Khoury v Director-General, NSW Fair Trading

NCAT Occupational|2015-04-20

Introduction

Mr Khoury has applied to the Tribunal for administrative review of a decision made on internal review by the Director-General of NSW Fair Trading to refuse him a second-hand dealer's licence under the Pawnbrokers and Second-Hand Dealers Act 1996. That decision was made on 11 December 2014. The director-general found that Mr Khoury was not a fit and proper person to hold a licence and was a disqualified person under section 8A(2) of the Act, because he had been convicted of an offence involving dishonesty which had been recorded in the last 10 years. There is no dispute about his convictions.
Mr Khoury was convicted at the Balmain Local Court on the 22 September 2010 of two counts of obtaining money by deception of a value greater than $5000 and less than $15,000. The circumstances leading to that conviction took place in November 2007. Mr Khoury was sentenced to imprisonment for nine months, which sentence was suspended on him entering a nine-month bond under section 12 of the Crimes (Sentencing Procedure) Act 1999. He was ordered to pay compensation of $6350.
The Director-General refused to exercise the discretion under section 8A(4) to ignore that conviction when considering Mr Khoury's application for a licence. That subsection provides: (4) Where subsection (2) or (3) provides that a determination may be made under this subsection in relation to an offence committed by a person, the Director-General may determine that the offence should be ignored for the purposes of this section on one or more of the following grounds: (a) the triviality of the acts or omissions giving rise to the offence, (b) the time that has passed since the offence was committed, (c) the offence was committed by the offender as a minor, (d) the subsequent good behaviour of the offender, (e) any other ground prescribed by the regulations. The Pawnbrokers and Second-hand Dealers Regulation 2008 does not make any provision authorised by s 8A(4)(e).
Mr Khoury argued that the Tribunal should exercise the s 8A(4) discretion in his favour, given that his last offence took place more than 7 years ago and his subsequent good behaviour, which was said to demonstrate that he is a changed man.

The material before the Tribunal

The Tribunal heard Mr Khoury's application on 20 April 2015 and 11 June 2015, when he was represented Mr Fitzpatrick, while Mr Maynard represented the respondent.
During that hearing I heard sworn evidence from Mr Khoury who was cross-examined by the respondent. I also had regard to the following material which was before the Tribunal: 1. Administrative review application with attachments. 2. Respondent's s58 documents. 3. Statement of Subhe John Khoury made 30 March 2015. 4. Statement of Richard Amoye dated 30 March 2015. 5. Statement of Benjamin Harkham made 27 April 2015. 6. Statement of Richard Amoye dated 15 May 2015. 7. Mr Khoury's written submissions.

Mr Khoury's criminal record

Mr Khoury has the following convictions: 1. On 25 October 2005 he was convicted in the District Court of two counts of obtaining money by deception. He was sentenced to imprisonment for 12 months, with a non parole period of nine months. 2. On 8 December 2005 at the Burwood Local Court he was convicted of: 1. Obtaining money (less than $2,000) by deception for which he was sentenced to imprisonment for 12 months, with a non parole period of nine months. Most of this sentence ran concurrently with his earlier sentence. 2. A first offence for driving a car where he had never been licensed, for which he was fined $50. 3. Giving a false name, for which he was fined $50. 4. Giving a false address, for which he was fined $50. 1. The convictions on the 22 September 2010 for obtaining money by deception of a value greater than $5000 and less than $15,000 which are discussed at para 2 above.

Non-disclosure of Mr Khoury's last offence

When Mr Khoury's solicitor prepared his application for a second-hand dealers licence he omitted to include any reference to the 22 September 2010 conviction. It was put to me that this was a result of his solicitor relying on an out of date police record, and of Mr Khoury not detecting the omission when reviewing the papers work. The Director-General viewed this non-disclosure by Mr Khoury adversely and concluded that it reflected poorly on Mr Khoury's honesty and character.
Mr Khoury said he had read the particulars of his convictions provided in the application, and had not noticed that his 2007 conviction was not included. Mr Khoury said that as a result of his accident he is on medications that affect his memory. Essentially he had said he had relied on his solicitor to prepare the application for him.

Should the Tribunal ignore Mr Khoury's convictions?

Each of Mr Khoury's convictions was recorded less than 10 years ago. The offences of obtaining money by deception are offences involving dishonesty, which s 8A(2)(a) provides make Mr Khoury a person disqualified from obtaining a licence under the Pawnbrokers and Second-Hand Dealers Act 1996 for 10 years from the time the conviction "was recorded", unless the offence is disregarded under s 8A(4).
Mr Khoury was also convicted of giving a false name and address to Police. These offences also "involve dishonesty" as they require that the offender knowingly give a false name and address, They are offences that "answers that description without further inquiry": see Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 at [19]-[20].
Mr Khoury submitted that in the circumstances of his case I should exercise the discretion under s 8A(4) to ignore his convictions for offences involving dishonesty. That sub-section allows a conviction for an offence involving dishonesty to be ignored of one or more of four operative grounds. Only three of those grounds are applicable to Mr Khoury. I will consider each of them separately.

The triviality of the acts or omissions giving rise to the offence

A perusal of the material relating to Mr Khoury's convictions in the s 58 documents reveals that the deception offence which Mr Khoury was convicted of at the Burwood Local Court, involved a deception committed in November 2004 on an elderly man who Mr Khoury led to believe that, he, as a builder, could offer work to the man's son. Mr Khoury extracted money from the father so that he could obtain a building certificate for the son, that would enable the son to work for him. The Police statement of facts makes reference to Mr Khoury's admitted gambling addiction for which he was receiving treatment.
The precise circumstances of the offences for which Mr Khoury was convicted by the District Court are not set out in the materials. They too occurred in November 2004. Both counts of which he was convicted alleged that he obtained money (totalling $3,900) "by deception namely by stating to [name] that he would purchase alcohol on his behalf for the business owned by [name]."
The offences for which Mr Khoury was convicted by the Balmain Local Court in 2010 took place in November 2007. They involved Mr Khoury interposing himself as an undisclosed middleman, between two businesses, which were involved in the sale and purchase of a forklift. Mr Khoury deceived each business operator into believing that he was from the other business. He negotiated the sale with each of them. When the sale was completed he gained possession of the purchase money from the purchaser, and paid the vendor with a cheque that bounced.
Each of the deception offences is a serious offence. Together they paint a picture of the applicant as a cheat and fraudster. They cannot be regarded as trivial.

The time that has passed since the offence was committed

Ten and a half years have passed since Mr Khoury committed the November 2004 offences. The disqualification period does not run from the time offences are convicted, but when they are recorded. The November 2007 offences are seven and a half years old.
In Bek v Commissioner for Fair Trading [2004] NSWADT 149 Montgomery JM observed at [47] that an applicant's age is relevant to an assessment of whether sufficient time passed to ignore an offence, as is the nature of the offence, and whether the applicant has been of good behaviour since. While I agree with that observation, the facts in Bek bear no resemblance to those in Mr Khoury's case. There the offender was relatively young (21) and the offence was stating a false name or address four and a half years before the Tribunal considered his application. Here Mr Khoury was in his mid to late forties when he committed the offences, and the majority of the offences involve deliberate, planned and somewhat sophisticated deception, aimed at securing him financial advantage. This is especially so with respect to the most recent offence, committed seven and half years ago.

The subsequent good behaviour of the offender

At the heart of Mr Khoury's arguments is the fact that since he committed the last offence there have been major changes in his life, both physical and spiritual. He submits that his is now a different, reformed man.
Mr Khoury says that when he left prison in 2006 he was "committed to remain crime free." He explains his November 2007 as a relapse. The facts show that it was a premeditated, elaborate, and deceptive crime, which is difficult to dismiss as a mere relapse.
Mr Khoury says that he has not committed any offence since. There is no evidence that he has done so.
Mr Khoury was seriously injured in a motor vehicle accident in March 2010 which has left him with ongoing pain, and psychical restrictions. His capacity to work is limited, with physical work now being beyond his capacity. It was while he was in hospital following this accident that Police caught up with him for the 2007 offences.
Mr Khoury joined a church in 2011 and is now heavily involved in that church, with new friend's in the congregation, and a commitment to Christian principles. He regards himself as a born again Christian, and sees himself as a totally different person. He has a commitment to legal and honest dealing. He "does everything according to what is right." He assists others in the community as much as he can.
Mr Khoury says he has a passion for antiques. He collects antiques and precious metals and would like to be able to trade in them in the unrestricted fashion that a second-hand dealer's licence would allow, such as by holding auctions. Because of the physical restrictions his injuries place on him, being licenced to trade in second-hand hand good will expand his business and provide him with" work within his physical limitations. He presently sells a limited amount of materials in auctions conducted by others, and has conducted one auction sale of used goods, which is the most he can do without a licence.
In a reference dated 30 March 2015 the Senior Pastor Richard Amaoye of Mr Khoury's church wrote - "John informed me about his past record of some offences involving dishonesty, including one offence in 2007. I have had time to offer pastoral care and spiritual guidance to john. I can say that John is definitely a transformed man. John has been a good standing member of my church since May 2012. He is currently voluntarily supervising the church building renovation project. He is also involved in our community projects. I believe if John's application is successful he will adhere to the rules and regulations. More so the values and principles of his Christian faith: among which; is fairness, will be brought to bear in his dealings with colleagues."
In a statement dated 15 May 2015 Pastor Amaoye explained that Mr Khoury had told him that, "he had been in jail, that he defrauded people and that he deceived other peoples." He had been open in his disclosures and Pastor Amaoye believed he was genuine. He believed that Mr Khoury now accepts and lives by the precept that, "we are each other's keeper and we must all look after each other." Pastor Amaoye said: "I trust him and he has never given me any reason to distrust him. At the moments we are renovating the Church building and he is the Project Manager. In terms of procurement, he is the one responsible for buying the materials for the renovation project. We give him money to purchase these materials I trust that he will do so and not cheat us."
Mr Khoury also relied on a statement from Benjamin Harkham, a solicitor and art collector. He met Mr Khoury five years ago in Mr Khoury's capacity "as an art dealer and a trusted professional who can handle, dispose [of] and acquire precious antiques and art pieces." Mr Harkham said that he was aware of Mr Khoury's past convictions, but regarded him as changed man who, "deals honestly in business." Mr Harkham said: 8. I have complete and utmost confidence in John. Financially I have entrusted him with substantial items that are worth a lot of money, such as painting to the value of $30,000. John has held for me sizeable amounts of money, which he always promptly remitted to myself. … 9. I trust John implicitly in my financial dealings as it relates to antiques and paintings. I have no hesitation in recommending him to others as a professional that can be trusted in procurement and disposal of antique and other art pieces.
The evidence from Pastor Amaoye and Mr Harkham point to Mr Khoury being a changed man, which changes have taken place over the last five years.

Conclusion

Section 63 of the Administrative Decisions Review Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
In this case the starting point is that Mr Khoury is disqualified from obtaining a second-hand dealers licence under the Pawnbrokers and Second-Hand Dealers Act 1996, unless the Tribunal, standing in the shoes of the Director-General, determines to ignore his convictions for dishonesty recorded within the last 10 years.
In considering whether to ignore Mr Khoury's previous convictions I am persuaded that Mr Khoury has made significant changes in his behaviour in the last five years. The references from Pastor Amaoye and Mr Harkham paint a picture of a very different man to the fraudster who was convicted in 2007 and earlier.
An issue of concern is Mr Khoury's failure to provide details of his 2007 conviction in the application for a second-hand dealers licence prepared by his solicitor. While I understand and accept why the solicitor did not have details of that conviction, I have greater difficulty in accepting Mr Khoury's explanation of why he did not detect and correct that omission, when he read the application prepared by his solicitor. In a matter of such importance one would expect a person of Mr Khoury's intelligence and experience to exercise more rigour than he did.
The fraudulent and deceptive nature of Mr Khoury's prior convictions demonstrate that he is a man who has been capable of significant deceit.
A second-dealers licence authorises its holder to buy and sell second hand goods: see s 7. A dishonest person, especially one who is capable of deception and deceit, would be given a considerable opportunity to embark on dishonest and fraudulent conduct at the public's expense, if granted a second-hand dealers licence.
While I accept that Mr Khoury has demonstrated significant changes in his personal behaviour, I agree with the respondent that given Mr Khoury's age and the nature of his serious criminal history, that not enough time has passed since he committed his last offence, to justify ignoring his convictions. More time is required in which to consolidate the changes which Mr Khoury has made. If Mr Khoury continues living a changed life, he will, with time, become eligible for a second-hand dealers licence. The nature, number, and seriousness of his past offences is such that I consider that more time is required before I could be satisfied that those changes are consolidated and established.
I decline to ignore Mr Khoury's offences involving dishonesty that were recorded in the past 10 years. It follows that Mr Khoury is a person who is disqualified from obtaining a second-hand dealers licence under the Pawnbrokers and Second-Hand Dealers Act 1996. As a result it not necessary to consider whether Mr Khoury otherwise satisfies the eligibility requirements in s 8 of the Act.

Conclusion

The Tribunal confirms the decision of the Director-General to refuse Mr Khoury's application for a second-hand dealers licence under the Pawnbrokers and Second-Hand Dealers Act 1996. 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: 01 July 2015

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