to Hammond v Commissioner for Fair Trading [2020] NSWCATOD 132 (Hammond), where SM Robertson stated at [47]: 47. The statutory period, after which an offence of dishonesty does not result in disqualification, is ten years. As the cases … indicate, only in respect of offences at the lower end of the scale is a period of three years likely to be considered sufficient to justify ignoring the offence.
17. As the Applicant correctly pointed out Hammond was in relation to a different type of licence, and the Applicant had a conviction for demand money with menaces and had been sentenced to 13 months imprisonment.
18. Perhaps most relevantly, the 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. There JM Montgomery agreed that it was an offence at the lower end of the scale and held that 3½ years was sufficient to warrant ignoring the offence. As I said in Wilson v The Commissioner for NSW Fair Trading [2014] NSWCATOD 79 (Wilson) at [24], I do not understand 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. Whether or not sufficient time has passed to ignore offences is dependent on the circumstances peculiar to each applicant and there is no one rule which suits all applicants: see Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 (Salcedo) at [53].
19. The Applicant was critical of the cases relied on by the Respondent, noting that none related to person who had committed offences while they were homeless, and there was no evidence of what steps they had taken to improve their situation.
20. In Wilson which was cited with approval by SM NS Isenberg RFD in Salcedo I said at [25]: 25. It 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 [Act] is consumer protection: Second Reading Speech 9 May 2002.
21. It is now three years since the Applicant committed the dishonesty offences, and he continues to be subject to the penalty imposed by the Court until June 2021.
22. The Applicant provided a reference dated 20 February 2021, from Louanne Wills, the owner and residing manager of the boarding house where he has lived for the past 12 months. Ms Wills wrote that when the Applicant first came to the boarding house he was consuming excessive amounts of alcohol. At one point he had seizures and an ambulance was called. Since that time she has observed a significant change - his demeanour and presentation and interaction with others is very positive She was aware he no longer consumes alcohol and that he has 2 casual jobs. The Respondent submitted that Ms Wills does not appear to be aware of the Applicant's convictions or the CCOs or his application for a Class 2 Real Estate Agents Licence. I observe however that she wrote that the Applicant had told her about the serious lack of judgment and poor choices he had made in the past, and I accept that, at least to some extent, she was aware that he had had a "difficult past".
23. The Respondent was critical of the Applicant not providing a reference from his present employer of the restaurant and cafe where he works part time. In his evidence the Applicant said he was reluctant to discuss his previous mental health issues with his present employer, as this could jeopardise his income. Between late 2017 until his services were terminated he previously worked for a property developer, Mr Lyon of Lyon Group, but the Applicant said, Mr Lyon has since died. He also worked for a real estate agency that wanted to assist developers with off market development sites, but he is still engaged in a dispute with that former employer in relation to unpaid commissions; the Applicant told Dr Pusey that his employer filed an AVO against him. I accept that these are legitimate reasons why these likely references have not been provided.
24. The Applicant gave evidence that there was one [named] person who had continued to have faith in him during his low times. Furthermore, he said, that person had invested funds in a business the Applicant is setting up. It was therefore unusual that there was no reference from that person. The Applicant told Dr Pusey that that his former housemate from June 2019 to February 2020 had been "incredibly helpful to [his] recovery and we became good friends" and he told Dr Pusey in November 2020, that it was his belief that he continued to remain good friends with his ex-housemate. In those circumstances, it would seem to me, a reference may have been forthcoming. Later the Applicant told Dr Pusey that the friendship had suffered because of the Police involvement in the incident that gave rise to the most recent charges.
25. Similarly, in his written submissions the Applicant did not provide any details about the enterprise about which he gave evidence. The business entails the Applicant managing 4 staff offshore, he said. He said that the brain seizure he suffered in early 2020, impacted his new business for a few months. As to why he had not previously mentioned the investor or the business proposal when he had gone to lengths to discuss how his life had turned around, the Applicant said he did not think it was relevant. The Applicant told Dr Pusey that he had been volunteering at an animal shelter so he can interact with animals because this helps him. I discussed with the Applicant his work at the animal shelter. He provided evidence that he had attended to offer his services and had been told that he would be contacted when a vacancy arose, as was confirmed in an email from South Sydney Council dated 18 January 2021. While I accept that the Applicant has 'volunteered' his service, his offer has not, at this time, been taken up. The Applicant wrote that he volunteers for a local Cronulla bush preservation group, but there was no evidence of this role Similarly, there was no evidence of the Applicant having paid back the restaurants as he claimed. In all, there was little in the way of corroboration of the Applicant's rehabilitation; the only evidence of reformation comes from the Applicant himself, or in his self-report to Dr Pusey, and the observations of Ms Wills.
26. The Applicant told Dr Pusey that whenever he obtained a significant amount of money, that he started spending it immediately. The first significant amount of money he received was in April 2018 and he went to the strip club that night and continued going to the strip club and the brothel until the money was gone. On one occasion, he spent $10,000 at the brothel in one night". The Respondent was critical of the Applicant having spent a large sum of money at a brothel. The Applicant submitted, that this was irrelevant, and neither was it illegal. In any event, it had occurred at a time when he was mentally ill. The Applicant said that since that time he has taken many tangible steps to recovery - he has accessed his superannuation, got a room, and bought clothes. He had undertaken rehabilitation and is volunteering. He has resumed his studies. I observe that while he provided evidence of his educational achievements from before his illness, he did not provide evidence in relation to his more recent claimed accomplishments.
27. In AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [23], where the decision in relation to a firearms licence was set aside, the Tribunal held that while both effective treatment and a lengthy period of stability are relevant, they are not mandatory. However, when considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. It is relevant therefore that since the dishonesty offences the Applicant has twice been convicted of further offences, albeit not dishonesty offences. The most recent events were in February 2020. This suggests to me, either that the Applicant has a disregard for basic legal principles or was unwell.
28. There is no psychiatric report that the Applicant is now free from his mental health issues; in fact the evidence is to the contrary. I discussed with the Applicant the Orders made by Magistrate Huntsman on 26 February 2021. It was open to her Honour, in making orders dismissing the charge under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 to make findings that the Applicant is, or was at the time of the alleged commission of the offences suffering from a mental illness. Her Honour's Orders reflect a finding that the Applicant is currently mentally ill. It was further observed that the treatment plan to which he agreed included ongoing attendances with Mr Kerr.

Conclusion

1. A Real Estate Agent has a position of trust and that the licensing regime established under the Act aims to ensure a high level of integrity, so that consumers face minimal risks and can be confident in their dealings with licensed agents.
2. I accept that the Applicant has made significant improvements in his life since the dark times of 2018-19, although he re-offended in 2020. The evidence does not lead me to the view that sufficient time has elapsed since the commission of the dishonesty offences for me to be satisfied that the Applicant should be permitted, at this time, to undertake the trusted role of real estate agent.
3. The Respondent submitted that the Applicant currently has a strong motivation to be of good behaviour whilst serving the CCOs, there is no ability to assess whether the Applicant would continue that behaviour once the CCO period has concluded. If the Applicant's condition continues to improve, it may be appropriate to ignore the dishonesty offences through effluxion of time. Although the Applicant said he would be happy if his licence were granted from after the conclusion of the CCOs, I do not consider, on the available evidence, that even by that date, sufficient time will have elapsed.

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: 06 May 2021