Murabito v Department of Fair Trading

The legislative scheme

1. Under s 14(1)(d) of the Act, a licence must not be granted to an individual who is a 'disqualified person'. A person is a 'disqualified person' if they have a conviction in New South Wales, or elsewhere, for an offence involving dishonesty, that was recorded in the last 10 years, unless it has been determined by the Secretary (and hence, the Tribunal on review) that the offence should be ignored: s 16(1) of the Act. An offence can only be ignored either because of the time that has passed since the offence was committed, or because the offence is of a trivial nature: s 16(2) of the Act.
2. Section 14(1)(b) of the Act provides, amongst other things, that a person is eligible to hold a licence only if the Secretary (and hence the Tribunal on review) is satisfied that the person is a fit and proper person to hold a licence.

Issue for the Tribunal 1. Is the Applicant a 'disqualified person'? 2. If so, should the offences giving rise to that characterisation be ignored either because of the time that has passed or because the offences were trivial? 3. If the offences are ignored, is the Applicant a fit and proper person to hold a real estate agent's licence?

Is the Applicant a 'disqualified person'?

1. A copy of the Applicant's current criminal history, about which there was no dispute, was tendered. In the previous 10 years the Applicant had been found to have:

• driven negligently (occasioning death) on 21 May 2012. On 16 January 2013 he was convicted and given a s 9 bond under the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) and was disqualified from driving from 16 January 2013 to 15 January 2016.
• driven a motor vehicle on 8 October 2013 during a period of disqualification, to have unlawfully possessed a false driver's licence and to have given a false name and address to police. On 4 June 2014 he was fined $1000 and his driver's licence was automatically suspended. He was fined $500 in relation to the false driver's licence and another $500 to have given a false name and address to police. On appeal regarding driving while disqualified, on 24 March 2015, the order was confirmed.
• driven a motor vehicle on 31 May 2017, while disqualified. He was convicted on 17 October 2017 and, as an habitual offender, disqualified for a further period of 2 years. The conviction was quashed by the District Court on 24 August 2018 and, instead, Judge Flannery dealt with matter under s 10(b) of the Sentencing Act, which means that the offence was proven. The Applicant was also given a good behaviour bond for 12 months and ordered to attend his psychiatrist, Dr Martin for as long as deemed necessary.
• driven on 4 December 2017 during a period of disqualification and on 6 September 2018 was given a s 9 bond and ordered to continue treatment with his treating psychiatrist for 18 months. He was further disqualified from driving from 6 September 2018 to 5 March 2019. He was also found to have given a false name and home address to police and this was taken into account under s 32 Sentencing Act, namely as a 'form 1 offence'.

1. The term 'disqualified person' is defined by the Act in 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...'. There is, however, no definition of 'offence involving dishonesty' in the Act.
2. In Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (Farah) at [39] - [40] the Tribunal discussed what should be considered in determining if an offence involves dishonesty. In essence, the test is one, simply put, if on the face of the offence, it involves dishonesty: see discussion in Berger v Council of the Law Society of New South Wales [2019] NSWCA 119.
3. The Applicant was convicted in 2014 of offences against s 50(b) of the Road Transport Act 2013 (the RT Act), for unlawful possession of a thing resembling an Australian drivers licence. Section 50(B) specifically refers to the requirement that the item is "calculated to deceive". The Applicant did not dispute that having been found to have had a false driver's licence in October 2103 was an offence involving dishonesty.
4. The Applicant was also convicted of offences under s 175(2)(b) of the RT Act for stating a false name or home address when required to by Police. The Tribunal has previously held that the offences of stating a false name to a police officer is one which involves dishonesty for the purposes of the Act: see, for example, Yelland v Commissioner for Fair Trading (2005) NSWADT 293 (Yelland).
5. I therefore find that the Applicant's offences against s 50(b) and s 175(2)(b) of the RT Act in October 2013 clearly involve dishonesty. Consequently, the Applicant has been convicted of 'offences involving dishonesty' within the last 10 years.

Should the dishonesty offences be ignored?

1. The Act provides only two bases whereby dishonesty offences can be ignored: the trivial nature of the acts or the length of time that has passed since the acts.

Trivial nature of offences

1. While the Applicant's counsel made no specific submission that the offences should be regarded as trivial, it was submitted that they were on the 'lower end of the scale'. I do not agree. The Applicant claimed that a taxi driver, who he had engaged to drive him to work because he was unlicensed, suggested the Applicant obtain a false licence in case he had to transport his children in an emergency. It is unknown what followed, and how the Applicant proceeded to obtain the false licence; the Applicant would have had to seek out someone who had the capability and who was prepared, presumably for a significant fee, to create a false licence for him. Arranging a false driver's licence does not occur without the person setting out to deceive people who may rely on that licence as a means of identification of the licence holder. Furthermore, a licence purports to represent that the person is licensed to drive a motor vehicle; clearly the Applicant knew this not to be the case. While the Applicant gave evidence about his concern for his children's health and that he was himself mentally unwell, there can be no doubt, on basic principles of right and wrong, that pursuing such a course was fundamentally wrong.
2. As to providing a false name or address to Police, the Tribunal has previously taken the view that these are not trivial offences: see, for example, Bek v Commissioner for Fair Trading (2004) NSWADT 149 (Bek); Parvin v Commissioner for Fair Trading (2005) NSWAFT 34 (Parvin); and Yellland. In my view, it difficult to envisage in what circumstances providing police with a false name and address could ever be regarded as 'trivial'.
3. I find that the Applicant's dishonesty offences should not be regarded as trivial.

Passage of time

1. I observe that the dishonesty offences occurred in October 2013, now almost 6 years ago.
2. The period of time sufficient to warrant an exercise of the discretion to ignore an offence, must be viewed in the context of the offence for which an Applicant has been convicted: see, for example, Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [52], citing Wilson v Commissioner for NSW Fair Trading [2014] NSWCATOD 79 (Wilson) at [25], and Bek at [47].
3. In Farah at [86] - [93], the Tribunal discussed decisions about whether offences should be ignored based on a passage of time. For example, in Yelland, in relation to an applicant who had been convicted of traffic offences including providing a false name, 12 months was found to be insufficient time. Similarly, in Parvin the passage of 2 years since producing someone else's licence to police when stopped in circumstances where he did not possess a licence, was insufficient time.
4. On the other hand, in Bek, JM Montgomery in taking into account the Applicant's youth at the time of the offences and his good behaviour in the intervening period found three and half years was sufficient to warrant ignoring an offence of "Driver/Rider State False Name or Address" where the applicant had been fined $300. As I observed in Wilson in relation to Bek, 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. One of the features of Bek was that, at the time of the dishonesty offences Mr Bek was only a young person. In the present matter, the Applicant was in his forties, with family responsibilities.
5. The Applicant's counsel referred me to Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 where a number of additional cases involving dishonesty offences were discussed. For example, in Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 where, in relation to offences of obtaining nearly $7000 by deception, a period of 5 years since the offences were committed was not sufficient time that the offences should be ignored. In Eleter v Director-General, Department of Fair Trading [2002] NSWADT 138, nearly four and a half years that had passed since the offence of receiving stolen property was an insufficient period for the discretion to be exercised in Mr Eleter's favour. In Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218, less than two years had lapsed since Mr Song was convicted of "goods in personal custody suspected of being stolen" and was considered an insufficient period of time. In Hadroj v Director General, Department of Fair Trading [2002] NSWADT 95, 12 months which had elapsed since Mr Hadroj's conviction for three counts of goods in custody and one count of selling second-hand goods without holding a licence, was insufficient to warrant ignoring the offence. In Salcedo itself the applicant had previously been convicted of "shoplifting" (with a value of less than $2000) and was fined $150. Also, he had been convicted of using a stolen credit card on multiple occasions in the 12 months before the hearing. Insufficient time was found to have elapsed.
6. It is clear that each case turns on its own facts.
7. In the present matter the Applicant gave evidence both by way of affidavit and oral evidence about the devastating effect the motor vehicle accident of May 2012 had upon his mental health. This was corroborated by a report dated 5 June 2018 by Dr A Martin, his treating psychiatrist.
8. The Applicant also gave evidence of various family crises that led him to drive without a licence. His wife provided a similar statement. I accept that the Applicant has had mental health issues and that, as a result, he made some poor decisions about driving due to those family crises.
9. As to why he obtained a false licence, in his evidence the Applicant was unable to offer a coherent explanation as to why he had obtained such a licence; only that he was not himself following the motor vehicle accident.
10. The Applicant gave evidence that he has received psychiatric care and although he no longer needs psychiatric assistance, he chooses to see his treating psychiatrist fortnightly. He remains medicated. He provided character references which spoke of his community participation; in addition, he apparently speaks at Beyond Blue and at the Traffic Offender Programme. His evidence was that the family crises have now been largely overcome, and he is back driving. These developments may have been very positive in determining whether to exercise my discretion in determining if sufficient time had elapsed since the dishonesty offences.
11. However, since the dishonesty offences, on 31 May 2017, the Applicant again drove a motor vehicle while disqualified. He said his child was ill and needed a doctor; he had been up all night and was stressed; and he 'panicked'.
12. In December 2017, he once more drove during a period of disqualification. Again, his explanation was that a child was ill, and he again panicked.
13. At the same time, he was also charged with again giving a false name and home address. Although in his affidavit the Applicant said that charge had been "dropped" by the police, it was conceded by his counsel that it had in fact been dealt with as a "form 1 offence". As such, the Applicant was not "convicted" of that offence for the purposes of s 16(1)(a) of the Act. However, by agreeing to the form 1 procedure, the Applicant necessarily admitted the offence: s 33(2) Sentencing Act.
14. An earlier version of the Applicant's criminal history which was before me referred to a charge of 'stalk/intimidate' on 29 May 2018. The Applicant gave evidence that the charge had been dismissed. He was asked some questions about the underlying conduct: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. His answers, it seemed to me were unhelpful in clarifying what the charge related to, and why it had not proceeded. There was no other evidence in relation to the underlying conduct. Consequently, I have disregarded the information in relation to that matter.
15. The Applicant's criminal history shows a pattern of conduct with disregard for the traffic laws, including after the dishonesty offences - notwithstanding his initial driving suspension, there were a number of repeat driving offences. Of particular concern is the repeat of having given a false name and home address to police.
16. I have accepted that the Applicant was anxious about the health of his children, but this does not excuse his flagrant disregard for traffic laws. As the Respondent observed, there were options available to him for obtaining immediate medical attention for his children in urgent situations, such as calling emergency services. However, he chose to drive in breach of his disqualification on three separate occasions, in addition to obtaining a false driver's licence. The Respondent referred me to Law Society of NSW v Foreman [1994] 34 NSWLR 408 where the solicitor had relied on work stress to justify her actions. While not directly on point, especially as the stress relied on by the Applicant was not work-related, it remains relevant that the Court of Appeal considered that the pressure under which the solicitor was operating did not demand that she falsity documents.
17. The Respondent also brought to attention that the Applicant had made a false declaration when attempting to renew his licence, in that he did not disclose that he had been found guilty of a criminal offence within the preceding 12 months. On 29 January 2018 the Applicant had submitted to the Department a hard copy renewal application. In answer to the 'Disclosure Questions' the Applicant ticked "NO" to the following question: 'During the last 12 months that you held this licence, have you been convicted in NSW or elsewhere of ANY offence?'. The Applicant had in fact been convicted before the Local Court on 17 October 2017 for driving whilst disqualified. In his evidence the Applicant admitted that he had probably lodged the form himself, but, as the 2017 matter was subject to appeal, he did not think he had to declare the conviction. Further, he said he was having treatment for his mental health condition at the time. He was asked in cross examination about previous renewal applications - for the years 2014 - 2017 in which he had also neglected to disclose any conviction. He said that he thought his staff had completed the forms on his behalf, and anyway, matters were subject to appeal. This was clearly not the case in relation to the conviction in relation to the motor vehicle accident which was not the subject of any appeal.
18. Some irregularities were also discussed in relation to the completion of his company forms and again, with the exception of the 2018 renewal (which he completed himself), he said the forms had been completed by staff. He repeated his contention that there were matters under appeal, and that he did not recall what was going on and that he had 'lost 6 years of his life' (following the motor vehicle accident).
19. Even if I were to accept that some of the earlier personal and company renewal applications had been completed by the Applicant's staff, it remained the Applicant's responsibility to ensure the forms were completed correctly before they were submitted on his behalf.
20. In relation to the 2018 forms the Applicant agreed that he had personally submitted the forms. The Applicant emphasized in his evidence that at the time these forms were lodged, his office had been closed and he had had to find alternative work; he was unable to drive; he had been stressed and was under psychiatric care. Although it was submitted on his behalf that he was not aware he had mental health issues, a report of Mr S Bornstein, clinical psychologist dated 27 September 2017, which had been provided by the Applicant, noted he had reported that he had been referred for treatment for PTSD following the motor vehicle accident. At the time of the report, the Applicant reported still suffering 'breakthrough symptoms'. Mr Bornstein noted that Mr Murabito 'now realises the extent and nature of his PTSD…' and he proposed ongoing management of the Applicant. I do not accept that, at the time of lodgment of the forms, the Applicant was unaware of his mental health issues. That is not to say that I accept that his mental health issues excused his failure to accurately complete the forms; on the contrary, it should have made him more vigilant to ensure he completed the forms correctly, especially as, on his evidence, he was keen to resume work as a real estate agent. In Salhab v Department of Fair Trading [2018] NSWCATOD 122 at [97], the Tribunal considered failure to declare criminal convictions on applications for licensing, as evidence of dishonesty on the Applicant's part. It remained incumbent upon the Applicant to ensure the forms were accurately completed, and, as a simple statement of fact, they were not.
21. Also, the Applicant was unable to explain why no notification had been made to the Department about changes in the company's shareholders and office bearers, as evidenced by ASIC searches - he thought there had been some requirement by financiers for the changes. Section 24(1) of the Licensing and Registration (Uniform Procedures) Act 2002 requires that the licensee notify the relevant licensing authority, within 14 days after the change of any licensee's name, address or other registered particulars, and this had not occurred.
22. The Respondent contended, and I agree, that the Applicant's dealings with the Department demonstrated either a contempt for regulatory authorities or a cavalier approach to regulatory requirements that does not bode well for a person wishing to work in an industry which demands that those given the privilege of a licence comply with regulatory requirements. In this regard the Applicant had acted, in my view, either deliberately or recklessly.
23. It appeared to me that the Applicant did not fully accept responsibility for his traffic history. Neither did his explanation in relation to his failure to inform the Department of his convictions nor to inform it of his company changes persuade me that he fully accepts responsibility for those actions.
24. In the real estate industry, honesty and trust are of paramount importance: Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109, at [44]. It seemed to me that, somewhat like Mr Stojanovic, the Applicant's attitude to his misconduct, focused on the effect that suspension of his (driver's) licence had on him and his family, rather than on the seriousness of his misconduct in continuing to drive while suspended and to obtain utilise a false licence and give the police false details on two occasions.
25. Confidence in the real estate industry is required so that the public can have be assured that the person with whom they entrust their property transactions is not only suitably qualified, but is trustworthy and with a respect for the law. The Applicant has been convicted of dishonesty offences and I do not accept that sufficient time has elapsed since those offences, particularly having regard to the further offences that have occurred since that time, and to the Applicant's failure to meet reporting obligations. Consequently, I am not prepared to exercise the discretion in s 16(1) in the Applicant's favour so as to ignore the dishonesty convictions.
26. Because s 14(1)(d) of the Act provides a mandatory prohibition against the issue of a licence where there has been a dishonesty conviction within the previous 10 years and the conviction is not ignored. Consequently, it is unnecessary for me to consider if the Applicant is a fit and proper person to hold a real estate licence under s 14(1)(b) of the Act. In view of my observations above, however, it is unlikely that I would have found that the Applicant was a such a person.

Decision 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2019