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[2010] WASAT 11
General information, not legal advice.
State Administrative Tribunal (WA)
2010-01-29
Judge J
Original judgment source is linked above.
The application is upheld. The decision of the Board dated 10 August 2009 is set aside. The Board is to renew Mr W's certificate of registration as a real estate sales representative in accordance with these reasons and the Real Estate and Business Agents Act 1978 (WA).
Respondent : Real Estate and Business Agents Supervisory Board
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25
Coulthard v Henneker [2003] WASCA 187
Hughes and Vale Pty Ltd v The State of New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127
'LJW' v The State of Western Australia [No 2] [2007] WASCA 275
Mavaddat v Real Estate and Business Agents Supervisory Board [2009] WASCA 179
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson (unreported, WASC; Library No 960693, 25 November 1996)
1 Mr W sought review of a decision of the Real Estate and Business Agents Supervisory Board to deny him a certificate of registration as a real estate and business sales representative.
2 Since 1981, Mr W has worked as a sales representative in real estate for periods totalling approximately 15 years. In 2007, Mr W was convicted of two offences in the District Court. The Board refused an application by Mr W to renew his certificate on the basis that it no longer considered him to be of good character and repute and a fit and proper person to hold a certificate. The Board came to this conclusion in reliance on Mr W's prior convictions and aspects of his dealings with the Board which it regarded as demonstrating a lack of honesty.
3 On review, the Tribunal found that Mr W was now of good character and repute and a fit and proper person to hold a certificate. It came to this conclusion having regard to the genuine remorse of Mr W, his insight into his offending, the changes in his circumstances and his excellent character references. The Tribunal also took into account Mr W's good record during the substantial period of time since the offences were committed. The Tribunal ordered the Board to renew Mr W's certificate of registration as a real estate sales representative.
4 Mr W first obtained a certificate of registration (certificate) as a real estate and business sales representative (sales representative) in 1981. He has worked as a sales representative for periods totalling approximately 15 years since then. He is now nearly 50 years of age.
5 In February 2007, Mr W was convicted of two offences in the District Court. The first was that between 1 August 2001 and 4 November 2001 he unlawfully and with intent to injure or annoy his former wife administered a sedative to her (count 1 on the indictment). On the same date and at the same place, he unlawfully and indecently assaulted his former wife by positioning her to expose her vagina and then he photographed her, which was likely seriously and substantially to degrade or humiliate her (count 2 on the indictment).
6 Mr W's certificate as a sales representative expired on 16 June 2007. He applied to the Real Estate and Business Agents Supervisory Board to renew his certificate under the Real Estate and Business Agents Act 1978 (WA) (the Act). In November 2007, the Board refused his application. Mr W did not challenge that decision.
7 In March 2009, Mr W again applied to renew his certificate. The Board conducted a hearing and on 10 August 2009 refused his application. Mr W seeks a review of the Board's decision, pursuant to s 23(1) of the Act.
8 The Board may refuse to renew a sales representative's certificate if the Board is satisfied that s 47(1)(b) of the Act no longer applies in relation to the sales representative: s 48(5)(a) of the Act. Section 47(1)(b) of the Act requires that the Board be satisfied that an applicant 'is a person of good character and repute and a fit and proper person to hold a certificate'.
9 The Board refused Mr W's application for the renewal of his certificate because it considered that he was not a person of good character and repute and a fit and proper person to hold a certificate, having regard to his two prior convictions and to what the Board saw as a lack of honesty by Mr W in his dealings with the Board.
10 The Board considered that the nature and circumstances of the offences for which Mr W was convicted involved a betrayal of his wife's trust of the highest magnitude, and this of itself meant that he was not a person of good character. The Board also considered that the public were entitled to expect the highest degree of trust from their sales representatives and in view of his convictions, the Board could not be satisfied that he was a person of sufficient moral integrity and rectitude of character as to be a fit and proper person to hold a certificate.
11 Although it was eight years since the offences were committed, during which time Mr W had not committed any other offences, the Board was not prepared to assume that Mr W would not commit further offences, in the absence of evidence of a psychological or medical nature. The Board also relied on the fact that Mr W was released from prison in November 2008 and was on parole at the time of the hearing before the Board. The Board did not consider that the period of time since Mr W's release from custody was sufficient to expunge the effects of his convictions from his character and, as he was still on parole, it was too early to make any assessment of his likely future behaviour.
12 The Board did not consider that Mr W had demonstrated deep remorse or shame for his actions, either in the course of the criminal process or in the hearing before it. The Board also concluded that Mr W's circumstances had not sufficiently changed so as to support the conclusion that the factors that gave rise to the offending conduct had been eliminated, pointing to the fact that a condition of Mr W's parole was that he not have contact with his children. Mr W also placed a number of references before the Board, but the Board gave these little weight.
13 In addition, the Board considered that two answers given by Mr W in his applications to renew his certificate were inaccurate. The Board saw this as an indication that Mr W lacked the honesty to carry out the role of a sales representative.
14 Our role is to review the decision of the Board by way of a hearing de novo, and to reach the correct and preferable decision at the time of our review, taking into account all matters before the Board and any new material: s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). We were provided with all of the material which was before the Board and Mr W relied on some additional documents, including more recent character references. We also heard evidence from Mr W, his partner Ms S, and from one of his character referees, Mr H. In addition to the matters referred to by the Board in its reasons, at the hearing before the Tribunal counsel for the Board also pointed to other matters which, in her submission, supported the conclusion that Mr W was not a fit and proper person to hold a certificate. We have set these out below.
16 At the outset of the hearing, we made an order pursuant to s 62 of the SAT Act prohibiting the publication of Mr W's name, or any other information which would identify his former wife, who was the complainant the subject of the offences for which Mr W was convicted. We made that order having regard to the protection afforded to the identity of complainants in respect of sexual offences under s 36C of the Evidence Act 1906 (WA). Accordingly, we do not refer to Mr W's name in full in these reasons. We have also anonymised other information (including the names of other persons) which might permit Mr W's identity, and thus the identity of his former wife, to be ascertained.
17 In order to make an assessment of the relevance of Mr W's prior convictions to his application to renew his certificate, it is necessary to consider the circumstances of the offences for which Mr W was convicted, and on the basis of which he was sentenced.
18 Count 2 on the indictment was committed on 3 November 2001. On that day, Mr W's wife had attended social functions and had become intoxicated. That evening, Mr W assisted her to have a shower and put her to bed. Whilst she was asleep or unconscious in bed, Mr W positioned her so as to expose her genitals and took photographs of her lying naked on the bed. At the time she did not know what was being done to her, was unable to resist what was being done to her, and did not consent in any way. Mr W used three of these photographs to obtain membership of 10 internet web sites which are dedicated to the subject of the sexual and/or pornographic abuse of unconscious women, and the purpose of taking the photos was to enable him to obtain access to those sites. However, the learned sentencing judge accepted Mr W's submission, in the absence of evidence to the contrary, that he had encrypted the photos before sending them, apparently so that other persons would not actually be able to access the photos. However, the learned sentencing judge found that that was a matter of little significance because 'the gravamen of the offence is the humiliation of the victim'.
19 The commission of this offence was not discovered until 6 October 2002, when Mr W's wife was attending to emails on the family's computer, and happened to click on the 'sent items' box at which point she came upon an email posting the photos to one of the websites.
20 The learned sentencing judge found that the conduct the subject of count 2 was not opportunistic in nature. He found that the conduct involved a serious circumstance of aggravation involving grievous humiliation and degradation of Mr W's wife and a gross breach of trust.
21 Mr W's wife did not make a complaint to the police in relation to this offence for some time. On 3 November 2004, Mr W participated in a video record of interview where he made admissions about the circumstances in which the offence occurred.
22 In the course of that record of interview, Mr W also made admissions that he had administered sedatives to his wife without her knowledge on five or six occasions over the course of the 10 years prior to 2001. These admissions resulted in Mr W being charged with the offence in count 1 on the indictment, which was a representative charge. Mr W admitted that the drugs were his mother's sleeping tablets and Rohypnol, that he had hidden them in the roof of the house, and that he gave them to his wife without her knowledge or consent. Mr W gave his wife the sedatives to make her fall asleep, but his wife experienced their effects, such as drowsiness, for some time. Mr W gave his wife the sedatives to obtain some respite from what he regarded as her unpleasant behaviour, and he did not administer the sedatives in order to enable him to take indecent photographs of her.
23 There were several aggravating factors in relation to count 1. First, there was a real risk to the health of Mr W's wife as a result of the administration of the sedatives without her knowledge, although there was not sufficient evidence to permit a finding that there was a grave risk of immediate harm to her. Secondly, the offence was not opportunistic in nature, but rather was premeditated. Finally, the learned sentencing judge found that the offending involved a breach of the trust a person is entitled to expect from his or her spouse.
24 Mr W was sentenced to a term of imprisonment of eight months on count 1 and 16 months on count 2, to be served cumulatively. He was made eligible for parole. Mr W unsuccessfully appealed against that sentence, but was released on bail pending the outcome of the appeal. As a result, he did not complete his period of imprisonment, prior to his release on parole, until November 2008. His parole period expired in November 2009.
The principles applicable to the good character and fit and proper person test in s 47(1)(b) of the Act
25 The words 'fit and proper person' have the purpose of giving the widest scope for judgment as to a person's fitness to work in a particular industry or profession: see Hughes and Vale Pty Ltd v The State of New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127 at 156 (Dixon CJ, McTiernan and Webb JJ). The meaning of those words cannot be considered in isolation, but rather will be drawn from the context, from the activities in which the person will be engaged and the ends to be served by those activities: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380, (Toohey and Gaudron JJ).
26 Licensing provisions which contain a requirement that a person be a fit and proper person to work in a particular profession or occupation are directed both to the protection of the public and to the maintenance of professional standards for those granted a licence. As a result, the criterion that an applicant be a 'fit and proper person' requires that the applicant show that they have the requisite knowledge of the duties and responsibilities of a licence holder under the Act in question, and also that he or she has 'sufficient moral integrity and rectitude of character as to permit [them] to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails': Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76, (Walters J).
27 A criminal conviction may well call into question whether a person is a 'fit and proper person' to be licensed to work in a particular industry or profession. Misconduct in the course of work in the industry or profession will be directly relevant to fitness, but misconduct outside the course of work may, depending on the nature of the conduct and the circumstances, indicate that a person is not fit and proper to work in a particular industry or profession: Mavaddat v Real Estate and Business Agents Supervisory Board [2009] WASCA 179 (Mavaddat) at [71] [73], (Newnes JA (McLure JA and Pullin JA agreeing)). By way of example, the personal misconduct may demonstrate qualities incompatible with the qualities essential to working in the industry or profession, or the absence of those qualities: see A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253; Mavaddat at [71] [73], (Newnes JA (McLure JA and Pullin JA agreeing)). Alternatively the conduct may be sufficiently serious as to represent a course of disregard for the law so as to require the conclusion that the person is not a fit and proper person: Coulthard v Henneker [2003] WASCA 187 at [56] (Barker J).
28 In Tavelli v Johnson (unreported, WASC; Library No 960693, 25 November 1996) (Tavelli) at 7 8, Justice Wheeler identified some factors which would indicate that prior convictions could be regarded as more serious or of greater relevance to the question whether a person is a fit and proper person to hold a licence. Although that case concerned an inquiry agent, her Honour's comments are equally apt to a person seeking a certificate of registration as a sales representative. The factors identified by her Honour were:
The relevance of Mr W's prior convictions to the good character and fit and proper person test
29 The convictions did not occur in the course of Mr W's work as a sales representative, nor did they relate to that occupation. However, we did not understand it to be disputed by Mr W that his prior convictions were relevant to the question whether he was of good character and a fit and proper person. We accept that they are relevant for three reasons.
30 First, the offences were committed while Mr W was the holder of a licence under the Act, although Mr W gave evidence that he was not working as a sales representative when the offences were committed.
31 Secondly, the Board submitted that Mr W's convictions involved dishonesty. We accept that submission. The nature of the offences was such that they involved a substantial measure of deception. The commission of offences involving dishonesty is highly relevant in the present context, given that honesty is well recognised as an essential attribute of a person licensed as a real estate agent and sales representative: Mavaddat at [74], (Newnes JA, (McLure JA and Pullin JA agreeing)). The grant of a certificate permits a person to carry out the functions of a sales representative, namely functions associated with the negotiation of 'real estate transactions' which include the purchase or sale of real estate and the leasing and letting of real estate (see s 4 of the Act). Real estate transactions can involve substantial sums of money, and often have significant financial consequences for the lives of the parties to those transactions. It is essential, therefore, that persons dealing with sales representatives can confidently rely on the accuracy of any information provided by the representative in relation to a property and on the honesty of the representative in dealing with them and with other parties to the transaction.
32 Thirdly, the offences committed by Mr W were serious. Each offence involved a gross breach of trust and a degree of premeditation, they caused hurt and humiliation to Mr W's wife and the conduct in count 1 posed a risk to her health. The conduct involved was utterly reprehensible, and reflects particularly adversely on Mr W's character.
33 In addition, count 1 is also serious because it represents a course of disregard for the law. The conduct represented by count 1 involved five or six contraventions of the law over a 10 year period.
Is Mr W a person of good character and a fit and proper person to hold a licence notwithstanding his convictions?
34 The fact that a person has prior convictions which are relevant to his or her good character and fitness to hold a certificate does not necessarily preclude the grant of a certificate. In Tavelli (at 8), Wheeler J noted that notwithstanding previous convictions, a number of factors may indicate that a person is of good character and a fit and proper person. Those factors include:
35 Having regard to these factors, we have reached the conclusion that, notwithstanding his prior convictions, Mr W is of good character and a fit and proper person to hold a certificate of registration as a sales representative. Our reasons for that conclusion are set out below.
36 Counsel for the Board submitted that Mr W had not demonstrated genuine remorse and contrition for his offending conduct. She relied on observations by the learned sentencing judge to this effect. His Honour Judge McCann accepted that Mr W had shown some remorse, but concluded that this remorse was 'somewhat diluted in nature'. After viewing the video record of interview, his Honour expressed the view that it 'seemed to me that you conducted yourself in a somewhat businesslike and perfunctory manner'.
37 This finding was challenged in the course of Mr W's appeal against his sentence. On appeal, Miller JA indicated that he had watched the video record of interview and concluded it was fair to say that Mr W adopted a 'businesslike' demeanour, and that he did not demonstrate deep remorse or shame for his actions. His Honour noted that Mr W 'did not express great remorse for having administered sedatives to her. He did say that it was out of character and that he must have been deranged at the time, but the extent to which he revealed sincere remorse was entirely a matter for the learned sentencing judge': 'LJW' v The State of Western Australia [No 2] [2007] WASCA 275 at [104] [105], (Miller JA).
38 We have not seen a copy of the video record of interview. In the absence of any submission to the contrary, we accept the views expressed by the Court in sentencing and on appeal that in his video record of interview, Mr W did not demonstrate deep remorse or shame for his actions.
39 We note that in his evidence before us, Mr W sought to explain his detached manner during the record of interview. Mr W gave evidence that following his wife's discovery of the offences, she had threatened to report him to the police. These threats continued for approximately two years before Mr W's wife made a complaint to the police. Mr W told us that 'it had been a sword over my head that it could happen' and when his wife eventually made a complaint to the police 'it was almost a relief that it happened'. That explanation has a ring of credibility to it. It may account for Mr W appearing somewhat detached or businesslike in the record of interview.
40 In any event, in this application Mr W gave evidence and made submissions on his own behalf, and we were able to judge first hand whether he has insight into his conduct and is genuinely remorseful. We concluded that Mr W does have insight into his conduct and that his remorse is genuine.
41 Counsel for the Board submitted that it was apparent from Mr W's evidence that what he in fact regrets is his own humiliation and embarrassment. That submission does not, in our view, fairly reflect the evidence given by Mr W. Mr W was crossexamined by the counsel for the Board in relation to his expressed regret at the commission of the offences. He denied that the time he spent in prison and the loss of his sales representative's licence were the reasons for his regret. Mr W said that he regretted the offences because they were abhorrent, that spending a year in prison was nothing compared with not seeing his children and that the impact on him of his time in prison was inconsequential to him as compared with its impact on the people around him, particularly his family. The focus of Mr W's expressed regret appeared to be almost entirely on the impact of his offending on his family.
42 Counsel for the Board also submitted that Mr W's evidence was given with a businesslike detachment. We are unable to agree. Nothing in Mr W's demeanour when he gave his evidence suggested that his remorse was anything other than genuinely felt. In his evidence before us, Mr W described his behaviour towards his wife as 'terrible' and said that it was 'abhorrent' to commit such behaviour in his home. Mr W said that he was 'totally' sorry for what he had done. Mr W said that he 'absolutely' regretted his conduct, and would change what had happened if he could. In some respects, Mr W gave the appearance of being rather matter of fact in recounting what had occurred, but that appeared to us to be the result of his very frank and forthright manner of giving his evidence, rather than from a lack of remorse.
43 It was also apparent that Mr W's approach to life is not to focus on regrets about past events, but to focus on the future. He gave evidence that he had tried, and was trying, to repent and 'make good' the situation, such as by providing assistance to his wife in relation to matters around the home during the period of their separation, paying her mortgage, and particularly by providing for his children, above and beyond his legal responsibilities to do so. Mr W's evidence was that he wants to regain employment in the real estate industry so that he can provide for his children. Those sentiments and intentions, and Mr W's actions in providing support for his wife and children since the time of the offences, are consistent with genuine remorse and contrition for his conduct.
44 Finally, we note that Mr W fully cooperated with the police when the offences were investigated, and admitted his conduct. In particular, Mr W made admissions in relation to the conduct the subject of count 1 of the indictment. At the sentencing hearing, it was acknowledged that without those admissions, a prosecution would have been unlikely to succeed. In addition, Mr W pleaded guilty at the first opportunity to the counts in the indictment. Mr W's cooperation with the police and the prosecution is consistent with his expressed remorse for the commission of the offences.
Passage of time since offences committed, with no misconduct
45 It is now more than eight years since the offences were committed. In that period, Mr W has not committed any other offence. Mr W submitted that this constituted the passage of a substantial period of time. The Board's case, in essence, was that not enough time has passed to permit the conclusion to be drawn that Mr W is a fit and proper person to hold a certificate. The Board relied on the fact that at the time of the hearing, Mr W was still on parole for the offences.
46 Counsel for the Board submitted that we should take into account not just the time which has passed since the offences were committed, but also the time which has passed since Mr W's release from prison. That submission might be apt in a case where an offender was apprehended, tried and sentenced shortly after the commission of the offence, but we do not accept that the submission reflects an appropriate approach in this case. Although the offences were committed on or before 3 November 2001, they were not discovered until October 2002. Mr W's wife did not make a complaint to the police for some months and it was not until November 2004 that he was interviewed by the police. The completion of the prosecution process was delayed through no fault of Mr W's, so that Mr W was not dealt with in the District Court until February 2007. Although he commenced serving his sentence immediately thereafter, because he appealed that sentence and was released on bail pending the appeal, he did not complete his prison sentence until November 2008. It would work an injustice if, in these circumstances, Mr W was deprived of any benefit which he might otherwise derive from his good behaviour in the eight years since the offences were committed, apart from his good behaviour in the 14 months since he was released from prison.
47 The Board also relied on the fact that a condition of Mr W's parole was that he not contact his children from his marriage with his wife (three of whom are more than 18 years old). Counsel for the Board submitted that it was the nature of the offences and the lack of any change in Mr W's circumstances that had apparently necessitated the imposition of this condition. Mr W submitted that he entered into an agreement with his former wife immediately prior to commencing his period of parole. The Tribunal was provided with a copy of that agreement, which was mediated by the VictimOffender Management Unit. It records Mr W's agreement that he would have no direct or indirect contact with his children for the duration of his parole.
48 Mr W told us that he had agreed to enter into the agreement because his exwife had requested it, and he thought it would be in the best interests of the children if he agreed to the imposition of the condition. Mr W pointed out that the agreement pertained only to the period of his parole, and prior to the commencement of his parole period, he had not been restricted from contact with his children, and had been in contact with them while he was in prison. In those circumstances, we are unable to accept the Board's submission that the imposition of this condition was indicative of the absence of any change in Mr W's circumstances since the offending.
49 Although eight years is a substantial period of time of good behaviour, the weight of this factor in the overall balance is tempered by the fact that for twelve months of that eight year period Mr W was in prison. In addition, this is not a case involving a 'one off' offence, the relevance of which might fade relatively quickly: Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at [23], (Miles CJ). The offences represented by count 1 on the indictment were committed over a 10 year period. Having regard to the serious nature of the offences and the period of time during which the conduct was engaged, Mr W's otherwise unblemished record before and after the offences does not carry as much weight as it otherwise might: see Mavaddat at [79], (Newnes JA (McLure JA and Pullin JA agreeing)).
Change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated
50 Mr W described the period over which the offences were committed as a 'very dark time' in his life. His evidence was that at the time he and his wife were running a small shop which was struggling and he was in serious financial trouble. The debts incurred in the business ultimately resulted in his bankruptcy. At the same time, Mr W described his marriage as a 'very vitriolic and destructive relationship'. He said the later years of his relationship with his wife were years of frustration and anger, and a negative environment.
51 Mr W's evidence was that his life is now different in almost every respect from how it was at the time of the commission of the offences. At the time of the commission of the offences, Mr W was 41 years of age. He no longer lives in the same area of Perth and for some years he has been in a happy and stable relationship with another woman, Ms S. Mr W described that relationship as being based on honesty and integrity. Mr W also indicated that he has reestablished a relationship with a daughter from a previous relationship which has been 'fantastic'.
52 Counsel for the Board submitted that the qualities essential for carrying on the functions of a sales representative included trustworthiness, communication skills and the ability to deal in an emotionally mature manner with difficult situations. She submitted that the commission of the offences suggested that Mr W did not have those skills and that nothing had changed in the interim period. We are unable to accept the latter part of that submission.
53 Mr W indicated that the last couple of years had involved a steep growing curve and that he learned a lot about himself when he was in prison. He said he has changed enormously since the time of the offences, in terms of his personal development, his management of situations and his selfmanagement more generally. He said that his selfmanagement capabilities are now far superior to what they were at the time of the offences and that he can analyse situations and handle things differently. He accepted that at the time of the offences he was emotionally very immature, but he said he is now able to stand back and assess situations, has a more mature outlook, is more disciplined, and has more coping mechanisms. He says that he now openly discusses issues. We accept Mr W's evidence that he is a changed man, for three reasons.
54 First, in his evidence, Mr W was very open and frank about his character faults, his efforts to take control of his life, and his positive approach to all aspects of his life, including his relationships. He appears to be able to engage in mature self-reflection, in relation to both his personal characteristics and his handling of different situations. His attitude to the noncontact condition of his parole seemed to us to demonstrate maturity in that rather than become upset, angry or agitated by the imposition of the condition, he chose to do what he thought would be in the best interests of the children. Nothing in what Mr W said or in his demeanour gave rise to any doubt about the genuineness of his evidence.
55 Secondly, we note that Mr W has had some counselling in relation to his behaviour. Immediately after the offences were discovered, and at his wife's insistence, he attended a men's counselling group for domestic violence. Mr W then requested that his doctor refer him for individual psychotherapy and he saw Dr Lazarus on 12 to 24 occasions between October and December 2002. Mr W's evidence was that he ceased attending on Dr Lazarus because they agreed that he had achieved some insight into his behaviour. He saw Dr Lazarus again in July 2007 when he was released from prison on bail pending his appeal against sentence. Mr W said that he sought a referral to Dr Lazarus at that point because the months prior to then had been very stressful. The fact that Mr W appreciated that he would be assisted by some psychotherapy with Dr Lazarus shows some insight into his own needs and limitations, and suggests a more mature approach to dealing with periods of stress in his life.
56 Thirdly, Mr W's own view that he has changed for the better is consistent with an opinion expressed in a report dated 7 November 2007 prepared by Dr Lazarus following psychotherapy sessions with Mr W in 2002 and 2007:
[Mr W] described a difficult and somewhat dysfunctional marital relationship ... leading to the accumulation of a high degree of underlying resentment, frustration and anger on his part. However, he had failed to acknowledge or deal constructively with these emotional reactions, and I believe that it is in this context that his aberrant behaviour should be viewed. With psychotherapeutic input, he appeared to develop significantly more insight as to his negative emotional reactions, as well as developing more adaptive coping mechanisms ... [B]y the time we terminated psychotherapy at that time I felt that the prospects with regard to re-offending in any interpersonal context was very remote.
Mr W re-established contact with me in July of this year ... . To my knowledge, there have been no episodes of his previously aberrant behaviour, and I continue to feel that the chances of re-offence in this respect are extremely remote.
57 Mr W gave evidence that he started working in the real estate industry in the early 1980s, in his family's real estate business. He left the industry in 1984, but renewed his registration as a sales representative in 1998 and commenced work as a sales representative again. He commenced work for another firm (RE) in late 2002 and had worked for them as a sales representative until he went to prison.
58 Mr W has had considerable success as a sales representative, with awards for high sales. His evidence was that he takes his work as a sales representative very seriously and prides himself on being flawlessly polished and highly ethical in his working life. Mr W noted that for five of the eight years since the offences were committed, he worked as a sales representative without any complaint.
59 Mr W gave evidence that there has never been any complaint in relation to his integrity as a sales representative. Mr W provided written character references from 10 people, and the materials before the Board included references from an additional referee.
60 Five references were provided by people who have known Mr W in a professional capacity, through their work in the real estate industry or in related industries, namely valuations, finance broking and conveyancing. All of these references were accompanied by a copy of Mr W's National Police Certificate, which sets out his convictions, and each reference indicated that the author was aware of both the circumstances of the convictions and of the fact that Mr W had spent time in prison as a result of his convictions. Each of these referees has known Mr W for many years, and they praised his conduct as a sales representative, his hard work and diligence and his honesty in dealing with them and with clients.
61 These references provide strong support for Mr W's application to renew his certificate. The referees appear to be experienced members of their own industries, who have seen Mr W at work, and who do not have any ties to him which might call into question their objectivity.
62 One of these referees, Mr H, also gave evidence in support of Mr W's application. Mr H is a real estate agent who is a director of the company which is the licensee for RE and is the person in control of RE. Mr H has worked in the real estate industry since 1975 and has known Mr W for 11 years. Mr H described Mr W as 'a confident and competent sales person' and described Mr W's 'experience and knowledge of matters relating to real estate [as] an asset to an industry where diligence and attention to detail are important'. Mr H said that he had always found Mr W to be honest and trustworthy, and that Mr W had performed well as a sales representative with RE in the past. Mr H told us that he understood what Mr W's convictions related to, and that he nevertheless has 'not one iota of concern' in relation to Mr W working in his real estate agency, and that he did not consider him a risk to the public. He said that he had confidence in Mr W's management of sales and that Mr W explained matters in detail to his clients.
63 Five references were provided by clients of Mr W. Three of these were accompanied by a copy of Mr W's National Police Certificate and each of these indicated that the referee was aware of the circumstances of the convictions and that Mr W had spent time in prison as a result of his convictions. Two of the references were older, and pre-dated the convictions. Each of these client referees praised Mr W's work as a sales representative, his professional manner, the respect he showed his clients and his assistance 'over and above the call of duty'.
64 In addition, we were provided with a personal reference from a friend of Mr W who has known him for six years. This reference was accompanied by a copy of Mr W's National Police Certificate and indicated that the referee was aware of the circumstances of the convictions and that Mr W had spent time in prison as a result of his convictions. This reference also spoke very highly of Mr W's personal qualities.
65 Finally, we were provided with a copy of a reference provided by one of Mr W's children which was used in Mr W's sentencing in the District Court, and in addition, Mr W's partner Ms S, gave evidence in support of Mr W. Ms S described their relationship as 'excellent' and said that she felt '100% comfortable and safe' with Mr W and trusted him implicitly as he had always been honest with her. However, given their close personal relationships with Mr W we do not place much weight on the evidence of Ms S or on the character reference from Mr W's child.
66 The references on which Mr W relied all suggested that he has conducted himself in an exemplary manner in the past. Other than for the fact of the prior convictions, there was nothing in the material before us which would raise any doubt about Mr W's honesty or trustworthiness in his professional capacity.
67 In some cases, reliance on positive character references may not eliminate the concern that if circumstances presented themselves in the future, the person may be tempted to engage in unlawful conduct: see, for example, Mavaddat at [79], (Newnes JA (McLure JA and Pullin JA agreeing)). We do not hold that concern here. The offences took place in the context of Mr W's former marriage, and his conduct was directed solely at his former wife. There is nothing in the material before us which would suggest any likelihood of similar conduct being repeated by Mr W, and in particular, there is nothing to suggest any likelihood that he would engage in other offending in a professional context.
Do the other matters relied on by the Board mean that Mr W is not of good character or a fit and proper person to hold a licence?
68 Apart from the convictions, counsel for the Board submitted that three additional matters indicated that Mr W was not a fit and proper person to hold a certificate as a sales representative.
69 First, in completing the application form for the renewal of his certificate in March 2009, Mr W ticked 'yes' to questions which asked whether he had been declared bankrupt, or whether he was, or had been, an officer of a company that had been declared bankrupt. Mr W also noted on the form that the date of the bankruptcy was 1988. In fact the date of the bankruptcy was 1998. At the hearing before the Board, Mr W gave evidence that the bankruptcy actually took place in 1998 and that it was an incorrect transcription on his part which accounted for the discrepancy.
70 We do not view this discrepancy in Mr W's answer as indicative of a lack of honesty on his part sufficient to suggest he is not fit and proper to hold a certificate. The information of the year of the bankruptcy was not required to be provided on the application form, but was voluntarily added in by Mr W. It was not submitted that recording 1988 rather than 1998 was, of itself, of any significance in the context of the renewal application. We note that counsel for the Board pressed this issue only faintly.
71 Secondly, it was submitted that Mr W had provided inaccurate information in the application form in that on one part of the form he indicated that he was unemployed, yet he completed part 3 of the form which sought employment details (although he did indicate that his position was 'sales representative (pending)'). In addition, the Board contended that Mr W was employed by a sales representative who paid Mr W to assist him in carrying out work associated with real estate sales, and paid him on a commission or success basis.
72 Under crossexamination, Mr W's evidence was that he had been assisting a sales representative for approximately eight months when he was released from prison. However, he was not employed by the sales representative, and he was not paid a wage. He was to have been paid if and when a sale occurred, but as there were no sales, he did not receive any remuneration.
73 As for the indication on the application form that he was employed by RE, Mr W's evidence was that pending the resolution of his application to renew his certificate, he was not employed, and that his answer that he was employed by RE '(pending)' was an indication of his employment in the event that his certificate was renewed. Mr W told us that he was working at RE as an assistant to Mr H. His evidence was somewhat ambiguous in relation to the terms on which he was doing so. He told us that he was not being paid, and that he was working at RE because he wanted to remain involved in the real estate industry pending the return of his registration as a sales representative. However, he also told us that although there was no agreed basis for him to be remunerated by Mr H, he was to be paid on commission. In his evidence, Mr H told us that the arrangement was that Mr W would be paid a success fee, but that how much he would be paid was not the subject of any fixed arrangement.
74 The evidence did not clearly demonstrate that Mr W was employed at the time of the completion of his application form, so as to permit the conclusion that Mr W had been untruthful in the information he provided to the Board.
75 Finally, counsel for the Board submitted that there was a discrepancy in Mr W's submissions to the Tribunal and the facts as to the number of times which Mr W administered a sedative to his wife. Mr W was sentenced in respect of count 1 on the basis that he had administered a sedative to his wife on five or six occasions over a 10 year period. In Mr W's Statement of Issues Facts and Contentions (SIFC) filed on 6 October 2009, Mr W indicated that the number of times he sedated his wife was 'not six or more. It was in fact significantly less than six times'. In fairness to Mr W, this statement was in response to a statement in the Board's SIFC dated 21 September 2009 that Mr W sedated his wife 'six or more times before he did the acts that he was convicted of against his wife' (emphasis added). That statement itself is ambiguous, and could be read as suggesting that Mr W sedated his wife six or more times prior to committing the offence in count 1 of the indictment. It may be that that was what Mr W sought to clarify in his answer.
76 In any event, the Board amended its SIFC at the hearing to reflect that Mr W had sedated his wife five or six times over a 10 year period, and Mr W did not seek to dispute this. Accordingly, we do not place any reliance on this aspect of Mr W's SIFC as suggesting that Mr W is not of good character or a fit and proper person to hold a certificate of registration as a sales representative.
77 Having regard to the genuine remorse Mr W has now expressed and his insight into his offending, the changes in his circumstances, and his excellent character references, and to a lesser extent, Mr W's good record during the substantial period of time since the offences were committed, we have reached the view that notwithstanding his prior convictions, Mr W is now of good character and repute and a fit and proper person to hold a certificate.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2004) 216 CLR 253
(1990) 170 CLR 321
(1955) 93 CLR 127
(1979) 22 SASR 70