Murabito v Department of Fair Trading

Passage of time

I observe that the dishonesty offences occurred in October 2013, now almost 6 years ago.
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].
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.
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.
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.
It is clear that each case turns on its own facts.
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.
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.
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.
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.
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'.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (7)

Cited By (2)